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848 | null | RELEVANT LEGAL FRAMEWORK AND PRACTICE 62. The relevant legal framework and practice are summarised in the Court’s judgment in the case of Zoltán Varga (cited above, §§ 66-83). THE LAW PRELIMINARY REMARKS 63. In its Zoltán Varga judgment, the Court made, inter alia, the following preliminary remarks: “84. The Court notes that matters associated with the surveillance operation at the heart of the present ... applications have been a subject of concern and intense general interest for a decade or so. This has been reflected particularly in the media attention that the subject has been given and in the many associated and interrelated investigations and other types of official proceedings, some of which are still ongoing. 85. The Court further notes that the present ... applications are interrelated, between themselves and with the similar applications of [Mr Haščák]. They all comprise an extensive number of factual and procedural elements that have been submitted to the Court gradually as matters have evolved at the national level over time. 86. As a result, some of the facts and the parties’ observations submitted in the present proceedings before the Court have been superseded by further national developments. 87. In these circumstances the Court finds it opportune at the outset to delineate the parameters of the present ... applications for the purposes of its review. ... 89. In generic terms, the applicant’s complaints may be characterised as concerning the implementation of the three warrants, which to a large extent corresponds to the production of the primary and derivative material. He further complained about the partly past, and partly still persisting, retention of that and some other material, the alleged leak of information and associated procedural matters. 90. It is not disputed that the applicant was concerned by the implementation of the [impugned] warrants and that this implementation resulted in the production of primary, derivative and other material that also, at least in part, pertained to him. 91. It is likewise uncontested that, following their implementation, the [impugned] warrants were annulled by the Constitutional Court essentially as having been unlawful, that their implementation and the creation of various material on the basis thereof by SIS was found by the [BRC] to have violated the applicant’s right to protection of his personal integrity, and that some material originating from the implementation of warrants 1 and 2 was destroyed by the SIS in 2008, as was any other material stemming from the implementation of the [impugned] warrants that fell within the control of the BRC, in 2016 and 2017. 92. The issues remaining in dispute are essentially the effectiveness and exhaustion of other remedies, ... and the existence of adequate safeguards against abuse of State power. 93. As the present case involves an allegation of an individual interference with the applicant’s rights, there is no need for the Court to rule in abstracto on the Slovakian legislation regulating covert surveillance in the intelligence‑gathering context. Rather, the Court must confine itself to the circumstances of the case and take into account the nature and extent of the interference alleged by the applicant (see, for example, Pastyřík v. the Czech Republic (dec.), no. 47091/09, 31 May 2011).” 64. The Court finds that these remarks apply mutatis mutandis to the present case, in particular to the applicant’s complaints other than those made under Article 6 of the Convention. The Court will return to the issue of the scope of these complaints below. JOINDER OF THE APPLICATIONS 65. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 66. As regards the implementation of the two warrants, the applicant complained that there had been a lack of effective supervision and review, that the applicable framework provided no protection to persons randomly affected by surveillance measures, that that had resulted in the production of various items of intelligence material (which continued to exist or about whose destruction there were doubts), and that the internal rules applicable to its retention by the SIS were inadequate. Furthermore, the SIS had failed to prevent a leak of information originating from the implementation of the warrants, and the applicant did not have at his disposal an effective remedy in respect of the above complaints. 67. As in Zoltán Varga (cited above, § 95), the Court considers that these complaints fall to be examined under Article 8 of the Convention, the relevant part of which 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.” AdmissibilityThe parties’ arguments The parties’ arguments The parties’ arguments 68. The Government pointed out that the applicant’s constitutional complaint about the two warrants had been rejected as belated (see paragraph 11 above). Furthermore, in relation to the SIS, the applicant had had at his disposal and had resorted to effective remedies before the ordinary courts (an action for the protection of his personal integrity and claims for damages under the SL Act), the proceedings in respect of which were ongoing. In these actions, he had not sought any financial compensation. Therefore, in respect of his Article 8 complaints, the available domestic remedies had not been exhausted. 69. Furthermore, as to the alleged leak of information from the SIS, in their initial submissions before the Court the Government argued that no occurrence of any such leak had been established. However, in their submission of 10 November 2021, they added that the applicant had failed to raise any assertions in that regard in his action in the ordinary courts and in his constitutional complaints; he had thus failed to exhaust the available domestic remedies. 70. In so far as in his submissions made to the Court after the surfacing in 2018 of the above-mentioned audio recording (which was apparently related to the Gorilla operation) the applicant might be understood as seeking to challenge the investigative and prosecuting authorities’ use of that recording (see paragraph 73 below), the Government argued that this was a separate matter beyond the scope of the present case. 71. The applicant disagreed and contended that the remedies referred to by the Government were ineffective for the purposes of the Convention. Even though by way of precaution he had resorted to all existing remedies, this had yielded no results, the common denominator being the unwillingness of any official body to confront the substance of his grievances. 72. As to the Government’s specific argument in relation to any leak of information from the SIS, the applicant replied in his submissions of 9 December 2021 that he had “never unequivocally alleged that a leak had occurred and in fact, at the time the [present applications had been] lodged (2012 and 2016), that would not have been possible (there [having been] no evidence then or now upon which [the applicant] could [have based] such an allegation)”. 73. Nevertheless, in his earlier submissions of 2019, 2020 and 2021, he had informed the Court of the discovery and procedural use of the audio recording presumably originating from the Gorilla operation, had argued that its exploitation in criminal proceedings had been unlawful and in violation of his Convention rights, and had requested that the Court make it clear that the recording must be destroyed. The Court’s assessment (a) Scope of the complaints 74. The Court for its part notes at the outset that the parameters of its review in these proceedings are defined by (i) the content of the three applications and (ii) its decision – given at the time that the respondent Government were given notice of them (Rule 54 of the Rules of Court) – to declare a part of them inadmissible. Any complaints concerning the issuance of the impugned warrants by the BRC, in respect of which the Constitutional Court rejected the applicant’s complaint as belated (see paragraph 11 above), are outside the scope of the present case. 75. As regards the matter of any leak of information by the SIS, the Court is perplexed by the intended meaning of the applicant’s submissions to the Court prior to 9 December 2021. It notes their contents, as well as the finding in Zoltán Varga (§ 126) that there had been no claim made at the domestic level or before the Court (Rule 47 of the Rules of Court) regarding a failure to fulfil any positive obligation that the State might have in connection with the fact that material apparently having to do with the Gorilla operation was in the public domain. Accordingly, the Court concludes that there is in fact no complaint to be adjudicated in this respect. 76. On the issue of the practical and procedural status of the audio recording retrieved by the investigators in 2018 – the authenticity of which as a primary material from the Gorilla operation was addressed by the PPS in August and September 2021 (see paragraphs 56 et seq. above), and in respect of which the Court made no pronouncements in its Zoltán Varga judgment, delivered on 20 July 2021 – the Court likewise notes that this is beyond the subject matter of the present applications (Rule 47 of the Rules of Court). The Court is nevertheless not prevented from taking the status of that material into account by way of background information for the purposes of assessing the applicant’s original complaints (ibid., §§ 123, 124 and 127; see also paragraph 95 below). (b) Admissibility of the complaints 77. As to the remaining Article 8 complaints, the Court observes that in its judgment in Zoltán Varga (§§ 100 and 112 et seq.) it examined essentially the same non-exhaustion objection by the Government. In so doing, it noted that the objection concerned the implementation of the impugned warrants and the production by the SIS – and continued existence under its control – of the primary and derivative material resulting from their implementation. As the (i) implementation of those warrants and (ii) the production and existence of the said material had been intrinsically interrelated, the question of exhausting the available domestic remedies in that respect inherently correlated with the possibility of securing its destruction. Where the continued existence of the impugned material was in itself alleged to constitute a violation of Mr Varga’s rights, for a remedy to be effective for the purposes of the Convention it had in principle to be capable of leading to the destruction of that material, which the action advocated by the Government was not (ibid., §§ 114-18). 78. The Court notes that the applicant’s complaints and the parties’ arguments in the present case are essentially the same as those in Zoltán Varga, and so is the Court’s reasoning in respect of the rejection of the Government’s non ‑ exhaustion plea. Indeed, that reasoning applies in the present case a fortiori in view of the fact that Mr Varga’s action in the civil courts is still pending following an appeal on points of law by the SIS (see paragraph 40 above) – a fact that was not known to the Court at the time of the Zoltán Varga judgment (see its paragraphs 59 et seq.). 79. The Government’s non-exhaustion objection must therefore be dismissed. 80. In these circumstances, the Court notes that the applicant’s remaining Article 8 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. MeritsParties’ arguments Parties’ arguments Parties’ arguments 81. The applicant argued that any records known to him regarding the destruction of the primary material by the SIS were not conclusive as to what exactly – and whether all of the primary material – had been destroyed. The BRC, as the court that had issued the impugned warrants, had repeatedly refused to exercise any supervisory jurisdiction in that regard. It was undisputed that the SIS still kept derivative material originating from the implementation of those warrants. The applicable statute provided that it could only be accessed by a court, but it contained no rules as to which court and within which context. Any details were to be governed by the internal rules of the SIS, which, however, were inaccessible to him. As to the other material kept by the BRC (which had meanwhile also been destroyed), the reason for its destruction had had nothing to do with the protection of his individual rights and, until that destruction, its being kept by the BRC had constituted an interference with those rights. The applicant concluded that none of the authorities to which he had turned for protection had provided him with any such protection – including the ordinary courts and administrative-law tribunals dealing with his actions and applications, the issuing court (the BRC), the Constitutional Court, the PPS, the Office of the Cabinet, Parliament and the SIS itself. 82. The Government contended that the crux of the applicant’s argument was that there was still in existence material that had been produced by the implementation of the two warrants and that it should be destroyed. In that regard, it was to be noted that, at the time of their implementation, those warrants had been valid and uncontested, and accordingly had had to be presumed lawful and justified. 83. As the domestic authorities had established, all primary material produced by the implementation of the warrants had been destroyed as unusable. In contrast to destruction of material obtained unlawfully, the destruction of unusable material did not necessitate the presence of a judge. Neither did any need for the presence of a judge during such destruction stem from the case-law of the Court. The applicant’s assertion that in the absence of judicial or similar guarantees he could not be certain whether all primary material originating from the surveillance under the two warrants had actually been destroyed was purely speculative and hypothetical, and the Convention imposed no duty on the States to refute such arguments. Nevertheless, he had been afforded (and through his lawyer had made use of) the opportunity to inspect a redacted version of the SIS minutes of the destruction on 2 April 2008 of the said material. 84. It was true that in 2012 the Constitutional Court had found a violation of a number of Mr Varga’s rights in connection with the warrants and had issued orders for their annulment. However, the court had reached that finding only after the primary material relating to their implementation had been destroyed in 2008. 85. The Government furthermore pointed out that any further material under the control of the BRC had also been destroyed, in 2016 and 2017, respectively. 86. As to the derivative material arising from the surveillance carried out under the two warrants, it had not been destroyed but had been stored, in compliance with section 17(6) of the SIS Act. As such, it could not be accessed by anyone but a court or be used in any proceedings before public authorities. The Government left it to the Court to determine whether this complied with the Convention. The Court’s assessment 87. Noting again that, to a significant extent, the applicant’s Article 8 complaints are identical and arise from an identical factual and procedural background to that examined in Zoltán Varga, the Court finds the case-law cited and applied in that case applicable in the present case accordingly. First of all, this concerns the questions of the applicability of Article 8 to the applicant’s complaints and the interference with his rights under that provision (ibid., §§ 144-49). As to the latter issue, the Court observes specifically that neither at any domestic stage nor before the Court has any authority questioned that the applicant was subjected to surveillance on the basis of the two warrants and that various items of material arising from their implementation and at least in part concerning him were or are still retained by the SIS and the BRC. On the contrary, this contention appears to have been acknowledged (by implication) as a fact. 88. The Court therefore finds that the implementation of the two warrants and the retention of the resulting material fell within the ambit of Article 8 of the Convention and constituted an interference with the applicant’s right to respect for his private life. 89. As regards the compatibility of that interference with the requirements of the second paragraph of that Article, and in particular with the requirement for that interference to be “in accordance with the law”, the Court would again refer to the general principles cited in cited in Zoltán Varga (§§ 150 and 151). It reiterates especially that, 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 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 (see, for example, Segerstedt-Wiberg and Others v. Sweden, no. 62332/00, § 76, ECHR 2006‑VII, with further references). (a) Implementation of the warrants 90. As to the compliance of this interference with the requirements of Article 8 § 2 of the Convention in respect of the implementation of the warrants, the Court found in Zoltán Varga that it had directly led to the production of the primary material, that the implementation of the warrants and the production of that material had been intrinsically connected, and that they were accordingly to be examined together (ibid., § 152). Moreover, it held that the implementation of the warrants had in principle had a statutory basis (§ 153), but that it had inherently been tainted by serious deficiencies in those warrants and in the associated procedures (§§ 154, 156 and 157). 91. The Court is aware that the deficiencies in question were found by the Constitutional Court when examining the individual complaints lodged by Mr Varga, but that a similar complaint lodged by the applicant was rejected as belated (see paragraph 11 above). Nevertheless, it notes that the deficiencies were attributable to the issuing court (the BRC) and finds that in essence they were of an objective nature (ibid., §§ 33 and 55). Accordingly, the fact that the applicant’s own constitutional complaint in respect of the BRC was rejected does not prevent the Court from taking those deficiencies into account in the assessment of what is at stake in the instant case – namely the implementation of the warrants by the SIS, in respect of which the Constitutional Court declined to issue a decision as it found that it had no jurisdiction in the matter (ibid., § 32). 92. The Court is likewise aware that, unlike in the case of Mr Varga, in the present case there was no finding by the ordinary courts that the implementation of the warrants by the SIS had violated the applicant’s right to the protection of his personal integrity (contrast § 59 of the Zoltán Varga judgment). It is, however, of the view that if this factual distinction made any difference at all to the assessment of the present case, it was to the benefit of the applicant. The reasons are twofold. 93. Firstly, the ordinary courts in the case of Mr Varga made no assessment of the actions of the SIS and based their findings – currently subject to an appeal on points of law (see paragraph 40 above) – on the quashing of the warrants by the Constitutional Court (ibid., §§ 154-55). Secondly, the fact that the outcome of an action brought by Mr Varga that was essentially identical to that brought by the applicant in the instant case has been even less favourable for the applicant than for Mr Varga accentuates the conclusion that the action in question has constituted no effective remedy in the applicant’s individual case. 94. Having considered all other means of legal protection against arbitrary interference (ibid., §§ 158-61), the Court concluded in Zoltán Varga that – in view of the lack of clarity of the applicable jurisdictional rules and the lack of procedures for the implementation of the existing rules and flaws in their application – when implementing the warrants the SIS had practically enjoyed discretion amounting to unfettered power, which had not been accompanied by a measure of protection against arbitrary interference, as required by the rule of law. It had accordingly not been “in accordance with the law” for the purposes of Article 8 § 2 of the Convention (ibid., § 162). 95. The Court finds that the situation in the present case is aggravated by two additional factors. Firstly, while it is accepted that the implementation of the warrant of 2005 interfered with the applicant’s right to respect for his privacy, there has been no indication that the warrant actually targeted him. It is accordingly plausible that he was affected in a random manner by its implementation, as he has contended. In that respect, the applicant further argued (and that argument has in no way been refuted by the Government) that the applicable law actually provided no protection to persons randomly affected by covert surveillance measures. Secondly, as appears to be exemplified by the recent controversy between the Prosecutor General and the OSP (see paragraphs 56 and 60 above), there is a protracted fundamental uncertainty in the applicable legal framework as to the practical and procedural status of the presumably leaked primary material from the implementation of the two warrants. (b) Storing of the derivative material from the implementation of the warrants 96. As to the storing of the derivative material from the implementation of the two warrants, under section 17(6) of the SIS Act, the Court found in Zoltán Varga that it had been subject to confidential rules which had been both adopted and applied by the SIS, with no element of external control. Such rules had clearly been lacking in accessibility and had provided Mr Varga with no protection against arbitrary interference with his right to respect for his private life (ibid., § 169). The retention of the said material had therefore not been “in accordance with the law” within the meaning of the second paragraph of Article 8 of the Convention (§ 171). These findings directly apply in the present case. (c) Conclusions 97. It follows from the foregoing that, on account of the implementation of the two warrants and the retention by the SIS of the derivative material from their implementation, there has been a violation of the applicant’s right under Article 8 of the Convention to respect for his private life. 98. At the same time, in view of that finding and the reasoning behind it, the Court considers that it is not necessary to examine on the merits the remainder of the applicant’s Article 8 complaint. REMAINING ALLEGED VIOLATIONS OF THE CONVENTION 99. The applicant complained that the “reasonable time” requirement had not been respected in the Gorilla investigation and that by their public statements in relation to that investigation the prosecuting authorities and officials of the Ministry of the Interior had breached his right to be presumed innocent, as provided in Article 6 §§ 1 and 2 of the Convention, the relevant parts of which reads as follows: “1. In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time ... 2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.” 100. The Government argued that as no charges had been brought against the applicant either expressly or in substance, his Article 6 complaints fell outside the scope of that provision ratione materiae. Moreover, they contended that the applicant could (and under Article 35 § 1 of the Convention should) have asserted any claims against the public officials who in his view had had interfered with his reputation by way of an action for the protection of personal integrity. Given that he had not done so, he had failed to exhaust the available domestic remedies. 101. The applicant argued that, given the circumstances, he had been substantially affected by the Gorilla investigation from the very moment that it had been opened. In his observations after the Government had been given notice of the present case he successively updated his complaint concerning the alleged violation of the presumption of his innocence in that it related to various public statements made in relation to the Gorilla investigation between 2012 and 2019. He explained that the gist of the complaint was that the impugned statements had strengthened his position as a person having in substance been charged with a criminal offence. Given that he was being denied that procedural status in the investigation, he had been prevented from defending his rights in it. The essential problem was thus the criminal proceedings. An action in civil courts for the protection of personal integrity had by no means any potential to redress it. 102. The Court notes first of all that the present two complaints concern the Gorilla investigation and not the charges laid against the applicant on 1 December 2020 or any public statements made in relation to them. 103. The common denominator of the two complaints is that for them to fall within the material scope of Article 6 of the Convention the applicant must have been charged with a criminal offence. As to the Gorilla investigation, it is clear that the applicant has never been charged with any offence in the context of it. Involving complex factual and procedural questions and a large number of possible offences (see paragraph 44 above), this investigation has been ongoing for some ten years. As acknowledged by the Constitutional Court (see paragraph 50 above), the investigation raises important societal issues and it is only natural that it is subject to public debate. In so far as this part of the application has been substantiated, there is no indication that any of the impugned public comments exceeded the limits of a legitimate public debate by referring to the applicant in a way going beyond the limits of Article 6 § 2 of the Convention (contrast Allenet de Ribemont v. France, 10 February 1995, § 41, Series A no. 308, and Khuzhin and Others v. Russia, no. 13470/02, § 94 and 96, 23 October 2008). 104. In that regard, the Court observes in particular that in view of the state of affairs in 2016 as regards any impact of the investigation on the applicant, the Constitutional Court concluded that there had been nothing to place the applicant in the position of being so substantially affected by criminal proceedings as to render him a person charged with a criminal offence in substance (see paragraph 52 above). While certain shortcomings in communication with the media on the part of the heads of the Gorilla investigation team had been acknowledged by the OSP, these were not such as to go beyond incurring civil-law liability for libel (see paragraphs 48 and 52 above). 105. As to any public statements (see paragraph 54 above) in the period after the finding and releasing into the public domain (2018) of the audio recording that appears to have a connection with the Gorilla operation, the Court notes that, rather than involving any criminal charge against the applicant in substance, they essentially reveal a lack of clarity as to the practical and procedural status of the presumably leaked primary material from the implementation of the two warrants, which is a different matter that has been addressed by the Court under Article 8 of the Convention (see paragraph 95 above). 106. Accordingly, the Court concludes that neither the impugned public statements nor any other circumstance indicated by the applicant has placed him in the position of a person who has been charged with a criminal offence in the Gorilla investigation (see, for example, Eckle v. Germany, 15 July 1982, § 73, Series A no. 51, with further references; and Casse v. Luxembourg, no. 40327/02, §§ 16 and 74, 27 April 2006). In view of the nature of the matters that are the subject of the Gorilla investigation and their background, mere enquiries into them cannot be seen as involving charges against the applicant (contrast Šubinski v. Slovenia, no. 19611/04, § 68, 18 January 2007). 107. Accordingly, the remainder of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected, in accordance with Article 35 § 4. APPLICATION OF ARTICLE 41 OF THE CONVENTION 108. 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.” 109. The applicant claimed 66,000 euros (EUR) in respect of non ‑ pecuniary damage. 110. The Government contested the claim as being clearly excessive. 111. The Court awards the applicant EUR 9,750 in respect of non ‑ pecuniary damage, plus any tax that may be chargeable. 112. 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. | Zoltán Varga v. Slovakia |
207 | Access to a lawyer | II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE 24. A. Luxembourg law and practice ... 4. Instructions to police following the Salduz judgment 31. The relevant legislative provisions have been complemented by internal circulars. 32. In particular, the “ Luxembourg Police Memorandum No. 49/2011 ” of 20 June 2011 – which also applies to customs officers interrogating a person deprived of his liberty – provides that officers must comply with the Court ’ s case-law (see Salduz v. Turkey [GC], no. 36391/02, ECHR 2008, and Dayanan v. Turkey, no. 7377/03, 13 October 2009), on pain of cancellation of any procedures initiated, and specifies that the relevant chapters of the police regulations have been amended accordingly. 33. Prior to this memorandum, an exchange of correspondence took place between the public prosecutor ’ s office and the police department. In a circular sent out on 13 May 2011 the Principal State Prosecutor asked the Director General of Police to instruct all police officers to ensure that any accused person deprived of his liberty had access to the effective assistance of a lawyer during the interrogations which he underwent during his detention. On 15 June 2011, at the request of the Director General of Police, the State Prosecutor provided the following information : “ ... The right of legal assistance - applicable procedures Under our current domestic law, the right to the assistance of a lawyer is applicable to specific types of police interrogations of persons deprived of their liberty, that is to say : - police interrogations of individuals detained in in flagrante proceedings ( Article 39(7 ) of the Code of Criminal Procedure ) and - police interrogations of individuals remanded in custody concerning acts other than those with which they have been charged ( Article 52(3) of the Code of Criminal Procedure ). Inasmuch as recent case -law of the European Court of Human Rights has particularly emphasised the need for such assistance in respect, in principle, of any police questioning of an ‘ accused ’ deprived of his liberty, the benefit of that right should be extended to: - police interrogations in the framework of a preparatory investigation, by way of letters rogatory from the investigating judge, of the individual deprived of his liberty pursuant to a warrant to appear or a domestic or European arrest warrant. ... The scope of the right to the assistance of a lawyer In my letter of 13 May 2011 I pointed out that the right to the assistance of a lawyer during an interrogation was not confined to the lawyer ’ s physical presence; it should also enable the person under interrogation to receive help and protection from the lawyer and allow the lawyer to assist the person effectively. This should be taken to mean: ... arrangements should be made to enable the detainee to talk to his lawyer before the interrogation and, in particular, after receiving a summary of the facts relevant to the interrogation ... That conversation should take place under such conditions as to guarantee its confidentiality. There may be compelling reasons for not allowing such an interview, though only in exceptional cases and subject to the authorisation of the judge or prosecutor in charge, who must be contacted on the matter...” ... C. European Union texts 37. The relevant passages of Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings provide : “ Article 7 Right of access to the materials of the case 1. Where a person is arrested and detained at any stage of the criminal proceedings, Member States shall ensure that documents related to the specific case in the possession of the competent authorities which are essential to challenging effectively, in accordance with national law, the lawfulness of the arrest or detention, are made available to arrested persons or to their lawyers. 2. Member States shall ensure that access is granted at least to all material evidence in the possession of the competent authorities, whether for or against suspects or accused persons, to those persons or their lawyers in order to safeguard the fairness of the proceedings and to prepare the defence. 3. Without prejudice to paragraph 1, access to the materials referred to in paragraph 2 shall be granted in due time to allow the effective exercise of the rights of the defence and at the latest upon submission of the merits of the accusation to the judgment of a court. Where further material evidence comes into the possession of the competent authorities, access shall be granted to it in due time to allow for it to be considered. ... ” ... THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 39. The applicant complained of the lack of legal assistance during his questioning by the police on 17 December 2009 and of the lack of effective legal assistance before the investigating judge on 18 December 2009. He further complained that the Court of Appeal, and later the Court of Cassation, had failed to provide redress for the consequent infringement of his defence rights. He relied on Article 6 of the Convention, which provides : “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: ... (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 parties ’ submissions a) The applicant 52. In his observations of 14 April 2014 the applicant submitted that the minutes of the police interrogation of 17 December 2009 mentioned neither the fact that the applicant had been explicitly informed of the right to assistance by counsel from the outset of the proceedings nor any exceptional circumstances justifying the restriction of his right of access to a lawyer. He considered that the legal requirements set out in Article 39(7) of the Code of Criminal Procedure had been disregarded in line with the systematic and widespread practice of the police at the material time. His insistence on seeing a lawyer in line with practice in the United Kingdom clearly demonstrated his initial determination not to waive his right to legal assistance; he could therefore not be deemed to have willingly agreed to take part in the police questioning without the assistance of a lawyer. In his in his further submissions of 6 January and 2 February 2015 the applicant noted the lack of relevant domestic legal provisions. The case before the Court showed that Articles 39 and 52 of the Code of Criminal Procedure did not apply where an individual was arrested under a European arrest warrant. To the Government ’ s submission that new legislation had been proposed recently on that subject, the applicant replied that even supposing that bill was enacted, it only provided for access to the case file after the first interrogation by the investigating judge, not during police questioning, so that legal assistance was still not real or effective at the police custody stage. At all events, neither the proposed legislation nor the circulars from the Principal State Prosecutor had had the desired effect in the past. 53. As regards his first appearance before the investigating judge on 18 December 2009, the applicant stated that both the spirit and the letter of Article 84 of the Code of Criminal Procedure implied that before and during the first interrogation no communication was possible between the accused and his lawyer. Furthermore, pursuant to Article 85 of that Code, the latter could not consult the case file before the first interrogation. The mere presence of a lawyer, who is only entitled to remain silent, could in no way constitute real and effective assistance. The applicant emphasised that the main act during the preliminary examination was the immediate pressing of charges against the applicant, even before he had been questioned about the facts, as transpired from the minutes of 18 December 2009. Moreover, with particular reference to Emilian-George Igna v. Romania (no. 21249/05, 26 November 2013), he emphasised that the preliminary interrogation could lead to the accused being remanded in custody. Domestic case-law confirmed that the right of access to the case file had still not been enshrined in legislation before the preliminary examination before the investigating judge ... With reference to the case of Sapan v. Turkey ( judgment delivered by a three-judge committee, no. 17252/09, § 21, 20 September 2011) and relying on Article 7 of European Directive 2012/13/ EU of 22 May 2012, the applicant concluded that denying him access to the case file prevented the lawyer from providing any effective assistance to his client during the preliminary examination. 54. The applicant added that the fairness of the proceedings had been undermined by the fact that the judgment of the Court of Appeal, as confirmed by the Court of Cassation, had not provided redress for the infringement of his defence rights. Instead of nullifying the police questioning and the first interrogation by the investigating judge, the Court of Appeal had referred to statements given by the applicant before the police without the assistance of a lawyer in assessing the credibility, or at least the consistency, of his statements. The Court of Appeal had, at least partly, based its argumentation on the statements given by the applicant in breach of his rights. By merely noting, therefore, that the applicant had recorded his agreement to giving oral evidence in the absence of a lawyer before the police, the judges and prosecutors had not assessed whether the alleged waiver of the services of a lawyer had been voluntary and fully informed. b) The Government 55. In their observations of 27 February 2014 the Government acknowledged that the applicant had not been assisted by a lawyer during his questioning by the police. However, they pointed out that the lack of legal assistance did not automatically amount to a violation of Article 6 of the Convention ( see Zdravko Petrov v. Bulgaria, no. 20024/04, 2 3 June 2011, and Stanca v. Romania, no. 34116/04, 24 July 2012 ) and that an express or tacit waiver of that right was accepted by the Court ( see Yoldaş v. Turkey, no. 27503/04, 23 February 2010). According to the Government, the applicant had been served with the European Arrest Warrant on his arrest in the United Kingdom, so that at his questioning on 17 December 2009 he had known for thirteen days the charges against him, and he could have sought the assistance of a lawyer of his own choice with whom to discuss the approach to be adopted in his defence. If the applicant had initially requested the assistance of a lawyer during the police questioning, he had received the necessary explanations concerning the procedure and the applicable texts – which unambiguously granted the right to legal assistance as from the first interrogation – and had been advised, for reasons of the efficient running of the investigation, to begin discussions pending the arrival of the officially appointed lawyer. The applicant had approved that procedure voluntarily and without coercion, and had waived, with full knowledge of the facts, the benefit of the presence of counsel at that very early stage in proceedings, having been informed that a lawyer would be present during the exchange with the investigating judge, which had been the case. In that regard, the Government, while accepting that he had not been notified of his rights in writing against receipt, emphasised that the applicant had been informed of the details of the usual procedure in Luxembourg and had signed the official record, which had been translated in full by the accredited interpreter assisting him; therefore, the applicant ’ s waiver had been unequivocal and attended by the requisite minimum guarantees. Last but not least, the Government submitted that the statements given during the first interview had in no way influenced the final decision, because during both the police questioning and the interrogation by the investigating judge and in the trial courts the applicant had consistently and vehemently contested the charges. Therefore, the conviction had not been based in any way on the statements or any confession given without the assistance of a lawyer; the judges had been persuaded by the various witness statements and the medical reports. Accordingly, the oral evidence given at the first interview had been completely confirmed during the subsequent proceedings, the presence of a lawyer. In their observations of 14 January 2015 the Government explained that the exchange of letters between the public prosecutor ’ s office and the police and customs departments ( see paragraphs 31 to 33 above ) showed that the provisions of Articles 39 and 52 of the Code of Criminal Procedure concerning police questioning were automatically applicable to the right to legal assistance of an individual arrested under a European arrest warrant. That clarification as regards the applicable legislation had been made at the beginning of 2011, when the Salduz and Dayanan judgments had just begun to have a real international impact; the applicant ’ s proceedings had been ongoing at the time and had benefited from the State Prosecutor ’ s explanations. The service instructions had been backed up with a wide range of meetings in the police and customs services, in order to ensure that the instructions were followed to the letter. A bill had since been tabled reinforcing procedural safeguards in criminal matters in line with the Salduz precedent and transposing the relevant European directives. 56. The Government further submitted that the availability of legal assistance as from the first interrogation by the investigating judge was prescribed by law. They explained that the key element of the case before the investigating judge was the victim ’ s deposition as it emerged during the interrogation. The fact that the applicant ’ s lawyer had been unable to consult the case file in advance had had no effect on the applicant ’ s defence because it had never been a question of the judge simply reading out the indictment and presenting the applicant with the victim ’ s allegations. Nevertheless, the lawyer ’ s role had not been confined to his mere presence alongside the applicant, because he had been free to interrupt and ask questions throughout the interrogation. Thanks to his attendance at that meeting, the lawyer had subsequently had more than one year to prepare his client ’ s defence, with full knowledge of the contents of the case file. As regards the preliminary talks between the applicant and his lawyer before the interrogation, the Government explained that the lack of regulations allowed for full freedom in that sphere; the client could at any time, on request, engage in consultations with his lawyer, including before the questioning at the preliminary stage of the investigation. It was true that in practice the procedure was easier to implement if the defendant knew the lawyer and had contacted him in advance; on the other hand, the procedure for appointing a lawyer on his behalf meant that the latter had to be appointed at the time of the first interview. However, it was wrong to suggest that the Code of Criminal Procedure prevented the applicant from communicating with his lawyer and rendered the latter ’ s intervention wholly ineffective. The Government emphasised that communication was possible without restriction and that the lawyer could ask to speak at any time during the interrogation before the investigating judge; only full consultation of the case file was impossible before the end of the interrogation. To the applicant ’ s criticism that he had suddenly found a lawyer unknown to him setting beside him, the Government replied that that was inherent in the procedure for appointing a lawyer, as the applicant had been unable to appoint counsel known to him. The Government added that Mr W., who had been appointed at the applicant ’ s request, had not been prevented from intervening but had probably seen no need to do so at that stage in the proceedings; moreover, the applicant had never complained about his lawyer, who had continued to assist him throughout the proceedings. 57. The Government considered that the Court of Appeal and the Court of Cassation had properly analysed the applicant ’ s plea under Article 6 of the Convention, but had dismissed it on the ground that he had never been refused legal assistance. Given that neither the Court of Appeal nor the Court of Cassation had found any breach of his defence rights, it had not been incumbent on those courts to provide redress. According to the Government, even if the Court of Appeal had decided to nullify the first interview, such a decision would have had no effect on his conviction, as the trial court had based the conviction on other elements in the case file. The Court should pursue a flexible approach based on an overall reading of the situation in the light of the whole proceedings in order to satisfy itself that the aims of Article 6 had been secured ( see John Murray v. the United Kingdom, 8 February 1996, Reports of Judgments and Decisions 1996 ‑ I, and Rupa v. Romania (no. 2), no. 37971/02, 19 July 2011 ). 2. Third party submissions 58. The non - governmental organisation Fair Trials International submitted that the right to a lawyer was a fundamental guarantee which facilitated the exercise of other rights, and extended beyond preventing suspects from confessing to the offence. During police questioning lawyers acted as a “ gateway ” to other rights and generally helped prevent any prejudice to the suspect ’ s defence. The third party illustrated the role played by the lawyer by means of several examples, including ensuring that the suspect had understood the oral or written information provided concerning his rights, or again supervising compliance with procedural requirements such as the length of interrogations, the wording of the questions put, and so on. 59. Despite its fundamental importance, the right of access to a lawyer was not sufficiently protected across Europe. For instance, many suspects had major difficulties in exercising that right, particularly owing to legal or practical restrictions, the prevalence of dubious alleged “ waivers ”, and ineffective measures by the courts to remedy the violations in question. 60. Accordingly, the European Union had, in 2009, adopted a roadmap geared to reinforcing suspects ’ procedural rights, and on 22 October 2013 it issued a directive enshrining the right of access to a lawyer, attaching a series of safeguards to waivers of those rights and requiring the courts to take action in the event of a finding of violation. Article 3 of the directive provided that suspects or accused persons had the right to meet in private and communicate with the lawyer representing them, including prior to questioning by the police or by another law enforcement or judicial authority; under Article 9, Member States should ensure that any waiver was given voluntarily and unequivocally. Although the Court of Justice of the European Union was responsible for interpreting the provisions of that directive, the third party considered that the Court could have regard to it as a pointer to the essential obligations on EU Member States ( which were therefore also binding on many Council of Europe member States ). 61. Having outlined the Court ’ s case-law since the Salduz judgment, the third party invited the Court to carefully assess the issue of restrictions on the right of access to a lawyer, “ waivers ” of that right and the failure of domestic courts to assess the negative effects of such restrictions, even where the suspect had not confessed to any offence. 3. The Court ’ s assessment a) The applicable principles 62. The Court reiterates that although the primary purpose of Article 6, as far as criminal proceedings are concerned, is to ensure a fair trial before a “ tribunal ” competent to determine “ any criminal charge ”, it may also be relevant before a case is sent for trial if and in so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with its provisions ( see Salduz, cited above, § 50, and Panovits v. Cyprus, no. 4268/04, § 64, 11 December 2008). Furthermore, the right set out in paragraph 3 (c) of Article 6 is one element, amongst others, of the concept of a fair trial in criminal proceedings contained in paragraph 1 ( see Imbrioscia v. Switzerland, 24 November 1993, § 37, Series A no. 275, and Brennan v. the United Kingdom, no. 39846/98, § 45, ECHR 2001 ‑ X). 63. The right of everyone charged with a criminal offence to be effectively defended by a lawyer is one of the fundamental features of a fair trial ( see Krombach v. France, no. 29731/96, § 89, ECHR 2001 ‑ II). In order for the right to a fair trial to remain sufficiently “practical and effective”, Article 6 § 1 requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of the case that there are compelling reasons to restrict that right. The Court specifies that even in such cases, denial of access to a lawyer must not unduly prejudice the rights of the accused under Article 6, and that 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 ( see Salduz, cited above, § 55). The Court found a violation of Article 6 §§ 1 and 3 ( c) notwithstanding that the applicant had subsequently benefited from legal assistance and adversarial proceedings, having noted, in particular, that the restriction in question on the right to a lawyer had been based on the systematic application of legal provisions ( see Salduz, cited above, §§ 56 and 61). 64. The fairness of criminal proceedings under Article 6 of the Convention requires that, as a rule, a suspect should be granted access to legal assistance from the moment he is taken into police custody or otherwise remanded in custody, whether interrogations take place or not. The Court emphasises in that respect that the fairness of proceedings requires that an accused be able to obtain the whole range of services specifically associated with legal assistance, pointing out that discussion of the case, organisation of the defence, collection of evidence favourable to the accused, preparation for questioning, support of an accused in distress and checking of the conditions of detention were fundamental aspects of the defence which the lawyer must be able to exercise freely ( see Dayanan, cited above, §§ 31-33). Moreover, an accused often finds himself in a particularly vulnerable position at the investigation 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 is, among other things, to help to ensure respect of the right of an accused not to incriminate himself ( see Pavlenko v. Russia, no. 42371/02, § 101, 1 April 2010 ). 65. The Court has had occasion to reiterate that, first of all, a person “charged with a criminal offence” within the meaning of Article 6 of the Convention is entitled to receive legal assistance from the time he or she is taken into police custody or otherwise remanded in custody and, as the case may be, during questioning by police or by an investigating judge; secondly, while a restriction of this right may in certain circumstances be justified and be compatible with the requirements of that Article, any such restriction that is imposed by a systemic rule of domestic law is inconsistent with the right to a fair trial ( see Simons v. Belgium ( dec. ), no. 71407/10, § 31, 28 August 2012, and Navone and Others v. Monaco, nos. 62880/11, 62892/11 and 62899/11, § 80, 24 October 2013 ). 66. 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, and Ananyev v. Russia, no. 20292/04, § 38, 30 July 2009). 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 Salduz, cited above, § 59, and Yoldaş, cited above, § 51). b) Application of the principles to the present case i. Lack of assistance by a lawyer during the police questioning 67. The minutes of the police hearing of 17 December 2009 mentioned that the applicant had claimed his right to the assistance of a lawyer but that he had consented to an interrogation without such assistance, after having “ received the requisite explanations regarding the procedure to be followed in cases such as his ” ( see paragraph 12 above ). 68. Before the Court, the parties disagreed on the issue of the legal provisions applicable to the present case. The applicant contested the Government ’ s affirmation that Articles 39 and 52 of the Code of Criminal Procedure applied ipso facto where the individual had been arrested under a European arrest warrant. 69. The Court notes that at the time of the impugned interrogation on 17 December 2009, Luxembourg legislation provided for the right to legal assistance in cases of police interrogation of an individual detained under in flagrante proceedings ( Article 39 [ 7 ] of the Code of Criminal Procedure ) and in that of a person remanded in custody for facts other than those with which he had been charged ( Article 52 [ 3 ] of the Code of Criminal Procedure ) ... It transpires from the 15 June 2011 letter sent by the State Prosecutor that at the material time the right to the assistance of a lawyer had not applied to a police interrogation in the context of a preliminary investigation, on letters rogatory from a Luxembourg investigating judge, of a person detained pursuant to a European arrest warrant issued by a Luxembourg court ( see paragraph 33 above ). The Law of 17 March 2004 on the European Arrest Warrant and surrender procedures between Member States of the European Union provides for the assistance of a lawyer during police interrogations solely in the framework of the enforcement in Luxembourg of a European arrest warrant issued by a foreign authority ... However, it must be borne in mind that the applicant ’ s questioning by the police had taken place following his arrest in the United Kingdom on the basis of a European arrest warrant issued by a Luxembourg investigating judge. It is therefore incontrovertible that at the material time legal assistance during police questioning had been explicitly provided for in law under certain circumstances, but implicitly ruled out under circumstances such as those prevailing in the present case. That is why the assistance had been automatically ruled out in this way under the relevant legal provisions ( see, mutatis mutandis, Navone and Others v. Monaco, cited above, § 81). 70. The Court notes that the situation has since changed, under the 20 June 2011 “ Luxembourg Police Memorandum No. 49/2011 ” ( see paragraphs 32 and 33 above ); it also notes that a bill has been tabled geared to adding to the Code of Criminal Procedure a new right to legal assistance in any situation in which an individual deprived of his liberty is questioned. However, for his interrogation of 17 December 2009 the applicant was obviously ineligible for the facilities provided for in the memorandum in question. 71. Consequently, the Court is forced to note that under the legislation in force at the material time, the applicant was automatically deprived of the assistance of counsel, for the purposes of Article 6, during the police questioning of 17 December 2009. Under those conditions, the issue of any waiver of the right to the assistance of a lawyer becomes devoid of purpose ( see, mutatis mutandis, Navone and others v. Monaco, cited above, § 83). 72. The applicant made detailed statements during the impugned police hearing. Although he denied all the charges against him and made no incriminating statements, the Court nevertheless emphasises that the investigation stage of criminal proceedings is of crucial importance as the evidence obtained at this stage determines the framework in which the offence charged will be considered ( see Mehmet Şerif Öner v. Turkey, no. 50356/08, § 21, 13 September 2011). In the instant case, having read the applicant ’ s oral evidence gathered by the police and the investigating judge and during the hearings, the court mentioned that the applicant had constantly changed his version of events. Moreover, the Court of Appeal had expressly referred to the statements made by the applicant during the police interrogation in its finding that he had not always been consistent in his statements. That being the case, the Court cannot accept the Government ’ s argument that the statements made by the applicant during the phase in issue had had no influence on the final decision. 73. To the applicant ’ s complaint before the Court of Appeal that he had been questioned by the police without the assistance of a lawyer, that court replied that he had agreed to give oral evidence in the absence of a lawyer. What is more, by confining itself to that finding the Court of Appeal had failed to analyse the need at least to exclude the statements recorded during the impugned phase of the proceedings; on the contrary, it even took account of those statements, albeit in conjunction with a substantial amount of other evidence, in the reasoning underpinning its conviction of the applicant. The Court of Cassation subsequently dismissed the applicant ’ s appeal on points of law on the ground that the Court of Appeal had found that there had been no violation of his defence rights since he had recorded his agreement to giving evidence in the absence of a lawyer. The Court takes the view that in so doing decision the judgment of the Court of Appeal, as subsequently upheld by the Court of Cassation, had failed to consider the situation complained of and had therefore failed to provide redress for the consequences of the failure to provide the applicant with legal assistance during the police hearing. In so far as the Government invited the Court to adopt a flexible approach based on an overall interpretation of the situation, the Court considers that they cannot use the judgments in the cases of John Murray ( cited above ) and Rupa v. Romania no. 2 ( cited above ) as authority. In John Murray, which preceded Salduz, the Court noted that the applicant had remained silent from the beginning of the police interrogation until the end of his trial, and found no violation of his right to remain silent; however, the Court did find a violation of Article 6 as regards the refusal to grant the applicant access to a solicitor for his first forty-eight hours in police custody. As regards Rupa, the complaints were of a different nature; the applicant in question had complained that the prosecutor had denied him the assistance of the lawyer of his choice and that the officially appointed lawyer had failed to provide adequate assistance. 74. The Court takes note of the fact that the situation in question had been clarified in the wake of the Principal State Prosecutor ’ s circular of 13 May 2011, given that a Police Memorandum of 20 June 2011 laid down that the case-law of the Court should be complied with, failing which any procedures initiated would be nullified ( see paragraphs 31 to 33 above ). However, that was not the case at the material time. 75. Accordingly, the Court finds a violation of Article 6 § 3 ( c) of the Convention in conjunction with Article 6 § 1 on the grounds that the applicant did not benefit from the assistance of a defence lawyer during his police hearing and that the courts failed to provide redress for the consequences of such lack of assistance. ii. Alleged lack of effective assistance by a lawyer during the first interrogation by the investigating judge 76. The day after his questioning by the police without the assistance of a lawyer, the applicant was interrogated by the investigating judge from 9. 02 a.m. to 10. 53 a.m., in the presence of a lawyer who had been officially appointed that morning. During the interrogation the applicant made detailed statements and repeated those which he had made to the police. The Court reiterates that in their formal conviction the trial judges mentioned the different statements and took them into account in their reasoning, stating that the applicant had constantly changed his “ version of events ” ( see paragraph 72 above ). 77. First and foremost, the Court must reiterate that the applicant ’ s complaint about the lack of effective assistance by his lawyer at the first interrogation concerns the protection of the rights of the defence under Article 6 of the Convention. The applicant therefore cannot usefully rely on the case of Emilian-George Igna v. Romania (no. 21249/05, 26 November 2013), which concerns a different type of issue, namely the lawfulness of detention under Article 5 § 4 of the Convention. 78. In order to analyse the applicant ’ s complaints concerning the first interrogation by the investigating judge, the Court considers that it must differentiate between the issue of the lawyer ’ s access to the case file and that of communication between the lawyer and his client. α. Lack of access to the case file 79. Pursuant to Article 85 of the Code of Criminal Procedure, the Luxembourg authorities postpone access to the criminal case file until after the first interrogation ( see paragraph 30 above ). The Court reiterates that restrictions on access to the case file at the stages of instituting criminal proceedings, inquiry and investigation may be justified by, among other things, the necessity to preserve the secrecy of the data possessed by the authorities and to protect the rights of the other persons ( see, mutatis mutandis, Oleksiy Mykhaylovych Zakharkin v. Ukraine, no. 1727/04, § 72, 2 4 June 2010). In the instant case, given the justifications set out in domestic case -law, the Court considers it reasonable that the domestic authorities justify the lack of access to the case file with reasons of protecting the interests of justice. In addition, before charges are pressed, the person interrogated is at liberty to organise his defence ( including the right to remain silent, to consult the case file after the first interrogation by the investigating judge, and to choose his defence strategy throughout the criminal proceedings ). A proper balance is thus ensured by the guarantee on access to the case file, from the end of the first interrogation, before the investigating authorities and throughout the substantive proceedings. 80. The Court takes the view that it is not its task to decide whether the applicant can derive from the recently proposed legislation ( see paragraph 52 in fine ) or from Directive 2012/13/ EU ( see paragraph 37 above ) a right for the defence lawyer to have access to the case file before the first interrogation by the investigating judge. As regards the bill in question, it is not incumbent on the Court to express an opinion on a proposal which is still before the Luxembourg parliament. As regards the Directive, the Court merely notes that the first paragraph of Article 7 of the text concerns the lawfulness of arrest and detention, which is covered by Article 5 of the Convention. The issue at stake in the present case is respect for the defence rights of the person “ charged with a criminal offence ” within the meaning of Article 6 of the Convention. In that connection, paragraph 3 of Article 7 of the Directive provides that access to the materials referred to in paragraph 2 must be “granted in due time to allow the effective exercise of the rights of the defence and at the latest upon submission of the merits of the accusation”. 81. The Court considers that Article 6 of the Convention cannot be interpreted as guaranteeing unlimited access to the criminal case file before the first interrogation by the investigating judge where the domestic authorities have sufficient reasons relating to the protection of the interests of justice not to impede the effectiveness of the investigations. 82. In the Court ’ s view, this finding cannot be rebutted by the judgment in the case of Sapan v. Turkey ( cited above ), as relied upon by the applicant. In that case the applicant ’ s complaint concerned the lack of any legal assistance for the applicant during his interrogations by the police and by the prosecutor with the Istanbul. Although the judgement does mention the fact that the applicant ’ s lawyer had been refused access to the investigation file by the Istanbul State Security Court, in finding a violation of Article 6 the three- judge committee had drawn exclusively on the criteria established in case-law considered as well- established, that is to say the failure to provide the applicant with any legal assistance, which had been the result of systematic application of the relevant legal provisions ( see Salduz, cited above ). 83. Having regard to the foregoing observations, the Court holds that the lawyer ’ s assistance during the interrogation on 18 December 2009 was not ineffective owing to the lack of access to the case file before that interrogation. 84. Therefore, there was no violation of Article 6 of the Convention under this head. β. Alleged lack of communication between the applicant and his lawyer 85. The Court notes that the parties ’ submissions diverge on the matter of the applicant ’ s ability to communicate with his lawyer before the 18 December 2009 interrogation. The applicant submitted that under the very terms of Article 84 of the Code of Criminal Procedure no communication was possible between himself and his lawyer before the first interrogation by the investigating judge. The Government explained that the lack of regulations on this matter left unfettered scope for the parties, and that the practice was that clients could communicate with their lawyers at any time, upon request. 86. The Court notes the importance of consultations between the lawyer and his client upstream of the first interrogation by the investigating judge. This is an opportunity for holding crucial exchanges, if only for the lawyer to remind his client of his relevant rights. That is especially true where, as in the present case, the applicant was questioned by the police the day before without counsel and a lawyer has just been officially appointed on the morning of the interrogation by the investigating judge. 87. The lawyer must be able to provide effective and practical assistance, not just abstract backing via his presence, during the first interrogation by the investigating judge. Accordingly, the consultation between the lawyer and his client upstream of the interrogation must be unequivocally enshrined in legislation. However, that is not the case in Luxembourg. Article 84 of the Code of Criminal Procedure does not provide that accused persons can consult their lawyers before the first interrogation by the investigating judge, as in fact recommended by Article 3 of Directive 2013/48/ EU ... On the contrary, the actual wording of the provision in question gives the impression that no communication is possible before the first interrogation. Such a legislative position might suggest to accused persons that there is no point in demanding discussions with their lawyer before the first interrogation. 88. The Court is unconvinced by the Government ’ s argument that communication between the client and his lawyer is possible under current practice. It should be remembered that the Court must be able to satisfy itself that the right secured is practical and effective, and not theoretical and illusory. Where there are no clear regulations on the matter, it is impossible to ascertain whether a practice is well- established and has been respected. 89. It cannot be overlooked that in the present case the minutes of the interrogation on 18 December 2009 state that a lawyer was officially appointed on the morning of the interrogation by the investigating judge, but then fail to mention any lapse of time during which the applicant was able to talk to that lawyer. Consequently, the Court cannot satisfy itself, solely on the basis of the Government ’ s affirmations and the evidence available to it, that the applicant was able to speak to his lawyer before the impugned interrogation and that he therefore obtained effective assistance from him. 90. Nor can the Court disregard the fact that the CPT report of 28 October 2010 confirms the unreliability of the practice mentioned by the Government. That report, which was prepared in the wake of visits conducted the same year as the facts germane to the present case, states that virtually all the prisoners and detainees encountered by the CPT delegation had pointed out that their first contact with a lawyer had occurred when they had appeared before the investigating judge and that they had not been able to speak in private with the lawyer until after that appearance before the judge. 91. The foregoing considerations are sufficient to enable the Court to find that there was a violation of Article 6 § 3 ( c) of the Convention in conjunction with Article 6 § 1 under this head. ... | The Court found in particular that, as regards the police interview, the statutory provisions then in force implicitly excluded the assistance of a lawyer for persons arrested under a European Arrest Warrant issued by Luxembourg. Since the domestic court had not remedied the consequences of that lack of assistance, by excluding from its reasoning the statements taken during that interview, the Court held that there had been a violation of Article 6 § 3 (c) taken together with Article 6 § 1 of the Convention on account of the failure to provide legal assistance during the police interview. As further regards the applicant’s first appearance before the investigating judge, the Court found that the lack of access to the file prior to that hearing had not constituted a violation of Article 6 § 3 (c) taken together with Article 6 § 1, as Article 6 of the Convention did not guarantee unlimited access to the file prior to such an appearance. However, the Court held that the possibility for the applicant to consult his lawyer before that hearing was not sufficiently guaranteed by Luxembourg law. In so far as the applicant had not been able to converse with his lawyer before the hearing in question, the Court thus found a violation of Article 6 § 3 (c) taken together with Article 6 § 1 of the Convention. |
711 | Right to collective bargaining | RELEVANT LEGAL FRAMEWORK THE DOMESTIC LEGAL FRAMEWORKProvision of the Basic Law Provision of the Basic Law Provision of the Basic Law 25. Article 9 of the Basic Law, on freedom of association, in so far as relevant, provides: “(3) The right to form associations to safeguard and improve working and economic conditions shall be guaranteed to every individual and to every profession. Agreements which restrict or seek to impair this right shall be null and void; measures directed to this end shall be unlawful. ...” Provisions of the Collective Agreements Act and the Uniformity of Collective Agreements Act 26. Under section 3 § 1 of the Collective Agreements Act collective agreements bind the employer and the members of the trade union having concluded the agreement. 27. Section 4a of the Collective Agreements Act, on conflicting collective agreements ( Tarifkollision ), as amended by the Uniformity of Collective Agreements Act and in force at the relevant time, provides: “(1) In order to maintain the protection function, the distribution function, the pacification function and the ordering function of legal provisions of a collective agreement, conflicting collective agreements shall be prevented in a business unit. (2) In accordance with section 3, an employer may be bound by several collective agreements with different trade unions. To the extent that the scopes of application of collective agreements of different trade unions which are not identical in content overlap in one business unit (conflicting collective agreements), only the legal provisions of the collective agreement shall apply which was concluded by the trade union that organised the majority of employees in that business unit at the time when the last conflicting collective agreement was concluded. ... (4) A trade union may request the employer or confederation of employers that it may subsequently adopt the legal provisions of the collective agreement which is conflicting with the agreement it had concluded ( Nachzeichnung ). ... (5) If an employer or confederation of employers starts negotiations with a trade union on the conclusion of a collective agreement, the employer or confederation of employers is obliged to give notice thereof in due time and in an adequate manner. A different trade union, whose tasks under their statute comprises the conclusion of collective agreements ..., is entitled to present its expectations and demands to the employer or confederation of employers orally.” 28. According to the Explanatory Memorandum to the draft Uniformity of Collective Agreements Act submitted by the Government to the Federal Parliament, the objective of the Act was to ensure the proper functioning of the system of collective bargaining by preventing conflicting collective agreements. The Act is aimed at safeguarding the ordering, distribution, protection and pacification functions of collective agreements. Those functions would be endangered if conflicting collective agreements applied which did not reflect the value of the work performed by different employees, but the key or other position of the respective employees in the business unit. The Act should notably prevent trade unions representing employees in key positions from negotiating collective agreements to the detriment of other employees, thus preserving solidarity between employees. It should further facilitate the conclusion of an overall compromise within a business unit, which was important, in particular, in times of economic crisis for saving jobs. The provisions of the Act are supposed to encourage trade unions to avoid concluding conflicting collective agreements for employees in similar positions. Different ways of avoiding conflicting collective agreements proposed by several experts were not considered equally suitable to achieve this aim (see German Federal Parliament, Parliamentary publication no. 18/4062 of 20 February 2015, pp. 8 et seq. ). 29. By an Act which entered into force on 1 January 2019 (Federal Law Gazette [ Bundesgesetzblatt ] I, p. 2651), the legislator amended section 4a § 2 of the Collective Agreements Act in order to comply with the Federal Constitutional Court’s judgment. Section 4a § 2, as amended, provides, in addition, that the legal provisions of a collective agreement concluded by a minority union remain applicable if, when concluding the collective agreement of the majority union, the interests of groups of employees also covered by the agreement of the minority union were not seriously and effectively considered. Provisions of the Labour Courts Act 30. Section 2a § 1 no. 6 of the Labour Courts Act, as inserted by the Uniformity of Collective Agreements Act, provides that the labour courts have sole jurisdiction to determine which of several conflicting collective agreements was applicable in a business unit under section 4a § 2, second sentence, of the Collective Agreements Act. The newly inserted section 99 of the Labour Courts Act lays down the procedure in that regard. It provides, in particular, that proceedings may be instituted at the request of one of the parties to a conflicting collective agreement. The final decision as to which collective agreement is applicable in a business unit concerned has erga omnes effect. INTERNATIONAL LAW AND PRACTICE 31. International bodies made, inter alia, the following findings in respect of national legal systems requiring trade unions to meet certain representativeness criteria for collective bargaining and concluding collective agreements. 32. The International Labour Organization (ILO) Committee on Freedom of Association (CFA), having regard, inter alia, to the Right to Organise and Collective Bargaining Convention (No. 98), 1949, ratified by Germany, summarised its practice in this regard as follows: “1350. The Collective Bargaining Recommendation, 1981 (No. 163), enumerates various means of promoting collective bargaining, including the recognition of representative employers’ and workers’ organizations (Paragraph 3(a)). ... 1351. Systems of collective bargaining with exclusive rights for the most representative trade union and those where it is possible for a number of collective agreements to be concluded by a number of trade unions within a company are both compatible with the principles of freedom of association. ... 1360. Systems based on a sole bargaining agent (the most representative) and those which include all organizations or the most representative organizations in accordance with clear pre-established criteria for the determination of the organizations entitled to bargain are both compatible with Convention No. 98. ... 1387. The Committee has recalled the position of the Committee of Experts on the Application of Conventions and Recommendations that, where the law of a country draws a distinction between the most representative trade union and other trade unions, such a system should not have the effect of preventing minority unions from functioning and at least having the right to make representations on behalf of their members and to represent them in cases of individual grievances” (see ILO CFA, Compilation of decisions (2018), with further references) 33. The European Committee of Social Rights (ECSR) found in respect of the right to bargain collectively under Article 6 of the European Social Charter (ratified by Germany at the relevant time in its original 1961 version): “It is open to States Parties to require trade unions to meet an obligation of representativeness subject to certain conditions. With respect to Article 6 § 2 such a requirement must not excessively limit the possibility of trade unions to participate effectively in collective bargaining. In order to be in conformity with Article 6 § 2, the criteria of representativeness should be prescribed by law, should be objective and reasonable and subject to judicial review which offers appropriate protection against arbitrary refusals. ...” (see Digest of the Case Law of the ECSR of December 2018, p. 100, with further references) THE LAW JOINDER OF THE APPLICATIONS 34. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment (Rule 42 § 1 of the Rules of Court). ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION 35. The applicants complained that the impugned provisions of the Uniformity of Collective Agreements Act violated their right to form and join trade unions, including a right to collective bargaining, as provided in Article 11 of the Convention, which reads as follows: “ 1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. 2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.” Admissibility 36. The parties agreed, in particular, that the applicants could all claim to be victims, for the purposes of Article 34 of the Convention, of a breach of Article 11 directly by the impugned provisions of the Uniformity of Collective Agreements Act. 37. The Court notes that in order to be able to claim to be a victim of a Convention violation, for the purposes of Article 34, a person or group of individuals must be directly affected by the impugned measure (see for a comprehensive recapitulation of the relevant case-law in this regard Yusufeli İlçesini Güzelleştirme Yaşatma Kültür Varlıklarını Koruma Derneği v. Turkey (dec.), no. 37857/14, §§ 37-39, 7 December 2021). It is, however, open to a person to contend that a law violates his or her rights, in the absence of an individual measure of implementation, and therefore to claim to be a “victim” within the meaning of Article 34, if he or she is required to either modify his or her conduct or risk being prosecuted, or if he or she is a member of a class of people who risk being directly affected by the legislation (see, inter alia, Burden v. the United Kingdom [GC], no. 13378/05, §§ 33-34, ECHR 2008, and Michaud v. France, no. 12323/11, § 51, ECHR 2012). 38. The Court observes that with the entry into force of the impugned legislation and the judgment of the Federal Constitutional Court of 11 July 2017, the applicant trade unions, in accordance with the aim of that legislation, needed to adapt their collective bargaining policy and possibly their organisational structure to avoid the inapplicability of future collective agreements negotiated by them (see also the Federal Constitutional Court’s findings at paragraphs 15 and 17 above, and paragraphs 46-47 and 46 below). The applicant unions, like the applicant trade union members in whose interest the unions pursued and adapted their collective bargaining strategies, are accordingly members of a group who risk being directly affected by the impugned legislation. All applicants can thus claim to be victims of the alleged Convention violation. 39. The Court further notes that this complaint is neither manifestly ill ‑ founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. MeritsThe parties’ submissions The parties’ submissions The parties’ submissions (a) The applicants 40. The applicants complained that the impugned provisions of the Uniformity of Collective Agreements Act had severely interfered with their right under Article 11 of the Convention to freedom of association. As a consequence of the Act, the applicant trade unions had no longer been able to conclude applicable collective agreements in companies in which a different trade union had more members and employers no longer wished to negotiate with them. 41. The interference was not prescribed by law for the purposes of Article 11 § 2. The impugned provisions of the Uniformity of Collective Agreements Act were not sufficiently precise and foreseeable in their application. It was very difficult in practice to know which part of a company was the relevant “business unit”, which staff members were to be counted as “employees” and thus which of the trade unions in a business unit had the majority of members. The first applicant further argued that the impugned provisions did not pursue a legitimate aim as they were aimed at encouraging trade unions to cooperate, whereas it was for the latter to decide how to negotiate collective agreements. 42. Finally, the interference with an essential element of the applicants’ freedom of association, namely the right to bargain collectively, by the impugned provisions was not proportionate to the aim of an egalitarian collective bargaining policy. The interference was not adequately compensated for by the minority union’s right to be heard and to adopt the collective agreement of the majority union as it deprived trade unions of their independence and attractivity for members. It would also be difficult to mobilise members to strike if it was certain from the outset that what was obtained as a result and reflected in a collective agreement would not ultimately be applicable. The applicants stressed, in particular, that the impugned Act, while also affecting trade unions such as the first applicant which did not represent employees in key positions, thus disadvantaged and threatened the existence of smaller trade unions of professional groups. 43. The applicants further submitted that prior to the entry into force of the Uniformity of Collective Agreements Act, it had sometimes happened in practice that different collective agreements for the same group of employees had been applicable in one business unit; it had not been shown that this had caused any particular difficulties. The true reason for the adoption of the impugned Act was to create a monopoly structure on the part of the employees. While it was true that section 4a § 2, second sentence, of the Collective Agreements Act never had to be applied in practice, this was also due to the fact that the collective bargaining parties had agreed to exclude the applicability of the provision in some sectors for specific collective agreements of minority trade unions, which therefore remained applicable (regarding this possibility, cf. paragraph 20 above). (b) The Government 44. The Government submitted that the interference by the impugned legislation with the applicants’ right to freedom of association, which included a right to bargain collectively with an employer, had been justified for the purposes of Article 11 § 2. It had been prescribed by law, namely the Uniformity of Collective Agreements Act as interpreted restrictively by the Federal Constitutional Court. In particular, the term “business unit” in the new section 4a § 2 of the Collective Agreements Act had long been used in labour law and been interpreted in a foreseeable manner by the labour courts. 45. The interference pursued the legitimate aim of protecting the rights and freedoms of other trade unions and their members. It served to protect the German system of collective bargaining as such by preventing minority trade unions representing employees with key positions from securing a disproportionate share of a company’s profits. They submitted that since the year 2000, several such unions, representing inter alia pilots, flight attendants, salaried physicians and train drivers, had engaged in separate collective bargaining and intensive industrial action aimed at obtaining special advantages for their members. 46. The interference was further necessary in a democratic society for the protection of the rights of others. The legislature enjoyed a wide margin of appreciation in this regard as the Act concerned Germany’s social and economic policy and only affected an accessory aspect of trade union freedom. It concerned all trade unions, large and small, in the same manner, since the question of which trade union had the majority of members in a particular business unit was usually uncertain. The Act therefore only induced all trade unions alike to coordinate their collective bargaining efforts, while retaining the right to bargain collectively and to take industrial action if necessary. In addition, procedural rights had been created to protect minority trade unions. 47. The Government submitted that this system worked in practice; in particular, section 4a § 2, second sentence, of the Collective Agreements Act had never yet been applied. None of the smaller unions had lost a considerable number of members or had become less relevant in collective bargaining as a result of the impugned Act. In essence, the legislation had reintroduced the principle of uniformity of collective agreements which had been applied by the Federal Labour Court for decades prior to the reversal of its case-law (cf. paragraph 9 above). (c) The third-party interveners 48. Both the German Trade Union Confederation ( Deutscher Gewerkschaftsbund (DGB) ) and the Confederation of German Employers’ Associations ( Bundesvereinigung der Deutschen Arbeitgeberverbände (BDA) ) considered the Uniformity of Collective Agreements Act to be compatible with Article 11 of the Convention also in the light of international labour law, which permitted privileging representative trade unions (see the ILO CFA’s practice cited in paragraph 32 above). They further stressed that according to the comparative law material which they had obtained and submitted, most Contracting Parties to the Convention had rules which prevented the application of several conflicting collective agreements. They confirmed that minority trade unions had still been able to conclude applicable collective agreements in practice, either by agreements to exclude the application of section 4a § 2 of the Collective Agreements Act (see also paragraphs 20 and 43 above) or by precluding conflicts ex ante in the different collective agreements negotiated. 49. The German Railway stock corporation ( Deutsche Bahn AG ) and the Employers’ and Trade Association of Mobility and Transport Providers ( Arbeitgeber- und Wirtschaftsverband der Mobilitäts- und Verkehrsdienstleister e.V. (AGV MOVE) ) explained that the Uniformity of Collective Agreements Act, having incited the third applicant and a competing trade union to a minimum of cooperation, had allowed the German Railway stock corporation to enter into almost identical collective agreements with both trade unions and had thus facilitated uninterrupted provision of transport services and equal treatment of the different groups of employees. 50. Both the latter third-party intervener and the Aviation Employers’ Association ( Arbeitgeberverband Luftverkehr (AGVL) ) further submitted that the impugned Act provided an appropriate and practicable solution in case of conflicting collective agreements and thus legal certainty, inter alia as regards working time models. This was essential for running a railway or aviation business necessitating complex coordination of different staff members’ work. The Court’s assessment (a) Whether there was an interference 51. The Court observes that the impugned provisions of the Uniformity of Collective Agreements Act, by which, in particular, section 4a § 2, second sentence, was inserted into the Collective Agreements Act, may lead to a collective agreement concluded by a trade union with an employer becoming fully inapplicable if a conflicting collective agreement – which contains at least partly differing provisions on working conditions and overlaps with the minority union’s agreement as regards the place, time, business unit and employees’ position covered (see paragraphs 9 and 20 above) – has been concluded by another trade union having more members in the business unit of the company concerned. Moreover, as a result of the impugned provisions of the Uniformity of Collective Agreements Act, by which sections 2a § 1 no. 6 and 99 were inserted into the Labour Courts Act (see paragraph 30 above), trade unions may be obliged to disclose the number of their members in a business unit in the labour court proceedings to determine the majority union, and thus their strength in case of industrial action. These provisions interfere with the applicants’ right to form and join trade unions under Article 11 § 1 of the Convention, which includes a right, held by both trade unions and their members, to bargain collectively with the employer (compare, inter alia, Demir and Baykara v. Turkey [GC], no. 34503/97, § 154, ECHR 2008). (b) Whether the interference was justified (i) Prescribed by law 52. The Court considers that the legal basis for the interference with the applicants’ right to form and join trade unions, the Uniformity of Collective Agreements Act read in conjunction with the provisions amended by that Act (in particular section 4a of the Collective Agreements Act and sections 2a § 1 no. 6 and 99 of the Labour Courts Act), was formulated with sufficient precision to enable the persons concerned to regulate their conduct and thus foreseeable in its application. In particular, the fact that the interpretation of the term “business unit” in section 4a of the Collective Agreements Act and the criteria for including persons as “employees” for the purposes of that provision were questions of judicial practice does not alter that finding, in particular as these terms are common in the labour courts’ practice. The impugned interference was thus “prescribed by law” for the purposes of Article 11 § 2. (ii) Pursuit of a legitimate aim 53. The Court observes that the legislator adopting the Uniformity of Collective Agreements Act was notably faced with conflicting interests of different groups of employees organised in competing trade unions, and also with the employers’ interests. It considers that, as a matter of principle, granting an unfettered liberty notably to trade unions to conclude a multitude of collective agreements in the same business unit could run counter to the legitimate interest of keeping peace and solidarity within that economic unit. It is therefore legitimate for a legislator to try to strike a fair balance between the aim of ensuring peace and solidarity in a business unit and the unlimited liberty of competing trade unions to negotiate separate collective agreements in the same economic unit. The Court has further recognised that State measures to ensure a coherent and balanced staff policy, taking due account of the occupational interests of all staff and not only of those of certain categories of staff, pursue a legitimate aim (see National Union of Belgian Police v. Belgium, 27 October 1975, § 48, Series A no. 19, in the context of Article 11 read in conjunction with Article 14). It notes that the impugned provisions of the Uniformity of Collective Agreements Act are intended to ensure the proper and fair functioning of the system of collective bargaining by preventing trade unions representing employees in key positions from negotiating collective agreements separately to the detriment of other employees, and also to facilitate an overall compromise (see paragraphs 19 and 28 above). They thus serve to protect the rights of others, namely, in particular, the rights of employees not holding key positions and of trade unions defending their interests, but also the rights of the employer, and thus pursue a legitimate aim for the purposes of Article 11 § 2. (iii) Necessity of the interference in a democratic society (α) Relevant principles 54. As for the proportionality of interferences with trade-union activity, the Court reiterates that in cases concerning the freedom to form and join trade unions, the breadth of the States’ margin of appreciation will depend on the nature and extent of the restriction on the trade-union right in issue, the object pursued by the contested restriction, and the competing rights and interests of other individuals in society who are liable to suffer as a result of the unrestricted exercise of that right (see National Union of Rail, Maritime and Transport Workers v. the United Kingdom, no. 31045/10, § 86, ECHR 2014). The degree of common ground between the member States of the Council of Europe in relation to the issue arising in the case may also be relevant, as may any international consensus reflected in the specialised international instruments (see Demir and Baykara, cited above, § 85; National Union of Rail, Maritime and Transport Workers, cited above, § 86; and Association of Academics v. Iceland (dec.), no. 2451/16, § 25, 15 May 2018). 55. The sensitiveness of the social and political issues involved in achieving a proper balance between the respective interests of labour and management, and the high degree of divergence between the domestic systems in this field, are elements indicative of a wide margin of appreciation of the Contracting States as to how trade union freedom and protection of the occupational interests of union members may be secured (see Sindicatul “Păstorul cel Bun” v. Romania [GC], no. 2330/09, § 133, ECHR 2013 (extracts); National Union of Rail, Maritime and Transport Workers, cited above, §§ 86 and 91; and Norwegian Confederation of Trade Unions (LO) and Norwegian Transport Workers’ Union (NTF) v. Norway, no. 45487/17, §§ 97 and 114, 10 June 2021). In respect of the social and economic strategy of the respondent State, to which the ability of trade unions to protect the interests of their members relates, the Court has usually allowed a wide margin of appreciation since, by virtue of their direct knowledge of their society and its needs, the national authorities, and in particular the democratically elected Parliaments, are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds and which legislative measures are best suited for the conditions in their country in order to implement the chosen social, economic or industrial policy ( National Union of Rail, Maritime and Transport Workers, cited above, § 89). Therefore, such interference is, by its nature, more likely to be proportionate as far as its consequences for the exercise of trade-union freedom are concerned ( National Union of Rail, Maritime and Transport Workers, cited above, § 87). 56. The substance of the right to freedom of association under Article 11 is marked by two guiding principles: firstly, the Court takes into consideration the totality of the measures taken by the State concerned in order to secure trade union freedom, subject to its margin of appreciation; secondly, the Court does not accept restrictions that affect the essential elements of trade union freedom, without which that freedom would become devoid of substance (see Demir and Baykara v. Turkey [GC], no. 34503/97, § 144, ECHR 2008; Association of Academics, cited above, § 23; and Norwegian Confederation of Trade Unions (LO) and Norwegian Transport Workers’ Union (NTF), cited above, § 94). 57. The essential elements of the right to freedom of association have been established, in a non-exhaustive list subject to evolution, as: the right to form and join a trade union; the prohibition of closed-shop agreements; the right for a trade union to seek to persuade the employer to hear what it has to say on behalf of its members, and, in principle, the right to bargain collectively with the employer (see Demir and Baykara, cited above, §§ 145 and 154, and Sindicatul “Păstorul cel Bun”, cited above, § 135). 58. The essence of a voluntary system of collective bargaining is that it must be possible for a trade union which is not recognised by an employer to take steps including, if necessary, organising industrial action, with a view to persuading the employer to enter into collective bargaining with it on issues which the union believes are important for its members’ interests (see Wilson, National Union of Journalists and Others v. the United Kingdom, nos. 30668/96 and 2 others, § 46, ECHR 2002 ‑ V, and Norwegian Confederation of Trade Unions (LO) and Norwegian Transport Workers’ Union (NTF), cited above, § 95). 59. Whereas the right to take industrial action has not been considered as an essential element of trade union freedom, strike action is clearly protected by Article 11 as part of trade union activity (see Association of Academics, cited above, §§ 24-27, with further references, and National Union of Rail, Maritime and Transport Workers, cited above, § 84). Yet, the right to collective bargaining has not been interpreted as including a “right” to a collective agreement (see National Union of Rail, Maritime and Transport Workers, cited above, § 85; and Norwegian Confederation of Trade Unions (LO) and Norwegian Transport Workers’ Union (NTF), cited above, § 93). 60. States remain free to organise their collective bargaining system so as, if appropriate, to grant special status to representative trade unions (see Demir and Baykara, cited above, § 154, and Tek Gıda İş Sendikası v. Turkey, no. 35009/05, § 33, 4 April 2017). The Court has thus considered a general policy of restricting the number of organisations which are (formally) consulted in the collective bargaining process and with which collective agreements are to be concluded to larger unions or unions which are more representative of all staff of an entity as compatible with trade union freedom where the other unions were heard in a different manner (compare National Union of Belgian Police, cited above, §§ 39-41 and 48; Swedish Engine Drivers’ Union v. Sweden, 6 February 1976, §§ 8-9, 40-42 and 46, Series A no. 20; and Schettini and Others v. Italy (dec.), no. 29529/95, 9 November 2000). The Court further confirmed in this context that such a policy did not infringe union members’ right to join or remain member of a smaller or less representative trade union, which they fully retained, despite the fact that the disadvantages at which these unions were placed could lead to a decline in their membership (see National Union of Belgian Police, cited above, § 41, and Swedish Engine Drivers’ Union, cited above, § 42). (β) Application of these principles to the present case 61. When assessing the proportionality of the impugned provisions, the Contracting States must be afforded a margin of appreciation. The breadth of the margin depends inter alia on the nature and extent of the restriction on trade union freedom and in particular the right to collective bargaining by these provisions in the entire regulatory context (compare paragraph 54 above). 62. The Court observes in this regard that the essential restriction brought about by the Uniformity of Collective Agreements Act is that a conflicting collective agreement (which overlaps with another trade union’s agreement as regards the place, time, business unit and employees’ position covered and contains at least partly differing provisions on working conditions, see paragraphs 9 and 20 above) concluded by a trade union which did not have the highest number of members employed within the business unit of the company concerned becomes inapplicable (see the new section 4a § 2, second sentence, of the Collective Agreements Act, at paragraph 27 above). 63. The Court notes that the trade unions concerned do not lose the right as such to bargain collectively – and to take industrial action in that context if necessary – and to conclude collective agreements. Section 4a of the Collective Agreements Act intends to encourage trade unions to coordinate their collective bargaining negotiations. In the event of a failure of coordination, it provides for different legal effects regarding the conflicting collective agreements concluded with the employer (in that only the collective agreement concluded by the largest trade union within the business unit remains applicable). 64. The Court further observes that the extent of the restriction on trade union freedom and in particular the right to collective bargaining by the said provision is limited in several respects. In particular, in accordance with section 4a § 4 of the Collective Agreements Act as interpreted by the Federal Constitutional Court (see paragraphs 27 and 21 above), the trade unions whose collective agreements became inapplicable are entitled to adopt the legal provisions of the collective agreement of the majority union in their entirety. These unions are not, therefore, left without any collective agreement against their will. 65. Moreover, under section 4a § 5 of the Collective Agreements Act (see paragraph 27 above), minority trade unions retain the right to effectively present claims and make representations to the employer for the protection of the interests of their members, to negotiate with the employer and to conclude collective agreements. The Federal Constitutional Court, in its interpretation of that provision, even further strengthened the minority trade unions’ right to be heard. It found that minority trade unions’ conflicting collective agreements would not become inapplicable where the statutory duty to hear these unions had not been observed (see paragraph 21 above). Furthermore, a conflicting collective agreement could only become inapplicable under section 4a § 2 of the Collective Agreements Act if the majority trade union had seriously and effectively taken into account the interests of the employees of particular professions or sectors whose collective agreement became inapplicable (see paragraphs 14 and 22 above). 66. In addition, longer-term benefits such as contributions to a pension in a minority union’s agreement could only be rendered inapplicable if there was a comparable benefit in the majority union’s agreement (see paragraph 20 above). Moreover, according to the Federal Constitutional Court, in the procedure to determine which of several trade unions have the majority of members in that unit and whose collective agreement is thus applicable under section 99 of the Labour Courts Act, the disclosure of the number of trade union members in a business unit should, if possible, be avoided (see paragraphs 30 and 21 above). 67. In view of the scope of the restriction on collective bargaining, the interference with the applicants’ right to collective bargaining cannot be regarded as affecting an essential element of trade-union freedom, without which that freedom would become devoid of substance. As shown above (see paragraph 59), the right to collective bargaining does not include a “right” to a collective agreement. What is essential is that trade unions may make representations to and are heard by the employer, which the impugned provisions of the Collective Agreements Act effectively guarantee in practice. Furthermore, it was expressly clarified by the Federal Constitutional Court (see paragraph 17 above) that minority trade unions’ right to strike as an important instrument to protect the occupational interests of their members was not curtailed by the impugned provisions. 68. The Court would observe that in its case-law, it considered more far ‑ reaching restrictions on the right to collective bargaining, particularly the complete exclusion of a right of minority or less representative unions to conclude collective agreements at all, as compatible with Article 11 (see paragraph 60 above). 69. In this respect, the Court recalls that the breadth of the States’ margin of appreciation depends also on the objective pursued by the contested restriction and the competing rights of others who are liable to suffer as a result of the unrestricted exercise of the right to bargain collectively (see paragraph 54 above). The Court refers to its above finding that the impugned provisions are aimed, in particular, at ensuring a fair functioning of the system of collective bargaining by preventing trade unions representing employees in key positions from negotiating collective agreements separately to the detriment of other employees, and also at facilitating an overall compromise. These objectives, which protect the rights of the said other employees and of trade unions defending their interests, but also the rights of the employer, must be considered to be very weighty in that they are aimed at strengthening the entire system of collective bargaining and thus also trade union freedom as such. 70. The Court observes that it has repeatedly noted a high degree of divergence between the domestic systems in the sphere of protection of trade union rights (see paragraph 55 above). It further emerges from its case-law that several other States, like the respondent State, have systems restricting in one way or another the conclusion of (applicable) collective agreements to larger unions or unions which are more representative of all the staff of an entity (see the cases cited in paragraph 60 above). The comparative law material submitted by the third party interveners (see paragraph 48 above) and not contested by the parties equally confirmed that most Contracting Parties to the Convention had rules which prevented the application of several conflicting collective agreements. Legal systems permitting only “representative” trade unions to conclude collective agreements – which are more restrictive than the impugned provisions at issue in the present case – were further considered compatible with the pertinent ILO instruments – notably where minority unions, as in the present case, maintain the right to make representations on behalf of their members – and the European Social Charter (see paragraphs 31 to 33 above). 71. Having regard to the above elements – in particular, the limited extent of the restriction on the right to collective bargaining particularly of smaller trade unions by the impugned provisions in the entire regulatory context and the weighty aim to secure the proper functioning of the system of collective bargaining as such in the interests of both employees and employers – the Court concludes that the respondent State had a margin of appreciation as regards the restriction on trade union freedom at issue. 72. That margin of appreciation is to be afforded all the more as the legislature had to make sensitive policy choices in order achieve a proper balance between the respective interests of labour – including the competing interests of different trade unions – and also of management. The parties have not contested the quality of the legislative process leading to the adoption of the Uniformity of Collective Agreements Act (see also paragraph 28 above). 73. The Court would further add that in the light of its case-law (see paragraph 60 above) the fact that the impugned provisions may lead to a loss of attractivity and thus a decline in the membership of smaller trade unions often representing specific professional groups does not as such infringe union members’ right to join or remain member of such trade unions, which they fully retain. 74. Having regard to the foregoing, the Court concludes that the facts of the present case do not disclose an unjustified interference with the applicants’ right to collective bargaining, the essential elements of which they are able to exercise, in representing their members and in negotiating with the employers on behalf of their members. Since the respondent State enjoys a margin of appreciation in this area, which encompasses the impugned provisions, there is no basis to consider these provisions as entailing a disproportionate restriction on the applicants’ rights under Article 11. 75. There has accordingly been no violation of Article 11 of the Convention. | The Court held that there had been no violation of Article 11 of the Convention, finding that there had been no disproportionate restriction on the applicants’ rights in the present case. The Court reiterated in particular that the right to collective bargaining as guaranteed under Article 11 of the Convention did not include a “right” to a collective agreement. What was essential was that trade unions could make representations to and be heard by employers. In this case, the Court found that the restrictions brought on by the legislation had concerned smaller trade unions, which nonetheless retained other rights, including the right to collective bargaining and to strike. Moreover, the legislation was intended to ensure the proper functioning of the collective bargaining system in the interests of both employees and employers. |
299 | Prevention of terrorism | PROCEEDINGS BEFORE THE COMMISSION 26. In their application lodged with the Commission on 11 June 1971, the applicants alleged that Article 10 para. 2 of the Basic Law and the G 10 - to the extent that these provisions, firstly, empower the authorities to monitor their correspondence and telephone communications without obliging the authorities to inform them subsequently of the measures taken against them and, secondly, exclude the possibility of challenging such measures before the ordinary courts - violate Articles 6, 8 and 13 (art. 6, art. 8, art. 13) of the Convention. On 18 December 1974, the Commission declared the application admissible. It found, as regards Article 25 (art. 25) of the Convention: "... only the victim of an alleged violation may bring an application. The applicants, however, state that they may be or may have been subject to secret surveillance, for example, in course of legal representation of clients who were themselves subject to surveillance, and that persons having been the subject of secret surveillance are not always subsequently informed of the measures taken against them. In view of this particularity of the case the applicants have to be considered as victims for the purpose of Article 25 (art. 25)." 27. Having been invited by the Government to consider the application inadmissible under Article 29 in conjunction with Articles 25 and 27 para. 2 (art. 29+25, art. 29+27-2) of the Convention, the Commission declared in its report of 9 March 1977 that it saw no reason to accede to this request. In this connection, the report stated: "The Commission is ... still of the opinion ... that the applicants must be considered as if they were victims. Some of the applicants are barristers and it is theoretically excluded that they are in fact subject to secret surveillance in consequence of contacts they may have with clients who are suspected of anti-constitutional activities. As it is the particularity of this case that persons subject to secret supervision by the authorities are not always subsequently informed of such measures taken against them, it is impossible for the applicants to show that any of their rights have been interfered with. In these circumstances the applicants must be considered to be entitled to lodge an application even if they cannot show that they are victims." The Commission then expressed the opinion: - by eleven votes to one with two abstentions, that the present case did not disclose any breach of Article 6 para. 1 (art. 6-1) of the Convention insofar as the applicants relied on the notion "civil rights"; - unanimously, that the present case did not disclose any breach of Article 6 para. 1 (art. 6-1) in so far as the applicants relied on the notion "criminal charge"; - by twelve votes in favour with one abstention, that the present case did not disclose any breach of Article 8 (art. 8) or of Article 13 (art. 13). The report contains various separate opinions. 28. In her memorial of 28 November 1977, the Agent of the Government submitted in conclusion: "I ... invite the Court to find that the application was inadmissible; in the alternative, to find that the Federal Republic of Germany has not violated the Convention." She repeated these concluding submissions at the hearing on 10 March 1978. 29. For their part, the Delegates of the Commission made the following concluding submissions to the Court: "May it please the Court to say and judge 1. Whether, having regard to the circumstances of the case, the applicants could claim to be ‘ victims ’ of a violation of their rights guaranteed by the Convention by reason of the system of surveillance established by the so-called G 10 Act; 2. And, if so, whether the applicants are actually victims of a violation of their rights set forth in the Convention by the very existence of that Act, considering that it gives no guarantee to persons whose communications have been subjected to secret surveillance that they will be notified subsequently of the measures taken concerning them." AS TO THE LAW I. ON ARTICLE 25 PARA. 1 (art. 25-1) 30. Both in their written memorial and in their oral submissions, the Government formally invited the Court to find that the application lodged with the Commission was "inadmissible". They argued that the applicants could not be considered as "victims" within the meaning of Article 25 para. 1 (art. 25-1) which provides as follows: "The Commission may receive petitions addressed to the Secretary-General of the Council of Europe from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in this Convention, provided that the High Contracting Party against which the complaint has been lodged has declared that it recognises the competence of the Commission to receive such petitions ..." In the Government ’ s submission, the applicants were not claiming to have established an individual violation, even potential, of their own rights but rather, on the basis of the purely hypothetical possibility of being subject to surveillance, were seeking a general and abstract review of the contested legislation in the light of the Convention. 31. According to the reply given by the Delegates at the hearing, the Commission agreed with the Government that the Court is competent to determine whether the applicants can claim to be "victims" within the meaning of Article 25 para. 1 (art. 25-1). However, the Commission disagreed with the Government in so far as the latter ’ s proposal might imply the suggestion that the Commission ’ s decision on the admissibility of the application should as such be reviewed by the Court. The Delegates considered that the Government were requiring too rigid a standard for the notion of a "victim" of an alleged breach of Article 8 (art. 8) of the Convention. They submitted that, in order to be able to claim to be the victim of an interference with the exercise of the right conferred on him by Article 8 para. 1 (art. 8-1), it should suffice that a person is in a situation where there is a reasonable risk of his being subjected to secret surveillance. In the Delegates ’ view, the applicants are not only to be considered as constructive victims, as the Commission had in effect stated: they can claim to be direct victims of a violation of their rights under Article 8 (art. 8) in that under the terms of the contested legislation everyone in the Federal Republic of Germany who could be presumed to have contact with people involved in subversive activity really runs the risk of being subject to secret surveillance, the sole existence of this risk being in itself a restriction on free communication. The Principal Delegate, for another reason, regarded the application as rightly declared admissible. In his view, the alleged violation related to a single right which, although not expressly enounced in the Convention, was to be derived by necessary implication; this implied right was the right of every individual to be informed within a reasonable time of any secret measure taken in his respect by the public authorities and amounting to an interference with his rights and freedoms under the Convention. 32. The Court confirms the well-established principle of its own case-law that, once a case is duly referred to it, the Court is endowed with full jurisdiction and may take cognisance of all questions of fact or of law arising in the course of the proceedings, including questions which may have been raised before the Commission under the head of admissibility. This conclusion is in no way invalidated by the powers conferred on the Commission under Article 27 (art. 27) of the Convention as regards the admissibility of applications. The task which this Article assigns to the Commission is one of sifting; the Commission either does or does not accept the applications. Its decision to reject applications which it considers to be inadmissible are without appeal as are, moreover, also those by which applications are accepted; they are taken in complete independence (see the De Wilde, Ooms and Versyp judgment of 18 June 1971, Series A no. 12, pp. 29 and 30, paras. 47-54; see also the judgment of 9 February 1967 on the preliminary objection in the "Belgian Linguistic" case, Series A no. 5, p. 18; the Handyside judgment of 7 December 1976, Series A no. 24, p. 20, para. 41; and the judgment of 18 January 1978 in the case of Ireland v. the United Kingdom, Series A no. 25, p. 63, para. 157). The present case concerns, inter alia, the interpretation of the notion of "victim" within the meaning of Article 25 (art. 25) of the Convention, this being a matter already raised before the Commission. The Court therefore affirms its jurisdiction to examine the issue arising under that Article (art. 25). 33. While Article 24 (art. 24) allows each Contracting State to refer to the Commission "any alleged breach" of the Convention by another Contracting State, a person, non-governmental organisation or group of individuals must, in order to be able to lodge a petition in pursuance of Article 25 (art. 25), claim "to be the victim of a violation ... of the rights set forth in (the) Convention". Thus, in contrast to the position under Article 24 (art. 24) - where, subject to the other conditions laid down, the general interest attaching to the observance of the Convention renders admissible an inter-State application - Article 25 (art. 25) requires that an individual applicant should claim to have been actually affected by the violation he alleges (see the judgment of 18 January 1978 in the case of Ireland v. the United Kingdom, Series A no. 25, pp. 90-91, paras. 239 and 240). Article 25 (art. 25) does not institute for individuals a kind of actio popularis for the interpretation of the Convention; it does not permit individuals to complain against a law in abstracto simply because they feel that it contravenes the Convention. In principle, it does not suffice for an individual applicant to claim that the mere existence of a law violates his rights under the Convention; it is necessary that the law should have been applied to his detriment. Nevertheless, as both the Government and the Commission pointed out, a law may by itself violate the rights of an individual if the individual is directly affected by the law in the absence of any specific measure of implementation. In this connection, the Court recalls that, in two previous cases originating in applications lodged in pursuance of Article 25 (art. 25), it has itself been faced with legislation having such an effect: in the "Belgian Linguistic" case and the case of Kjeldsen, Busk Madsen and Pedersen, the Court was called on to examine the compatibility with the Convention and Protocol No. 1 of certain legislation relating to education (see the judgment of 23 July 1968, Series A no. 6, and the judgment of 7 December 1976, Series A no. 23, especially pp. 22-23, para. 48). 34. Article 25 (art. 25), which governs the access by individuals to the Commission, is one of the keystones in the machinery for the enforcement of the rights and freedoms set forth in the Convention. This machinery involves, for an individual who considers himself to have been prejudiced by some action claimed to be in breach of the Convention, the possibility of bringing the alleged violation before the Commission provided the other admissibility requirements are satisfied. 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, in the sense of Article 25 (art. 25), of a violation of Article 8 (art. 8) of the Convention - Article 8 (art. 8) being the provision giving rise to the central issue in the present case. 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 (art. 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 (art. 8), or even to be deprived of the right granted by that Article (art. 8), 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. In this connection, it should be recalled that the Federal Constitutional Court in its judgment of 15 December 1970 (see paragraphs 11 and 12 above) adopted the following reasoning: "In order to be able to enter a constitutional application against an Act, the applicant must claim that the Act itself, and not merely an implementary measure, constitutes a direct and immediate violation of one of his fundamental rights ... These conditions are not fulfilled since, according to the applicants ’ own submissions, it is only by an act on the part of the executive that their fundamental rights would be violated. However, because they are not apprised of the interference with their rights, the persons concerned cannot challenge any implementary measure. In such cases, they must be entitled to make a constitutional application against the Act itself, as in cases where a constitutional application against an implementary measure is impossible for other reasons ..." This reasoning, in spite of the possible differences existing between appeals to the Federal Constitutional Court under German law and the enforcement machinery set up by the Convention, is valid, mutatis mutandis, for applications lodged under Article 25 (art. 25). 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 (art. 25), since otherwise Article 8 (art. 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 (see paragraph 11 above). 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 (art. 8). At the hearing, the Agent of the Government informed the Court that at no time had surveillance measures under the G 10 been ordered or implemented in respect of the applicants (see paragraph 13 above). The Court takes note of the Agent ’ s statement. However, in the light of its conclusions as to the effect of the contested legislation the Court does not consider that this retrospective clarification bears on the appreciation of the applicants ’ status as "victims". 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. The question whether the applicants were actually the victims of any violation of the Convention involves determining whether the contested legislation is in itself compatible with the Convention ’ s provisions. Accordingly, the Court does not find it necessary to decide whether the Convention implies a right to be informed in the circumstances mentioned by the Principal Delegate. II. ON THE ALLEGED VIOLATION OF ARTICLE 8 (art. 8) 39. The applicants claim that the contested legislation, notably because the person concerned is not informed of the surveillance measures and cannot have recourse to the courts when such measures are terminated, violates Article 8 (art. 8) of the Convention which provides as follows: "1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others." 40. According to Article 10 para. 2 of the Basic Law, restrictions upon the secrecy of the mail, post and telecommunications may be ordered but only pursuant to a statute. Article 1 para. 1 of the G 10 allows certain authorities to open and inspect mail and post, to read telegraphic messages and to monitor and record telephone conversations (see paragraph 17 above). The Court ’ s examination under Article 8 (art. 8) is thus limited to the authorisation of such measures alone and does not extend, for instance, to the secret surveillance effect in pursuance of the Code of Criminal Procedure (see paragraph 25 above). 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 (art. 8-1). Although telephone conversations are not expressly mentioned in paragraph 1 of Article 8 (art. 8-1), the Court considers, as did the Commission, that such conversations are covered by the notions of "private life" and "correspondence" referred to by this provision. 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 (art. 8-1). 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 menance 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. The Court does not exclude that the contested legislation, and therefore the measures permitted thereunder, could also involve an interference with the exercise of a person ’ s right to respect for his home. However, the Court does not deem it necessary in the present proceedings to decide this point. 42. The cardinal issue arising under Article 8 (art. 8) in the present case is whether the interference so found is justified by the terms of paragraph 2 of the Article (art. 8-2). This paragraph, since it provides for an exception to a right guaranteed by the Convention, is to be narrowly interpreted. Powers of secret surveillance of citizens, characterising as they do the police state, are tolerable under the Convention only in so far as strictly necessary for safeguarding the democratic institutions. 43. In order for the "interference" established above not to infringe Article 8 (art. 8), it must, according to paragraph 2 (art. 8-2), first of all have been "in accordance with the law". This requirement is fulfilled in the present case since the "interference" results from Acts passed by Parliament, including one Act which was modified by the Federal Constitutional Court, in the exercise of its jurisdiction, by its judgment of 15 December 1970 (see paragraph 11 above). In addition, the Court observes that, as both the Government and the Commission pointed out, any individual measure of surveillance has to comply with the strict conditions and procedures laid down in the legislation itself. 44. It remains to be determined whether the other requisites laid down in paragraph 2 of Article 8 (art. 8-2) were also satisfied. According to the Government and the Commission, the interference permitted by the contested legislation was "necessary in a democratic society in the interests of national security" and/or "for the prevention of disorder or crime". Before the Court the Government submitted that the interference was additionally justified "in the interests of ... public safety" and "for the protection of the rights and freedoms of others". 45. The G 10 defines precisely, and thereby limits, the purposes for which the restrictive measures may be imposed. It provides that, in order to protect against "imminent dangers" threatening "the free democratic constitutional order", "the existence or security of the Federation or of a Land", "the security of the (allied) armed forces" stationed on the territory of the Republic or the security of "the troops of one of the Three Powers stationed in the Land of Berlin", the responsible authorities may authorise the restrictions referred to above (see paragraph 17). 46. The Court, sharing the view of the Government and the Commission, finds that the aim of the G 10 is indeed to safeguard national security and/or to prevent disorder or crime in pursuance of Article 8 para. 2 (art. 8-2). In these circumstances, the Court does not deem it necessary to decide whether the further purposes cited by the Government are also relevant. On the other hand, it has to be ascertained whether the means provided under the impugned legislation for the achievement of the above-mentioned aim remain in all respects within the bounds of what is necessary in a democratic society. 47. The applicants do not object to the German legislation in that it provides for wide-ranging powers of surveillance; they accept such powers, and the resultant encroachment upon the right guaranteed by Article 8 para. 1 (art. 8-1), as being a necessary means of defence for the protection of the democratic State. The applicants consider, however, that paragraph 2 of Article 8 (art. 8-2) lays down for such powers certain limits which have to be respected in a democratic society in order to ensure that the society does not slide imperceptibly towards totalitarianism. In their view, the contested legislation lacks adequate safeguards against possible abuse. 48. As the Delegates observed, the Court, in its appreciation of the scope of the protection offered by Article 8 (art. 8), cannot but take judicial notice of two important facts. The first consists of the technical advances made in the means of espionage and, correspondingly, of surveillance; the second is the development of terrorism in Europe in recent years. Democratic societies nowadays find themselves threatened by highly sophisticated forms of espionage and by terrorism, with the result that the State must be able, in order effectively to counter such threats, to undertake the secret surveillance of subversive elements operating within its jurisdiction. The Court has therefore to accept that the existence of some legislation granting powers of secret surveillance over the mail, post and telecommunications is, under exceptional conditions, necessary in a democratic society in the interests of national security and/or for the prevention of disorder or crime. 49. As concerns the fixing of the conditions under which the system of surveillance is to be operated, the Court points out that the domestic legislature enjoys a certain discretion. It is certainly not for the Court to substitute for the assessment of the national authorities any other assessment of what might be the best policy in this field (cf., mutatis mutandis, the De Wilde, Ooms and Versyp judgment of 18 June 1971, Series A no. 12, pp. 45-46, para. 93, and the Golder judgment of 21 February 1975, Series A no. 18, pp. 21-22, para. 45; cf., for Article 10 para. 2, the Engel and others judgment of 8 June 1976, Series A no. 22, pp. 41-42, para. 100, and the Handyside judgment of 7 December 1976, Series A no. 24, p. 22, para. 48). Nevertheless, the Court stresses that this does not mean that the Contracting States enjoy an unlimited discretion to subject persons within their jurisdiction to secret surveillance. The Court, being aware of the danger such a law poses of undermining or even destroying democracy on the ground of defending it, affirms that the Contracting States may not, in the name of the struggle against espionage and terrorism, adopt whatever measures they deem appropriate. 50. The Court must be satisfied that, whatever system of surveillance is adopted, there exist adequate and effective guarantees against abuse. This assessment has only a relative character: it depends on all the circumstances of the case, such as the nature, scope and duration of the possible measures, the grounds required for ordering such measures, the authorities competent to permit, carry out and supervise such measures, and the kind of remedy provided by the national law. The functioning of the system of secret surveillance established by the contested legislation, as modified by the Federal Constitutional Court ’ s judgment of 15 December 1970, must therefore be examined in the light of the Convention. 51. According to the G 10, a series of limitative conditions have to be satisfied before a surveillance measure can be imposed. Thus, the permissible restrictive measures are confined to cases in which there are factual indications for suspecting a person of planning, committing or having committed certain serious criminal acts; measures may only be ordered if the establishment of the facts by another method is without prospects of success or considerably more difficult; even then, the surveillance may cover only the specific suspect or his presumed "contact-persons" (see paragraph 17 above). Consequently, so-called exploratory or general surveillance is not permitted by the contested legislation. Surveillance may be ordered only on written application giving reasons, and such an application may be made only by the head, or his substitute, of certain services; the decision thereon must be taken by a Federal Minister empowered for the purpose by the Chancellor or, where appropriate, by the supreme Land authority (see paragraph 18 above). Accordingly, under the law there exists an administrative procedure designed to ensure that measures are not ordered haphazardly, irregularly or without due and proper consideration. In addition, although not required by the Act, the competent Minister in practice and except in urgent cases seeks the prior consent of the G 10 Commission (see paragraph 21 above). 52. The G 10 also lays down strict conditions with regard to the implementation of the surveillance measures and to the processing of the information thereby obtained. The measures in question remain in force for a maximum of three months and may be renewed only on fresh application; the measures must immediately be discontinued once the required conditions have ceased to exist or the measures themselves are no longer necessary; knowledge and documents thereby obtained may not be used for other ends, and documents must be destroyed as soon as they are no longer needed to achieve the required purpose (see paragraphs 18 and 20 above). As regards the implementation of the measures, an initial control is carried out by an official qualified for judicial office. This official examines the information obtained before transmitting to the competent services such information as may be used in accordance with the Act and is relevant to the purpose of the measure; he destroys any other intelligence that may have been gathered (see paragraph 20 above). 53. Under the G 10, while recourse to the courts in respect of the ordering and implementation of measures of surveillance is excluded, subsequent control or review is provided instead, in accordance with Article 10 para. 2 of the Basic Law, by two bodies appointed by the people ’ s elected representatives, namely, the Parliamentary Board and the G 10 Commission. The competent Minister must, at least once every six months, report on the application of the G 10 to the Parliamentary Board consisting of five Members of Parliament; the Members of Parliament are appointed by the Bundestag in proportion to the parliamentary groupings, the opposition being represented on the Board. In addition, the Minister is bound every month to provide the G 10 Commission with an account of the measures he has ordered. In practice, he seeks the prior consent of this Commission. The latter decides, ex officio or on application by a person believing himself to be under surveillance, on both the legality of and the necessity for the measures in question; if it declares any measures to be illegal or unnecessary, the Minister must terminate them immediately. The Commission members are appointed for the current term of the Bundestag by the Parliamentary Board after consultation with the Government; they are completely independent in the exercise of their functions and cannot be subject to instructions (see paragraph 21 above). 54. The Government maintain that Article 8 para. 2 (art. 8-2) does not require judicial control of secret surveillance and that the system of review established under the G 10 does effectively protect the rights of the individual. The applicants, on the other hand, qualify this system as a "form of political control", inadequate in comparison with the principle of judicial control which ought to prevail. It therefore has to be determined whether the procedures for supervising the ordering and implementation of the restrictive measures are such as to keep the "interference" resulting from the contested legislation to what is "necessary in a democratic society". 55. Review of surveillance may intervene at three stages: when the surveillance is first ordered, while it is being carried out, or after it has been terminated. As regards the first two stages, the very nature and logic of secret surveillance dictate that not only the surveillance itself but also the accompanying review should be effected without the individual ’ s knowledge. Consequently, since the individual will necessarily be prevented from seeking an effective remedy of his own accord or from taking a direct part in any review proceedings, it is essential that the procedures established should themselves provide adequate and equivalent guarantees safeguarding the individual ’ s rights. 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 para. 2 (art. 8-2), are not to be exceeded. One of the fundamental principles of a democratic society is the rule of law, which is expressly referred to in the Preamble to the Convention (see the Golder judgment of 21 February 1975, Series A no. 18, pp. 16-17, para. 34). The rule of law implies, inter alia, that an interference by the executive authorities with an individual ’ s rights should be subject to an effective control which should normally be assured by the judiciary, at least in the last resort, judicial control offering the best guarantees of independence, impartiality and a proper procedure. 56. Within the system of surveillance established by the G 10, judicial control was excluded, being replaced by an initial control effected by an official qualified for judicial office and by the control provided by the Parliamentary Board and the G 10 Commission. The Court considers 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. Nevertheless, having regard to the nature of the supervisory and other safeguards provided for by the G 10, the Court concludes that the exclusion of judicial control does not exceed the limits of what may be deemed necessary in a democratic society. The Parliamentary Board and the G 10 Commission are independent of the authorities carrying out the surveillance, and are vested with sufficient powers and competence to exercise an effective and continuous control. Furthermore, the democratic character is reflected in the balanced membership of the Parliamentary Board. The opposition is represented on this body and is therefore able to participate in the control of the measures ordered by the competent Minister who is responsible to the Bundestag. The two supervisory bodies may, in the circumstances of the case, be regarded as enjoying sufficient independence to give an objective ruling. The Court notes in addition that an individual believing himself to be under surveillance has the opportunity of complaining to the G 10 Commission and of having recourse to the Constitutional Court (see paragraph 23 above). However, as the Government conceded, these are remedies which can come into play only in exceptional circumstances. 57. As regards review a posteriori, it is necessary to determine whether judicial control, in particular with the individual ’ s participation, should continue to be excluded even after surveillance has ceased. Inextricably linked to this issue is the question of subsequent notification, since there is in principle little scope for recourse to the courts by the individual concerned unless he is advised of the measures taken without his knowledge and thus able retrospectively to challenge their legality. The applicants ’ main complaint under Article 8 (art. 8) is in fact that the person concerned is not always subsequently informed after the suspension of surveillance and is not therefore in a position to seek an effective remedy before the courts. Their preoccupation is the danger of measures being improperly implemented without the individual knowing or being able to verify the extent to which his rights have been interfered with. In their view, effective control by the courts after the suspension of surveillance measures is necessary in a democratic society to ensure against abuses; otherwise adequate control of secret surveillance is lacking and the right conferred on individuals under Article 8 (art. 8) is simply eliminated. In the Government ’ s view, the subsequent notification which must be given since the Federal Constitutional Court ’ s judgment (see paragraphs 11 and 19 above) corresponds to the requirements of Article 8 para. 2 (art. 8-2). In their submission, the whole efficacy of secret surveillance requires that, both before and after the event, information cannot be divulged if thereby the purpose of the investigation is, or would be retrospectively, thwarted. They stressed that recourse to the courts is no longer excluded after notification has been given, various legal remedies then becoming available to allow the individual, inter alia, to seek redress for any injury suffered (see paragraph 24 above). 58. In the opinion of the Court, it has to be ascertained whether it is even feasible in practice to require subsequent notification in all cases. The activity or danger against which a particular series of surveillance measures is directed may continue for years, even decades, after the suspension of those measures. Subsequent notification to each individual affected by a suspended measure might well jeopardise the long-term purpose that originally prompted the surveillance. Furthermore, as the Federal Constitutional Court rightly observed, such notification might serve to reveal the working methods and fields of operation of the intelligence services and even possibly to identify their agents. In the Court ’ s view, in so far as the "interference" resulting from the contested legislation is in principle justified under Article 8 para. 2 (art. 8-2) (see paragraph 48 above), the fact of not informing the individual once surveillance has ceased cannot itself be incompatible with this provision since it is this very fact which ensures the efficacy of the "interference". Moreover, it is to be recalled that, in pursuance of the Federal Constitutional Court ’ s judgment of 15 December 1970, the person concerned must be informed after the termination of the surveillance measures as soon as notification can be made without jeopardising the purpose of the restriction (see paragraphs 11 and 19 above). 59. Both in general and in relation to the question of subsequent notification, the applicants have constantly invoked the danger of abuse as a ground for their contention that the legislation they challenge does not fulfil the requirements of Article 8 para. 2 (art. 8-2) of the Convention. While the possibility of improper action by a dishonest, negligent or over-zealous official can never be completely ruled out whatever the system, the considerations that matter for the purposes of the Court ’ s present review are the likelihood of such action and the safeguards provided to protect against it. The Court has examined above (at paragraphs 51 to 58) the contested legislation in the light, inter alia, of these considerations. The Court notes in particular that the G 10 contains various provisions designed to reduce the effect of surveillance measures to an unavoidable minimum and to ensure that the surveillance is carried out in strict accordance with the law. In the absence of any evidence or indication that the actual practice followed is otherwise, the Court must assume that in the democratic society of the Federal Republic of Germany, the relevant authorities are properly applying the legislation in issue. The Court agrees with the Commission that some compromise between the requirements for defending democratic society and individual rights is inherent in the system of the Convention (see, mutatis mutandis, the judgment of 23 July 1968 in the "Belgian Linguistic" case, Series A no. 6, p. 32, para. 5). As the Preamble to the Convention states, "Fundamental Freedoms ... are best maintained on the one hand by an effective political democracy and on the other by a common understanding and observance of the Human Rights upon which (the Contracting States) depend". In the context of Article 8 (art. 8), this means that a balance must be sought between the exercise by the individual of the right guaranteed to him under paragraph 1 (art. 8-1) and the necessity under paragraph 2 (art. 8-2) to impose secret surveillance for the protection of the democratic society as a whole. 60. In the light of these considerations and of the detailed examination of the contested legislation, the Court concludes that the German legislature was justified to consider the interference resulting from that legislation with the exercise of the right guaranteed by Article 8 para. 1 (art. 8-1) as being necessary in a democratic society in the interests of national security and for the prevention of disorder or crime (Article 8 para. 2) (art. 8-2). Accordingly, the Court finds no breach of Article 8 (art. 8) of the Convention. III. ON THE ALLEGED VIOLATION OF ARTICLE 13 (art. 13) 61. The applicants also alleged a breach of Article 13 (art. 13) which provides: "Everyone whose rights and freedoms as set forth in this 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." 62. In the applicants ’ view, the Contracting States are obliged under Article 13 (art. 13) to provide an effective remedy for any alleged breach of the Convention; any other interpretation of this provision would render it meaningless. On the other hand, both the Government and the Commission consider that there is no basis for the application of Article 13 (art. 13) unless a right guaranteed by another Article of the Convention has been violated. 63. In the judgment of 6 February 1976 in the Swedish Engine Drivers ’ Union case, the Court, having found there to be in fact an effective remedy before a national authority, considered that it was not called upon to rule whether Article 13 (art. 13) was applicable only when a right guaranteed by another Article of the Convention has been violated (Series A no. 20, p. 18, para. 50; see also the De Wilde, Ooms and Versyp judgment of 18 June 1971, Series A no. 12, p. 46, para. 95). The Court proposes in the present case to decide on the applicability of Article 13 (art. 13), before examining, if necessary, the effectiveness of any relevant remedy under German law. 64. Article 13 (art. 13) states that any individual whose Convention rights and freedoms "are violated" is to have an effective remedy before a national authority even where "the violation has been committed" by persons in an official capacity. This provision, read literally, seems to say that a person is entitled to a national remedy only if a "violation" has occurred. However, a person cannot establish a "violation" before a national authority unless he is first able to lodge with such an authority a complaint to that effect. Consequently, as the minority in the Commission stated, it cannot be a prerequisite for the application of Article 13 (art. 13) that the Convention be in fact violated. In the Court ’ s view, Article 13 (art. 13) requires that where an individual considers himself to have been prejudiced by a measure allegedly in breach of the Convention, he should have a remedy before a national authority in order both to have his claim decided and, if appropriate, to obtain redress. Thus Article 13 (art. 13) must be interpreted as guaranteeing an "effective remedy before a national authority" to everyone who claims that his rights and freedoms under the Convention have been violated. 65. Accordingly, although the Court has found no breach of the right guaranteed to the applicants by Article 8 (art. 8), it falls to be ascertained whether German law afforded the applicants "an effective remedy before a national authority" within the meaning of Article 13 (art. 13). The applicants are not claiming that, in relation to particular surveillance measures actually applied to them, they lacked an effective remedy for alleged violation of their rights under the Convention. Rather, their complaint is directed against what they consider to be a shortcoming in the content of the contested legislation. While conceding that some forms of recourse exist in certain circumstances, they contend that the legislation itself, since it prevents them from even knowing whether their rights under the Convention have been interfered with by a concrete measure of surveillance, thereby denies them in principle an effective remedy under national law. Neither the Commission nor the Government agree with this contention. Consequently, although the applicants are challenging the terms of the legislation itself, the Court must examine, inter alia, what remedies are in fact available under German law and whether these remedies are effective in the circumstances. 66. The Court observes firstly that the applicants themselves enjoyed "an effective remedy", within the meaning of Article 13 (art. 13), in so far as they challenged before the Federal Constitutional Court the conformity of the relevant legislation with their right to respect for correspondence and with their right of access to the courts. Admittedly, that Court examined the applicants ’ complaints with reference not to the Convention but solely to the Basic Law. It should be noted, however, that the rights invoked by the applicants before the Constitutional Court are substantially the same as those whose violation was alleged before the Convention institutions (cf., mutatis mutandis, the judgment of 6 February 1976 in the Swedish Engine Drivers ’ Union case, Series A no. 20, p. 18, para. 50). A reading of the judgment of 15 December 1970 reveals that the Constitutional Court carefully examined the complaints brought before it in the light, inter alia, of the fundamental principles and democratic values embodied in the Basic Law. 67. As regards the issue whether there is "an effective remedy" in relation to the implementation of concrete surveillance measures under the G 10, the applicants argued in the first place that to qualify as a "national authority", within the meaning of Article 13 (art. 13), a body should at least be composed of members who are impartial and who enjoy the safeguards of judicial independence. The Government in reply submitted that, in contrast to Article 6 (art. 6), Article 13 (art. 13) does not require a legal remedy through the courts. In the Court ’ s opinion, the authority referred to in Article 13 (art. 13) may not necessarily in all instances be a judicial authority in the strict sense (see the Golder judgment of 21 February 1975, Series A no. 18, p. 16, para. 33). Nevertheless, the powers and procedural guarantees an authority possesses are relevant in determining whether the remedy before it is effective. 68. The concept of an "effective remedy", in the applicants ’ submission, presupposes that the person concerned should be placed in a position, by means of subsequent information, to defend himself against any inadmissible encroachment upon his guaranteed rights. Both the Government and the Commission were agreed that no unrestricted right to notification of surveillance measures can be deduced from Article 13 (art. 13) once the contested legislation, including the lack of information, has been held to be "necessary in a democratic society" for any one of the purposes mentioned in Article 8 (art. 8). The Court has already pointed out that it is the secrecy of the measures which renders it difficult, if not impossible, for the person concerned to seek any remedy of his own accord, particularly while surveillance is in progress (see paragraph 55 above). Secret surveillance and its implications are facts that the Court, albeit to its regret, has held to be necessary, in modern-day conditions in a democratic society, in the interests of national security and for the prevention of disorder or crime (see paragraph 48 above). The Convention is to be read as a whole and therefore, as the Commission indicated in its report, any interpretation of Article 13 (art. 13) must be in harmony with the logic of the Convention. The Court cannot interpret or apply Article 13 (art. 13) so as to arrive at a result tantamount in fact to nullifying its conclusion that the absence of notification to the person concerned is compatible with Article 8 (art. 8) in order to ensure the efficacy of surveillance measures (see paragraphs 58 to 60 above). Consequently, the Court, consistently with its conclusions concerning Article 8 (art. 8), holds that the lack of notification does not, in the circumstances of the case, entail a breach of Article 13 (art. 13). 69. For the purposes of the present proceedings, an "effective remedy" under Article 13 (art. 13) must mean a remedy that is as effective as can be having regard to the restricted scope for recourse inherent in any system of secret surveillance. It therefore remains to examine the various remedies available to the applicants under German law in order to see whether they are "effective" in this limited sense. 70. Although, according to the G 10, there can be no recourse to the courts in respect of the ordering and implementation of restrictive measures, certain other remedies are nevertheless open to the individual believing himself to be under surveillance: he has the opportunity of complaining to the G 10 Commission and to the Constitutional Court (see paragraphs 21 and 23 above). Admittedly, the effectiveness of these remedies is limited and they will in principle apply only in exceptional cases. However, in the circumstances of the present proceedings, it is hard to conceive of more effective remedies being possible. 71. On the other hand, in pursuance of the Federal Constitutional Court ’ s judgment of 15 December 1970, the competent authority is bound to inform the person concerned as soon as the surveillance measures are discontinued and notification can be made without jeopardising the purpose of the restriction (see paragraphs 11 and 19 above). From the moment of such notification, various legal remedies - before the courts - become available to the individual. According to the information supplied by the Government, the individual may: in an action for a declaration, have reviewed by an administrative court the lawfulness of the application to him of the G 10 and the conformity with the law of the surveillance measures ordered; bring an action for damages in a civil court if he has been prejudiced; bring an action for the destruction or, if appropriate, restitution of documents; finally, if none of these remedies is successful, apply to the Federal Constitutional Court for a ruling as to whether there has been a breach of the Basic Law (see paragraph 24 above). 72. Accordingly, the Court considers that, in the particular circumstances of this case, the aggregate of remedies provided for under German law satisfies the requirements of Article 13 (art. 13). IV. ON THE ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1) 73. The applicants finally alleged a breach of Article 6 para. 1 (art. 6-1) which provides: "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice." 74. According to the applicants, the surveillance measures which can be taken under the contested legislation amount both to an interference with a "civil right", and to the laying of a "criminal charge" within the meaning of Article 6 para. 1 (art. 6-1). In their submission, the legislation violates this Article (art. 6-1) in so far as it does not require notification to the person concerned in all cases after the termination of surveillance measures and excludes recourse to the courts to test the lawfulness of such measures. On the other hand, both the Government and the Commission concur in thinking that Article 6 para. 1 (art. 6-1) does not apply to the facts of the case under either the "civil" or the "criminal" head. 75. The Court has held that in the circumstances of the present case the G 10 does not contravene Article 8 (art. 8) in authorising a secret surveillance of mail, post and telecommunications subject to the conditions specified (see paragraphs 39 to 60 above). Since the Court has arrived at this conclusion, the question whether the decisions authorising such surveillance under the G 10 are covered by the judicial guarantee set forth in Article 6 (art. 6) – assuming this Article (art. 6) to be applicable - must be examined by drawing a distinction between two stages: that before, and that after, notification of the termination of surveillance. As long as it remains validly secret, the decision placing someone under surveillance is thereby incapable of judicial control on the initiative of the person concerned, within the meaning of Article 6 (art. 6); as a consequence, it of necessity escapes the requirements of that Article. The decision can come within the ambit of the said provision only after discontinuance of the surveillance. According to the information supplied by the Government, the individual concerned, once he has been notified of such discontinuance, has at his disposal several legal remedies against the possible infringements of his rights; these remedies would satisfy the requirements of Article 6 (art. 6) (see paragraphs 24 and 71 above). The Court accordingly concludes that, even if it is applicable, Article 6 (art. 6) has not been violated. | The Court held that there had been no violation of Article 8 (right to respect for private and family life) of the Convention. It found that, due to the threat of sophisticated forms of espionage and terrorism, some legislation granting powers of secret surveillance was, under exceptional conditions, “necessary in a democratic society” in the interests of national security and/or the prevention of disorder or crime. |
613 | Freedom of expression in the employment context | II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE A. Relevant domestic law and practice 1. Dismissal of an employee for having lodged a criminal complaint against the employer 31. Apart from specific legislation with respect to civil servants exposing suspected cases of corruption, German law does not contain general provisions governing the disclosure of deficiencies in enterprises or institutions, such as illegal conduct on the part of the employer, by an employee (“whistle-blowing”) and discussions on related draft legislation have for the time being not produced any results. (a) The relevant provisions of the German Civil Code and the Unfair Dismissal Act 32. In the absence of such specific legislation, an extraordinary dismissal of an employee for having lodged a criminal complaint against his or her employer may be based on Article 626 § 1 of the Civil Code, which provides that an employment relationship may be terminated by either party to the contract without complying with a notice period for a “compelling reason” ( wichtiger Grund ). Facts must be present on the basis of which the party giving notice cannot reasonably be expected to continue the employment until the end of the notice period or to the agreed end of that relationship, taking all circumstances of the individual case into account and weighing up the interests of both parties to the contract. 33. Section 1(1) of the Unfair Dismissal Act provides that termination of an employment relationship by the employer is unlawful if it is socially unjustified. Under section 1(2) of the Act, termination is socially unjustified unless it is, inter alia, based on grounds relating to the employee himself or to his conduct or continuation of the employment relationship would conflict with compelling requirements for the operation of the enterprise. (b) Case-law of the Federal Constitutional Court and Federal Labour Court 34. In a decision of 2 July 2001 (file No. 1 BvR 2049/00) the Federal Constitutional Court ruled in a case where, at the request of the public prosecutor, an employee had given evidence and handed over documents in preliminary criminal investigations that had been instituted against his employer by the public prosecutor ex officio. The Federal Constitutional Court held that, in accordance with the rule of law, the discharge of a citizen’s duty to give evidence in criminal investigations could not in itself entail disadvantages under civil law. The Federal Constitutional Court further pointed out in an obiter dictum that even in the event that an employee reported the employer to the public prosecution authorities on his or her own initiative, the rule of law required that such exercise of a citizen’s right would, as a rule, not justify dismissal without notice, unless the employee had knowingly or frivolously reported incorrect information. 35. In the light of the Federal Constitutional Court’s case-law, the Federal Labour Court, in a judgment of 3 July 2003 (file No. 2 AZR 235/02), further elaborated on the relation between an employee’s duty of loyalty towards the employer and the exercise of his or her constitutionally guaranteed rights. It reiterated that in reporting a criminal offence an employee had recourse to a means of implementing the law that was not only sanctioned by the legal order but also called for under the Constitution. An employee who exercised that right in good faith could not therefore incur a disadvantage in the event that the underlying allegations proved wrong or could not be clarified in the course of the ensuing proceedings. It held, however, that, taking into consideration the employee’s duty of loyalty, a [criminal] complaint lodged by an employee must not constitute a disproportionate reaction in response to the employer’s conduct. Indications of a disproportionate reaction by the complainant employee could be the justification of the complaint, the motivation of the person lodging the complaint or the failure to have previously drawn attention to the impugned deficiencies internally within the enterprise. In this context the employee’s motives for lodging the complaint were of particular significance. A complaint that was lodged solely to cause damage to the employer or to “wear him or her down” could constitute a disproportionate reaction depending on the charges underlying the complaint. As regards the possibility of previous internal clarification of the allegations, the court stated that it had to be determined in each individual case whether such an approach could reasonably have been expected of the employee. It would not be expected if the latter had obtained knowledge of an offence which, if he or she failed to report it, would render him or her liable to criminal prosecution or in the event of a serious criminal offence or an offence committed by the employer himself. In addition, previous internal clarification of the matter was not required if redress could not legitimately be expected. If the employer failed to remedy an unlawful practice even though the employee had previously drawn his attention to that practice, the latter was no longer bound by a duty of loyalty towards his employer. 2. The Code of Criminal Procedure 36. Article 170 of the Code of Criminal Procedure provides for the following outcomes of investigation proceedings: “(1) If the investigations offer sufficient reason for bringing public charges, the public prosecution office shall submit a bill of indictment to the competent court. (2) In all other cases the public prosecution office shall terminate the proceedings. The public prosecutor shall notify the accused accordingly if he was examined as such or a warrant of arrest was issued against him; the same shall apply if he has requested such notice or if there is a particular interest in notifying him.” B. Relevant international law and practice 37. In its Resolution 1729 (2010) on the protection of “whistle-blowers” the Parliamentary Assembly of the Council of Europe stressed the importance of “whistle-blowing” – concerned individuals sounding the alarm in order to stop wrongdoings that place fellow human beings at risk – as an opportunity to strengthen accountability, and bolster the fight against corruption and mismanagement, both in the public and private sectors. It invited all member States to review their legislation concerning the protection of “whistle-blowers”, keeping in mind the following guiding principles: 6.1.1. the definition of protected disclosures shall include all bona fide warnings against various types of unlawful acts, including all serious human rights violations which affect or threaten the life, health, liberty and any other legitimate interests of individuals as subjects of public administration or taxpayers, or as shareholders, employees or customers of private companies; 6.1.2. the legislation should therefore cover both public and private sector whistle-blowers ..., and 6.1.3. it should codify relevant issues in the following areas of law: 6.1.3.1. employment law – in particular protection against unfair dismissals and other forms of employment-related retaliation; ... 6.2.2. This legislation should protect anyone who, in good faith, makes use of existing internal whistle-blowing channels from any form of retaliation (unfair dismissal, harassment or any other punitive or discriminatory treatment). 6.2.3. Where internal channels either do not exist, have not functioned properly or could reasonably be expected not to function properly given the nature of the problem raised by the whistle-blower, external whistle-blowing, including through the media, should likewise be protected. 6.2.4. Any whistle-blower shall be considered as having acted in good faith provided he or she had reasonable grounds to believe that the information disclosed was true, even if it later turns out that this was not the case, and provided he or she did not pursue any unlawful or unethical objectives.” The above guidelines were also referred to in the Parliamentary Assembly’s related Recommendation 1916 (2010). 38. Article 24 of the Revised European Social Charter reads as follows: “With a view to ensuring the effective exercise of the right of workers to protection in cases of termination of employment, the Parties undertake to recognise: ... a) the right of all workers not to have their employment terminated without valid reasons for such termination connected with their capacity or conduct or based on the operational requirements of the undertaking, establishment or service; ... The Appendix to Article 24 specifies : “3. For the purpose of this article the following, in particular, shall not constitute valid reasons for termination of employment: ... c the filing of a complaint or the participation in proceedings against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities; ...” Article 24 of the Revised European Social Charter has been ratified by twenty-four of the Council of Europe’s member States. Germany has signed but not yet ratified the Revised European Social Charter. 39. Article 5 of the Termination of Employment Convention of the International Labour Organisation (ILO Convention No. 158 of 22 June 1982) stipulates: “The following, inter alia, shall not constitute valid reasons for termination: ... (c) the filing of a complaint or the participation in proceedings against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities; ...”. Germany has not ratified ILO Convention No. 158. 40. A number of other international instruments address the protection of whistle-blowers in specific contexts, in particular the fight against corruption, such as the Council of Europe’s Criminal Law Convention on Corruption and Civil Law Convention on Corruption or the United Nations Convention against Corruption. THE LAW I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 41. The applicant complained that her dismissal without notice on the ground that she had lodged a criminal complaint against her employer and the refusal of the domestic courts in the ensuing proceedings to order her reinstatement infringed her right to freedom of expression as provided in Article 10 of the Convention, which reads as follows: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” A. Admissibility 42. 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 43. The Court observes at the outset that it was not disputed between the parties that the criminal complaint lodged by the applicant had to be regarded as whistle-blowing on the alleged unlawful conduct of the employer, which fell within the ambit of Article 10 of the Convention. It was also common ground between the parties that the resulting dismissal of the applicant and the related decisions of the domestic courts amounted to an interference with the applicant’s right to freedom of expression. 44. The Court refers in this context to a number of cases involving freedom of expression of civil or public servants in which it has held that Article 10 applied to the workplace in general (see, for example, Kudeshkina v. Russia, no. 29492/05, § 85, 26 February 2009, and Vogt v. Germany, 26 September 1995, § 53, Series A no. 323). It has further found that Article 10 of the Convention also applies when the relations between employer and employee are governed, as in the case at hand, by private law and that the State has a positive obligation to protect the right to freedom of expression even in the sphere of relations between individuals (see Fuentes Bobo v. Spain, no. 39293/98, § 38, 29 February 2000). 45. The Court therefore considers that the applicant’s dismissal, as upheld by the German courts, on account of her criminal complaint against her employer constituted an interference with her right to freedom of expression, as guaranteed by Article 10 § 1 of the Convention. 46. Such interference will constitute a breach of Article 10 unless it is “prescribed by law”, pursues a legitimate aim under its paragraph 2 and is “necessary in a democratic society” for the achievement of such aim. 2. Whether the interference was “prescribed by law” and pursued a legitimate aim 47. The applicant, while conceding that termination of an employment relationship without notice under Article 626 § 1 of the Civil Code could pursue the legitimate aim of protecting the reputation or rights of others, namely, the business reputation and interests of Vivantes, argued that the said provision did not contain any criteria for a lawful dismissal in the event of whistle-blowing on the part of an employee. The related decisions of the Federal Constitutional Court of 2 July 2001 and the Federal Labour Court of 3 July 2003 (see “Relevant domestic law and practice” above) did not amount to comprehensive and established case-law in this regard. The conditions for dismissal without notice on the ground that an employee has filed a criminal complaint against his or her employer were not sufficiently foreseeable and the resulting interference with the applicant’s right to freedom of expression had thus not been “prescribed by law” within the meaning of Article 10 § 2. 48. The Court notes in this connection that Article 626 § 1 of the Civil Code allows the termination of an employment contract with immediate effect by either party if a “compelling reason” renders the continuation of the employment relationship unacceptable to the party giving notice. It further observes that, according to the decision of the domestic courts in the present case as well as the aforementioned leading decisions of the Federal Constitutional Court and the Federal Labour Code referred to by the parties, a criminal complaint against an employer may justify a dismissal under the said provision where it amounts to a “significant breach” of the employee’s duty of loyalty. While the domestic courts have to assess whether such a significant breach of an employee’s duty has occurred in the light of the circumstances of each particular case, the Court considers that it is nevertheless foreseeable for an employee that a criminal complaint against his or her employer may in principle constitute a compelling ground for dismissal without notice under the said provision. The Court reiterates in this context that domestic legislation cannot be expected in any case to provide for every eventuality and the mere fact that a legal provision is capable of more than one construction does not mean that it does not meet the requirement implied in the notion “prescribed by law” (see Vogt v. Germany, 26 September 1995, § 48, Series A no. 323). 49. The Court therefore shares the Government’s view that the interference with the applicant’s right to freedom of expression was “prescribed by law”. It further notes that there was no dispute between the parties that the interference pursued the legitimate aim of protecting the reputation and rights of others, namely, the business reputation and interests of Vivantes (see Steel and Morris v. the United Kingdom, no. 68416/01, § 94, ECHR 2005 ‑ II). 50. The Court must therefore examine whether the interference was “necessary in a democratic society”, in particular, whether there was a proportionate relationship between the interference and the aim pursued. 3. Whether the interference was necessary in a democratic society (a) The parties’ submissions (i) The Government 51. The Government argued that the interference with the applicant’s right to freedom of expression in the case at hand had been justified under paragraph 2 of Article 10 since her dismissal without notice had been a necessary and proportionate means to protect the reputation and rights of her employer. 52. In their assessment of the situation the domestic courts had, inter alia, taken into consideration that the applicant had not previously raised internally with her employer her allegation that the documentation in connection with the care provided had been falsified. Neither had she mentioned such a practice nor accused her employer of fraud either in her repeated notifications to the latter pointing out the shortcomings in the services rendered or in the letter sent by her counsel to the Vivantes management on 9 November 2004. The allegations of fraud had been made for the first time in her criminal complaint of 7 December 2004. 53. The domestic courts had further considered that the applicant had frivolously based her criminal complaint on facts that could not be demonstrated in the ensuing proceedings. Her complaint had lacked sufficiently concrete information to enable her allegations to be verified and the competent public prosecution authorities had therefore discontinued the preliminary investigations for lack of an initial suspicion ( Anfangsverdacht ). When the public prosecution authorities, following resumption of the preliminary proceedings at the applicant’s request, had questioned the latter as a witness, she had refused to further specify her allegations or to name additional witnesses. The preliminary investigations had thus been discontinued again. In the proceedings before the labour courts relating to her dismissal, the applicant had also failed to substantiate her allegations that staff had been asked to document services that had not actually been rendered. Owing to the blanket nature of the applicant’s allegations and her refusal to further substantiate her accusations, it had been impossible to assess their veracity and the domestic courts had thus not abused their power of discretion when calling into question the authenticity of the applicant’s allegations. 54. The Government argued, lastly, that when lodging the criminal complaint against her employer the applicant had not acted in good faith and in the public interest with a view to disclosing a criminal offence. Her motive for lodging the criminal complaint had rather been to denounce the alleged shortage of staff and put additional pressure on her employer by involving the public. The applicant had been aware that Vivantes was subject to inspections by the Berlin Inspectorate for Residential Homes as well as to checks by an independent supervisory body, the MDK, and that in view of those checks a criminal complaint about an alleged staff shortage and resulting deficiencies in care was unnecessary. In particular, she could have waited for the MDK to issue a report following its visit carried out on 18 November 2004 before lodging her criminal complaint. The motives behind her actions were also illustrated by the polemical way in which her criminal complaint had been phrased and the fact that following her dismissal she had disseminated flyers in which she complained of the alleged avarice of her employer. Furthermore, her lawyer’s letter of 9 November 2004 announcing to the Vivantes management that a criminal complaint and a “certainly unpleasant public discussion” could be avoided only if the employer took steps to remedy the staff shortages also showed that she intended to put pressure on her employer. 55. The Government concluded that the domestic courts had examined the circumstances of the instant case and, relying on the aforementioned arguments, had struck a fair balance between the public interest in being informed about shortcomings in the sensitive area of care for the elderly on the one hand, and the protection of the public’s trust in the provision of services in this area as well as the protection of the commercial interests and success of the operating service companies on the other, and had come to the conclusion that the latter prevailed in the present case. They further pointed out that the domestic courts had weighed the applicant’s right to freedom of expression against her duty of loyalty towards her employer, applying criteria that coincided with those established by the Court in the case of Guja ( Guja v. Moldova [GC], no. 14277/04, §§ 69-78, ECHR 2008 ‑ ...). The result of their assessment had thus fallen within the margin of appreciation enjoyed by the States in interfering with the right to freedom of expression. (ii) The applicant 56. The applicant contested the Government’s argument that her criminal complaint had been premature. She maintained that prior to lodging the criminal complaint against Vivantes she had made continuous efforts over a period of over two years to inform the relevant departments within the enterprise of the existing deficiencies. Since all her attempts to draw the management’s attention to the situation had been to no avail, she had been led to assume that further internal complaints would not constitute an effective means of obtaining an investigation of and remedy for the shortcomings in the care provided. For that reason she had considered the criminal complaint as a last resort, also with a view to avoiding potential criminal liability herself. This had also been the reason her counsel had written to the Vivantes management on 9 November 2004 informing them of her intention to lodge a criminal complaint. 57. The applicant further contended that her criminal complaint had not been frivolous or unfounded. In her repeated pleas to Vivantes she had disclosed all the circumstances of the case that had been the foundation of her subsequent criminal complaint, including the fact that staff had been asked to record services which had not actually been rendered in the manner documented. The deficiencies disclosed by her had also been the subject of criticism by the MDK, following its inspections in 2002 and 2003, when it had pointed out that staff shortages were at the origin of the inadequate care. It had been her lawyer who had assessed the facts from a legal point of view when formulating the criminal complaint and qualifying them as constituting the criminal offence of fraud – an assessment that she was not competent to call into question. She had further substantiated her complaint to the extent possible in the subsequent proceedings while being mindful of the risk of incriminating herself and of incurring retaliatory measures by Vivantes in the event that she disclosed further internal information about the enterprise. 58. The applicant submitted that her motive for filing the complaint had been the potential threat to the health of the particularly vulnerable patients as a result of the unsatisfactory working conditions in the nursing home; the question whether the accompanying documentation had been accurate had been of only secondary significance to her. In her opinion the criminal complaint had not been unnecessary in view of the supervision carried out by the MDK, as pointed out by the Government, and she contested the argument that the true purpose of her complaint had been to put undue pressure on her employer. She argued in this connection that previous complaints by the MDK about the conditions in the nursing home had not brought about any change in working conditions there and therefore, in her opinion, a subsequent visit by the MDK could not have been considered as an effective alternative to remedy the shortcomings. In any event she would neither have had a right to be involved in such an inspection nor to be informed about its outcome. 59. The applicant further pointed out that her dismissal without notice had been the severest sanction possible and could only be justified in the absence of less severe penalties. With regard to Vivantes, on the other hand, no concrete damage as a consequence of her criminal complaint had been established. 60. The applicant concluded that her dismissal without notice had not been necessary for the protection of the reputation or rights of Vivantes and had thus been disproportionate. The domestic courts had not struck a fair balance between the considerable public interest in being informed about shortcomings in the care for the elderly provided by a State-owned company on the one hand and the rights of the service provider on the other. (iii) The third party 61. The trade union ver.di provided information on the organisation of institutional care for the elderly in Germany as well as the working conditions of employees in this sector, which were frequently characterised by staff shortages resulting in a heavy workload and overtime for employees. In many nursing homes too many patients were assigned to individual members of staff, who were therefore in a position to provide only basic care. Supervision of nursing homes was mainly carried out by the Medical Review Board of the health insurance fund on the basis of annual inspections. The latter was under no obligation to consult the staff employed in the nursing homes on the occasion of such visits. However, it was the employees who were the first to become aware of unsatisfactory conditions in the care provided. For this reason staff should be provided with effective means to draw attention to shortcomings in the provision of care and should be able to report breaches of the rights of patients without having to fear retaliatory measures by their employer. (b) The Court’s assessment (i) The general principles applicable in this case 62. The fundamental principles underlying the assessment of whether an interference with the right to freedom of expression was proportionate are well established in the Court’s case-law and have been summed up as follows (see, among other authorities, Steel and Morris v. the United Kingdom, no. 68416/01, § 87, ECHR 2005 ‑ II) : “... (ii) The adjective ‘necessary’, within the meaning of Article 10 § 2, implies the existence of a ‘pressing social need’. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a ‘restriction’ is reconcilable with freedom of expression as protected by Article 10. (iii) The Court’s task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether it was ‘proportionate to the legitimate aim pursued’ and whether the reasons adduced by the national authorities to justify it are ‘relevant and sufficient’ ... In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they relied on an acceptable assessment of the relevant facts ...” 63. As regards the application of Article 10 of the Convention to the workplace, the Court has held that the signalling by an employee in the public sector of illegal conduct or wrongdoing in the workplace should, in certain circumstances, enjoy protection. This may be called for in particular where the employee or civil servant concerned is the only person, or part of a small category of persons, aware of what is happening at work and is thus best placed to act in the public interest by alerting the employer or the public at large (see Guja v. Moldova [GC], no. 14277/04, § 72, ECHR 2008 ‑ ...., and Marchenko v. Ukraine, no. 4063/04, § 46, 19 February 2009). 64. The Court is at the same time mindful that employees owe to their employer a duty of loyalty, reserve and discretion (see, for example, Marchenko, cited above, § 45). While such duty of loyalty may be more pronounced in the event of civil servants and employees in the public sector as compared to employees in private-law employment relationships, the Court finds that it doubtlessly also constitutes a feature of the latter category of employment. It therefore shares the Government’s view that the principles and criteria established in the Court’s case-law with a view to weighing an employee’s right to freedom of expression by signalling illegal conduct or wrongdoing on the part of his or her employer against the latter’s right to protection of its reputation and commercial interests also apply in the case at hand. The nature and extent of loyalty owed by an employee in a particular case has an impact on the weighing of the employee’s rights and the conflicting interests of the employer. 65. Consequently, in the light of this duty of loyalty and discretion, disclosure should be made in the first place to the person’s superior or other competent authority or body. It is only where this is clearly impracticable that the information can, as a last resort, be disclosed to the public. In assessing whether the restriction on freedom of expression was proportionate, the Court must therefore take into account whether the applicant had any other effective means of remedying the wrongdoing which he or she intended to uncover (see Guja, cited above, § 73). 66. The Court must also have regard to a number of other factors when assessing the proportionality of the interference in relation to the legitimate aim pursued. In the first place, particular attention shall be paid to the public interest involved in the disclosed information. The Court reiterates in this regard that there is little scope under Article 10 § 2 of the Convention for restrictions on debate on questions of public interest (see, among other authorities, Stoll v. Switzerland [GC], no. 69698/01, § 106, ECHR 2007 ‑ XIV). 67. The second factor relevant to this balancing exercise is the authenticity of the information disclosed. It is open to the competent State authorities to adopt measures intended to respond appropriately and without excess to defamatory accusations devoid of foundation or formulated in bad faith (see Castells v. Spain, 23 April 1992, § 46, Series A no. 236). Moreover, freedom of expression carries with it duties and responsibilities and any person who chooses to disclose information must carefully verify, to the extent permitted by the circumstances, that it is accurate and reliable (see Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 65, ECHR 1999 ‑ III). 68. On the other hand, the Court must weigh the damage, if any, suffered by the employer as a result of the disclosure in question and assess whether such damage outweighed the interest of the public in having the information revealed (see Guja, cited above, § 76). 69. The motive behind the actions of the reporting employee is another determinant factor in deciding whether a particular disclosure should be protected or not. For instance, an act motivated by a personal grievance or personal antagonism or the expectation of personal advantage, including pecuniary gain, would not justify a particularly strong level of protection. It is important to establish that, in making the disclosure, the individual acted in good faith and in the belief that the information was true, that it was in the public interest to disclose it and that no other, more discreet means of remedying the wrongdoing was available to him or her (see Guja, cited above, § 77). 70. Lastly, in connection with the review of the proportionality of the interference in relation to the legitimate aim pursued, a careful analysis of the penalty imposed on the applicant and its consequences is required (see Fuentes Bobo, cited above, § 49). (ii) Application of the above principles in the present case (α) The public interest in the disclosed information 71. Turning to the circumstances of the present case, the Court notes that the information disclosed by the applicant was undeniably of public interest. In societies with an ever growing part of their elderly population being subject to institutional care, and taking into account the particular vulnerability of the patients concerned, who often may not be in a position to draw attention to shortcomings in the provision of care on their own initiative, the dissemination of information about the quality or deficiencies of such care is of vital importance with a view to preventing abuse. This is even more evident when institutional care is provided by a State-owned company, where the confidence of the public in an adequate provision of vital care services by the State is at stake. (β) Whether the applicant had alternative channels for making the disclosure 72. As regards the availability of alternative channels for making the disclosure and obtaining an internal clarification of the allegations, the Court notes that the applicant not only indicated, on numerous occasions between January 2003 and October 2004, to her superiors that she was overburdened, but also alerted the management to a possible criminal complaint through her counsel by letter of 9 November 2004. While it is true that the legal qualification of the employer’s conduct as aggravated fraud was mentioned for the first time in the criminal complaint of 7 December 2004 drafted by the applicant’s lawyer, the Court observes that the applicant had nevertheless disclosed the factual circumstances on which her subsequent criminal complaint was based – including the fact that services had not been properly documented – in her previous notifications to her employer. It further notes that the criminal complaint requested the public prosecution authorities to examine the circumstances of the case as described in the criminal complaint under all relevant legal aspects and that the latter was thus not necessarily limited to fraud. 73. The Court refers in this context to the aforementioned decision of the Federal Labour Court of 3 July 2003 (see “Relevant domestic law and practice” above) stating that seeking previous internal clarification of the allegations could not reasonably be expected of an employee if the latter had obtained knowledge of an offence which, if he or she failed to report it, would render him or her liable to criminal prosecution. In addition, previous internal clarification of the matter was not required if redress could not legitimately be expected. If the employer failed to remedy an unlawful practice even though the employee had previously drawn his attention to that practice, the latter was no longer bound by a duty of loyalty towards his employer. The Court further notes that similar reasoning is reflected in the Parliamentary Assembly’s guiding principles on the protection of whistle ‑ blowers (see “Relevant international law and practice” above) stipulating that where internal channels could not reasonably be expected to function properly, external whistle-blowing should be protected. 74. The Court finds that these considerations also apply in the case at hand. The applicant was of the opinion that none of her previous complaints to her employer had contributed to an amelioration of the employment and care situation in the nursing home. She also indicated to her employer that one of her concerns was that failure to report the deficiencies in the care provided would render her liable to criminal prosecution. The Court therefore considers that it has not been presented with sufficient evidence to counter the applicant’s submission that any further internal complaints would not have constituted an effective means of obtaining an investigation of and remedy for the shortcomings in the care provided. 75. The Court also notes that German law does not provide for a particular enforcement mechanism for investigating a whistle-blower’s complaint and seeking corrective action from the employer. 76. In the light of the foregoing, the Court considers that in circumstances such as those in the present case external reporting by means of a criminal complaint was justifiable. (γ) The authenticity of the disclosed information 77. Another factor relevant to the balancing exercise is the authenticity of the information disclosed. The Court reiterates in this context that freedom of expression carries with it duties and responsibilities and any person who chooses to disclose information must carefully verify, to the extent permitted by the circumstances, that it is accurate and reliable – in particular if, as in the present case, the person owes a duty of discretion and loyalty to her employer (see Handyside v. the United Kingdom, 7 December 1976, § 49, Series A no. 24, and Haseldine v. the United Kingdom, no. 18957/91, Commission decision of 13 May 1992, Decisions and Reports (DR) 73, pp. 225 and 231 ). 78. The Court notes in this context that the Federal Constitutional Court had pointed out in its decision of 1 July 2001 that even in the event that an employee reported the employer to the public prosecution authorities on his or her own initiative, the rule of law required that such exercise of a citizen’s right could not, as a rule, justify dismissal without notice unless the employee had knowingly or frivolously reported incorrect information (file No. 1 BvR 2049/00). Indeed the Berlin Labour Court of Appeal found in the case at hand that the applicant had frivolously based her criminal complaint on facts that could not be demonstrated in the resulting preliminary criminal and labour court proceedings. 79. However, the Court notes that the deficiencies disclosed by the applicant in her criminal complaint had not only been raised in her previous notifications to her employer but had also been the subject of criticism by the MDK following its inspections in 2002 and 2003 which had led it to point out that staff shortages were at the origin of the inadequate care. The allegations made by the applicant were therefore not devoid of factual background and there is nothing to establish that she had knowingly or frivolously reported incorrect information. The factual information about the deficiencies in care was further supplemented by the applicant in written submissions to the labour courts in the proceedings regarding her dismissal. Furthermore, the Court notes in this connection that, according to the statement of facts in the Labour Court of Appeal’s judgment of 28 March 2006, the applicant had, inter alia, alleged at the court hearing on the same date that she and other staff members had been requested to supplement documentation on care provided even though the documented services had not actually been rendered. She had referred to the testimony of three of her colleagues in that connection. 80. As far as the ensuing preliminary criminal proceedings are concerned, the Court notes that it is primarily the task of the law-enforcement authorities to investigate the veracity of allegations made in the context of a criminal complaint and that it cannot reasonably be expected from a person having lodged such a complaint in good faith to anticipate whether the investigations will lead to an indictment or will be terminated. The Court refers in this context to the aforementioned decision of the Federal Labour Court of 3 July 2003 in which the latter held that an employee who exercised his or her constitutionally guaranteed right to lodge a criminal complaint in good faith could not sustain a disadvantage in the event that the underlying allegations proved wrong or could not be clarified in the course of the ensuing proceedings. It further observes that the Parliamentary Assembly’s guiding principles are based on similar considerations, stating that a whistle-blower should be considered as having acted in good faith provided he or she had reasonable grounds to believe that the information disclosed was true, even if it later turned out that this was not the case, and provided he or she did not pursue any unlawful or unethical objectives. 81. The Court is not convinced by the Government’s argument that the applicant’s failure to further specify her allegations and to name additional witnesses in the course of the criminal investigations against Vivantes called into question the authenticity of her allegations made in the criminal complaint. The Court notes, as has been submitted by the applicant, that such conduct on her part may be explained by a fear of incriminating herself as well as the risk of being subject to retaliatory measures on the part of Vivantes in the event that she disclosed further internal information. In any event, the Court considers that although a lack of evidence may result in the preliminary investigations being discontinued, this does not necessarily mean that the allegations underlying the criminal complaint were without factual basis or frivolous at the outset. (δ) Whether the applicant acted in good faith 82. The Court further notes that the applicant argued that her main motive for lodging the criminal complaint had been the potential threat to the health of the particularly vulnerable patients resulting from the unsatisfactory working conditions in the nursing home, whereas the Government maintained that she had aimed to denounce the alleged staffing shortage and put additional pressure on her employer by involving the public. 83. On the basis of the materials before it and even assuming that the amelioration of her own working conditions might have been an additional motive for her actions, the Court does not have reason to doubt that the applicant acted in good faith and in the belief that it was in the public interest to disclose the alleged wrongdoing on the part of her employer to the prosecution authorities and that no other, more discreet means of remedying the situation was available to her. 84. The Court is not persuaded by the Government’s argument that in view of the regular inspections by the Berlin Inspectorate for Residential Homes as well as those carried out by the MDK, the applicant should have been aware that a criminal complaint was unnecessary and that she could have waited for the MDK to issue its report on its inspection of 18 November 2004 before submitting her criminal complaint. The Court notes in this respect that in the applicant’s experience previous complaints by the MDK about the conditions in the nursing home had not brought about any change and she was therefore of the opinion that a further visit by the MDK could not be considered as an effective alternative by which to remedy the shortcomings and avoid her own criminal liability. Following her numerous previous internal complaints with Vivantes, which had been to no avail, she apparently considered the criminal complaint to be a last resort by which to remedy the deficiencies in the care provided. The Court notes in this context that a report of a subsequent check carried out by the MDK in 2006 points out that deficiencies in care that had already been the subject of its reports in 2002, 2003 and 2004 persisted and required urgent action. 85. As regards the Government’s submissions that the polemicalformulation of the criminal complaint was evidence that the applicant’s true motive was to denounce and put pressure on her employer, the Court considers that even if the applicant allowed herself a certain degree of exaggeration and generalisation, her allegations were not entirely devoid of factual grounds (see paragraph 79 above) and did not amount to a gratuitous personal attack on her employer but rather constituted a description of the serious shortcomings in the functioning of the nursing home. 86. This finding is further corroborated by the fact that the applicant – once she had concluded that external reporting was necessary – did not have immediate recourse to the media or the dissemination of flyers in order to attain maximum public attention but chose to first have recourse to the public prosecution authorities with a view to initiating investigations (see, by contrast, Balenovic v. Croatia, (dec.), no. 28369/07, 30 September 2010). She sought the assistance and advice of a lawyer who made a legal assessment of the facts as submitted by the applicant and formulated the criminal complaint accordingly. It was only following her ordinary dismissal on 19 January 2005 that she disseminated flyers in which she complained of the alleged avarice of her employer and made reference to her criminal complaint. 87. The foregoing considerations are sufficient to enable the Court to conclude that the applicant acted in good faith when submitting her criminal complaint against her employer. (ε) The detriment to the employer 88. On the other hand, the Court also considers that the allegations underlying the applicant’s criminal complaints, in particular those containing allegations of fraud, were certainly prejudicial to Vivante’s business reputation and commercial interests. 89. It reiterates in this context that there is an interest in protecting the commercial success and viability of companies for the benefit of shareholders and employees, but also for the wider economic good (see Steel and Morris v. the United Kingdom, no. 68416/01, § 94, ECHR 2005 ‑ II). The Court finds it relevant to note in this context that in the case at hand the employer is a State-owned company providing, inter alia, services in the sector of institutional care for the elderly. While the Court accepts that State-owned companies also have an interest in commercial viability, it nevertheless points out that the protection of public confidence in the quality of the provision of vital public service by State-owned or administered companies is decisive for the functioning and economic good of the entire sector. For this reason the public shareholder itself has an interest in investigating and clarifying alleged deficiencies in this respect within the scope of an open public debate. 90. In the light of these considerations, the Court finds that the public interest in receiving information about shortcomings in the provision of institutional care for the elderly by a State-owned company is so important in a democratic society that it outweighs the interest in protecting the latter’s business reputation and interests. (ζ) The severity of the sanction 91. Lastly, the Court notes that the heaviest sanction possible under labour law was imposed on the applicant. This sanction not only had negative repercussions on the applicant’s career but it could also have a serious chilling effect on other employees of Vivantes and discourage them from reporting any shortcomings in institutional care. Moreover, in view of the media coverage of the applicant’s case, the sanction could have a chilling effect not only on employees of Vivantes but also on other employees in the nursing service sector. This chilling effect works to the detriment of society as a whole and also has to be taken into consideration when assessing the proportionality of, and thus the justification for, the sanctions imposed on the applicant, who, as the Court has held above, was entitled to bring the matter at issue to the public’s attention (see Kudeshkina v. Russia, no. 29492/05, § 99, 26 February 2009). This is particularly true in the area of care for the elderly, where the patients are frequently not capable of defending their own rights and where members of the nursing staff will be the first to become aware of unsatisfactory conditions in the care provided and are thus best placed to act in the public interest by alerting the employer or the public at large. 92. Accordingly, the Court considers that the applicant’s dismissal without notice in the case at hand was disproportionately severe. (iii) Conclusion 93. Being mindful of the importance of the right to freedom of expression on matters of general interest, of the right of employees to report illegal conduct and wrongdoing at their place of work, the duties and responsibilities of employees towards their employers and the right of employers to manage their staff, and having weighed up the other various interests involved in the present case, the Court comes to the conclusion that the interference with the applicant’s right to freedom of expression, in particular her right to impart information, was not “necessary in a democratic society”. 94. The Court therefore considers that in the present case the domestic courts failed to strike a fair balance between the need to protect the employer’s reputation and rights on the one hand and the need to protect the applicant’s right to freedom of expression on the other. 95. There has accordingly been a violation of Article 10 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 96. The applicant further complained that the proceedings before the labour courts regarding her dismissal were unfair. In her opinion, the employer should have been obliged to prove that her criminal complaint had been frivolously based on untruthful allegations and thus constituted a reason for dismissal without notice under Article 626 § 1 of the German Civil Code. The Court of Appeal had, however, shifted the burden of proof in this respect onto the applicant. She relied on 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 ...” 97. The Court has repeatedly held that Article 6 does not lay down any rules on the admissibility of evidence or the way it should be assessed. These are therefore primarily matters for regulation by national law and the national courts, which enjoy a wide margin of appreciation (see Klasen v. Germany, no. 75204/01, § 43, 5 October 2006). It notes that in the present case, the applicant, who was represented by counsel throughout the proceedings, had the benefit of adversarial proceedings and was at all stages able to submit, and indeed submitted, the arguments she considered relevant to the case. There is nothing to establish that the evaluation of the case by the domestic courts was arbitrary. 98. 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. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 99. 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 100. The applicant claimed 38,498.56 euros (EUR) in respect of pecuniary damage and the additional amount of EUR 112,135.19 for future pecuniary damage. As regards pecuniary damage already incurred, the amount of EUR 33,730.12 represented the loss of salary following her dismissal without notice on 9 February 2005. Furthermore, since contributions to the supplementary company pension scheme for incapacity to work ( Betriebsrente für eine volle Erwerbsminderung ) had been discontinued following her dismissal in February 2005, the applicant argued that she had lost a monthly supplementary company pension in the amount of EUR 194.63 to which she would have been entitled as of 1 June 2008. Consequently, at the time of submission of her just satisfaction claims in mid-June 2010, the accrued damage resulting from the loss of such monthly benefits since 1 June 2008 amounted to EUR 4,768.44. She further claimed that she would have been entitled to such monthly benefits until payment of her regular old-age pension as of 30 September 2028, resulting in future pecuniary damage in the amount of EUR 47,861.27 until that date. She argued, lastly, that her monthly old-age pension entitlement as of July 2028 would have amounted to EUR 334,76. Assuming an average life expectancy of 83 years, the loss of her pension entitlement for a period of 16 years (2028 until 2044) thus represented future pecuniary damage in the amount of EUR 64,273.92. The applicant further claimed EUR 10,000 in respect of non-pecuniary damage, claiming that the lengthy proceedings before the domestic courts had caused her psychological stress and impaired her health. 101. The Government contested these claims. As regards the applicant’s claims in respect of pecuniary damage, the Government argued that there was nothing to establish that this damage had been caused by the alleged breach of the Convention which originated in the applicant’s dismissal without notice of 9 February 2005. The Government pointed out that by a letter dated 19 January 2005, that is, prior to the applicant’s dismissal without notice on 9 February 2005, she had already been given notice on account of her repeated illness, with effect from 31 March 2005. For this reason, a loss of income resulting from the dismissal without notice could only be claimed for the period from 9 February until 31 March 2005, the date on which her ordinary dismissal had become effective. However, during that period the applicant had received sickness benefits ( Krankengeld ) followed by a transitional allowance ( Übergangsgeld ) and had not actually suffered any pecuniary damage. The Government further submitted that the applicant’s calculation with respect to her claim for loss of company pension benefits did not demonstrate how that claim could have its origin in an event which post-dated the termination of her employment relationship by ordinary dismissal with effect from 31 March 2005. 102. As regards non-pecuniary damage, the Government, while leaving the matter to the Court’s discretion, considered the amount claimed by the applicant to be excessive. 103. The Court notes that it is not disputed between the parties that the applicant’s employment relationship ended as a consequence of her ordinary dismissal with effect from 31 March 2005. It further observes that the applicant herself had submitted that she received sickness benefits or a transitional allowance for the period between 9 February and 31 March 2005, which compensated for her salary. The Court therefore finds that it has not been established that the applicant suffered pecuniary damage during the period from 9 February to 31 March 2005. It further does not discern any causal link between the violation found and the pecuniary damage alleged for the periods after termination of the employment relationship by ordinary dismissal with effect from 31 March 2005. The Court therefore rejects the applicant’s claim in respect of pecuniary damage. 104. On the other hand, it considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards her EUR 10,000 under that head. B. Costs and expenses 105. The applicant also claimed EUR 6,100 for the costs and expenses incurred before the Court. 106. The Government argued that this sum considerably exceeded the amounts usually awarded by the Court in respect of costs and expenses. 107. 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 in respect of costs and expenses for the proceedings before the Court. C. Default interest 108. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 10 (freedom of expression) of the Convention, finding that the applicant’s dismissal without notice had been disproportionate and the domestic courts had failed to strike a fair balance between the need to protect the employer’s reputation and the need to protect the applicant’s right to freedom of expression. |
992 | Cases in which the Court found no violation of Article 18 in conjunction with Article 5 | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Constitution of Ukraine 1996 94. Article 29, which is relevant to the case, reads as follows: “Every person has the right to freedom and personal inviolability. No one shall be arrested or held in custody other than pursuant to a reasoned court decision and only on the grounds of and in accordance with a procedure established by law. In the event of an urgent necessity to prevent or stop a crime, bodies authorised by law may hold a person in custody as a temporary preventive measure, the reasonable grounds for which shall be verified by a court within seventy-two hours. The detained person shall be released immediately if he or she has not been provided, within seventy-two hours of detention, with a reasoned court decision in respect of their being held in custody. ... Everyone who has been detained has the right to challenge his or her detention in court at any time. ...” B. Criminal Code 2001 95. The relevant provisions can be summarised as follows: - Article 157 § 3 provides that interference with work of an electoral officer coupled with coercion, violence or threats of violence, committed following a conspiracy by a group of persons or by a public official using his/her position is punishable by three to seven years ’ imprisonment, with no right to hold certain posts or carry out certain activities for two to three years; - Article 191 § 5 provides for seven to twelve years ’ imprisonment, with confiscation of property and no right to hold certain posts or carry out certain activities for up to three years, as penalty for embezzlement involving particularly large amounts or committed by an organised group; - Articles 255 § 1 provides for five to twelve years ’ imprisonment as penalty for creation of a criminal organisation; - under Article 289 § 2, car theft committed, in particular, following a conspiracy or coupled with violence or threats of violence, is punishable by imprisonment for five to eight years, with or without property confiscation; - Article 349 penalises taking hostage a public official by eight to fifteen years ’ imprisonment. C. Code of Criminal Procedure 2012 96. The relevant provisions provide: Article 176. General provisions on preventive measures “1. Preventive measures are: (1) a personal undertaking; (2) a personal warranty; (3) bail; (4) house arrest; and (5) pre-trial detention. 2. Arrest [without a court order] ( затримання ) is a provisional preventive measure which can be used on the grounds and under the procedure defined by this Code. 3. The investigating judge or the court shall reject an application for a preventive measure if the investigator or the prosecutor has not proven that there are sufficient grounds to believe that none of the more lenient preventive measures would be sufficient for the prevention of the established risk or risks. The most lenient preventive measure is a personal undertaking and the most severe one is pre-trial detention. 4. Preventive measures shall be applied: during the investigation – by the investigating judge at the request of a prosecutor, or at the request of an investigator, approved by a prosecutor; and during the trial – by the court at the request of a prosecutor.” Article 177. Purpose and grounds for the application of preventive measures “1. The purpose of a preventive measure is to ensure that a suspect or an accused complies with his or her procedural obligations, as well as to prevent attempts to: (1) abscond from the pre-trial investigation authorities and/or the court; (2) destroy, conceal or spoil any of the objects or documents that are essential for establishing the circumstances of the criminal offence; (3) exert an unlawful influence on the victim, the witnesses, or on other suspects, accused, the expert or specialist ...; (4) obstruct the criminal proceedings in any other way; (5) commit another criminal offence or continue the criminal offence of which he/she is suspected or accused. 2. A preventive measure shall be applied on the grounds of a reasonable suspicion that the person has committed a criminal offence and provided there are risks giving sufficient grounds for the investigating judge or the court to believe that the suspect, the accused or the convict could commit actions specified in paragraph one of this Article ...” Article 181. House arrest “1. House arrest consists of prohibiting the suspect or the accused from leaving his or her place of residence twenty-four hours per day or during certain hours. 2. House arrest may be applied to a person suspected or accused of having committed a criminal offence punishable by imprisonment. ... 5. National police officers may visit the suspect or the accused under house arrest at his or her domicile, with a view to surveying his or her behaviour. They may demand verbal or written explanations as regards the compliance by the suspect or the accused with his or her obligations. Electronic tracking devices may be used. 6. The validity period of a ruling of the investigating judge on placing a person under house arrest shall not exceed two months. If required, the duration of house arrest may be extended at the prosecutor ’ s request within the limits of the pre-trial investigation .... The total duration of house arrest may not exceed six months. Thereafter the ruling on the application of that preventive measure shall be deemed to have expired and the house arrest measure shall be considered lifted.” Article 208. Arrest by a competent official [without a court order] “1. [In the absence of a court order a] competent official is entitled to arrest ( затримати ) a person suspected of having committed a crime for which a prison sentence may be imposed, only in the following cases: (1) if the person has been caught whilst committing a crime or attempting to commit one; or (2) if immediately after a criminal offence the statements of an eyewitness, including the victim, or the totality of obvious signs on the body, or clothes or at the scene of the event indicate that this person has just committed an offence ... 4. A competent official who has carried out the arrest shall immediately inform the arrested person, in a language which he/she understands, of the grounds for the arrest and of what crime he/she is suspected of having committed. The official shall also explain to the arrested person his/her rights: to be legally represented; to be provided with medical assistance; to make statements or to remain silent; to inform [third] persons ... of his/her arrest and whereabouts; to challenge the grounds for the arrest; as well as the other procedural rights set out in this Code. 5. A report shall be drawn up in respect of an individual ’ s arrest containing, [in particular,] the following information: the place, date and exact time (the hour and minute) of the arrest ...; the grounds for the arrest; the results of the search of the person; requests, statements or complaints of the arrested person, if any; and a comprehensive list of his/her procedural rights and duties. The arrest report shall be signed by the official who drew it up, and by the arrested person. A copy shall immediately be served on the arrested person after obtaining his/her signature ...” 97. Article 276 of the Code provides that when a person has been arrested, a formal notification of suspicion must be served on him or her. From that moment, the person acquires the procedural status of a suspect. The official serving the notification is required to explain the suspect ’ s procedural rights, including the right to remain silent and the right to legal assistance. 98. Article 278 of the Code provides that a person who has been arrested without a court order must be released unless a formal notification of suspicion has been served on him or her within twenty-four hours of arrest. D. Compensation Act 1994 99. Under the Law of Ukraine on the Procedure for Compensating Damage caused to Citizens by the Unlawful Actions of Bodies in charge of Operational Enquiries, Pre-trial Investigation, Prosecutors or Courts (also referred to as “the Compensation Act”), a person is entitled to compensation for damage on account of, in particular, unlawful detention (section 1). The preconditions for entitlement to compensation include “a finding of ... unlawfulness of arrest and detention in a guilty verdict or other judicial decision” or termination of criminal proceedings for want of evidence of the person ’ s guilt (section 2). E. Civil Code 2003 100. Article 1176 provides for the right to compensation for damage sustained as a result of unlawful decisions, actions or omissions by bodies of inquiry, pre-trial investigation authorities, prosecutor ’ s offices and courts. It specifies that damage caused to an individual, in particular, by unlawful criminal prosecution, unlawful application of a preventive measure, and/or unlawful arrest must be compensated in full, irrespective of the guilt of officials of bodies of inquiry, pre-trial investigation authorities, prosecutor ’ s offices and courts. The procedure for claiming compensation for damage as described above “shall be established by law”. THE LAW I. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION 101. The applicant complained under Article 3 of the Convention about the conditions in which he had been transported from Kyiv to Chernigiv on 2 November 2015. He also complained that he had been obliged to participate in lengthy court hearings immediately after the coronary angioplasty of 25 December 2015. Lastly, he complained under the same provision that he had been confined in a metal cage during the court hearings of 13, 22 and 25 January 2016. Article 3 of the Convention relied on reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility 1. As regards the applicant ’ s transfer from Kyiv to Chernigiv on 2 November 2015 102. The applicant complained under Article 3 of the Convention that on 2 November 2015, during his transfer from Kyiv to Chernigiv and thereafter, he had been kept in a minibus for about eight hours without any water, food or access to a toilet. 103. The Government observed that the trip in question had not lasted long, given that the distance to cover was 150 km. They further submitted that the applicant had received water and had been allowed to use the toilet at his requests. 104. The Court refers to its well-established case-law principles regarding the assessment of whether the treatment complained of attained the minimum level of severity to fall within the scope of Article 3 of the Convention ( see paragraphs 118 and 119 below). The Court has found a violation of that provision where a detainee was kept in a police-station cell for twenty-two hours without food or drink or unrestricted access to a toilet ( see Fedotov v. Russia, no. 5140/02, §§ 66-70, 25 October 2005). The Court has also found unacceptable the conditions of transport in cases where the applicants had remained confined in cramped prison vans or train carriages, without proper ventilation, water or catering, for long periods sometimes exceeding forty hours, and where they had had to undergo such trips on many occasions (see, for example, Yakovenko v. Ukraine, no. 15825/06, §§ 105-33, 25 October 2007; Koktysh v. Ukraine, no. 43707/07, §§ 106-08, 10 December 2009; and Konovalchuk v. Ukraine, no. 31928/15, §§ 66-70, 13 October 2016). 105. Turning to the circumstances of the present case, the Court notes that the applicant was transported in a regular minibus, which he did not allege to have found uncomfortable ( see paragraph 21 above). In the absence of any details from the Government as regards how long the applicant had had to wait in that vehicle upon arrival in Chernigiv or as regards any arrangements for catering, the Court considers plausible the applicant ’ s submission that he was made to stay in the minibus for eight hours without being provided with food. 106. The Court observes that the parties are in dispute as to whether the applicant was provided with drinking water and had access to a toilet. The Court has held in its case-law that in cases which concern conditions of detention, applicants are expected in principle to submit detailed and consistent accounts of the facts complained of and to provide, as far as possible, some evidence in support of their complaints ( see Visloguzov v. Ukraine, no. 32362/02, § 45, 20 May 2010). The applicant did not provide any details as to whether he had asked to go to the toilet and, if so, on how many occasions and what the guards ’ response had been: refusing his requests, making him wait or denying him privacy. 107. That being so and having regard to the fact that the applicant ’ s transfer in allegedly inadequate conditions took place only once and lasted for a maximum of eight hours, the Court considers that the applicant has not substantiated that the conditions of his transfer on 2 November 2015, even if as unpleasant as alleged, were such as to give rise to any appearance of a breach of Article 3 of the Convention. 108. It follows that this complaint must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention. 2. As regards the applicant ’ s participation in the court hearings after the coronary operation of 25 December 2015 109. The Government submitted that the investigating judge who had conducted the hearings on 26-28 December 2015 had duly taken into account the applicant ’ s state of health. They further observed that several medical officials had monitored the applicant ’ s condition on a permanent basis and had provided him with medical care whenever required. The Government therefore invited the Court to dismiss this complaint as being manifestly ill-founded. 110. The applicant disagreed. 111. Contrary to the Government ’ s submission, the Court considers this complaint to be neither manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention, nor inadmissible on any other grounds. It therefore declares it admissible. 3. As regards the applicant ’ s confinement in a metal cage during the court hearings of 13, 22 and 25 January 2016 112. 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. As regards the applicant ’ s participation in the court hearings after the coronary operation of 25 December 2015 (a) The parties ’ submissions 113. The applicant submitted that, in spite of the fact that he had been extremely weak after the operation of 25 December 2015, he had been obliged to participate in long court hearings. He observed, in particular, that his forensic medical examination with a view to establishing whether he was fit enough to participate in court hearings had never in fact been carried out. As regards his examination on 27 December 2015, it was reported as a simple medical examination ( see paragraph 76 above). Moreover, it had taken place in the presence of and under pressure from the prosecution officials. 114. The applicant further submitted that the court hearings, in particular the one on 27 December 2015, had been unacceptably long. In addition, the hearing room had been too crowded, which had exhausted him physically and caused him considerable stress and anguish. 115. The Government contended that the applicant had been exaggerating his health-related concerns. In their opinion, he was a person with robust health. They observed, in particular, that during the entire period of his employment in the Dnipropetrovsk Regional State Administration ( see paragraph 7 above), he had not taken a single day ’ s sick leave. The Government also pointed out that he was a heavy smoker who had continued smoking even while in hospital. 116. The Government emphasised that the applicant had been under constant medical supervision during the court hearings on 26, 27 and 28 December 2015 and that he had been provided with all the required medical care. They pointed out that not all the hearings on the dates mentioned had been long. 117. The applicant contested the Government ’ s arguments. He drew the Court ’ s attention to the fact that he had continued his medical treatment long after the events in question, which proved the seriousness of his medical condition at the time. (b) The Court ’ s assessment (i) General principles laid down in the Court ’ s case-law 118. 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 (see, for example, Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000 ‑ IV). Indeed, the prohibition of torture and inhuman or degrading treatment or punishment is a value of civilisation closely bound up with respect for human dignity ( see Bouyid v. Belgium [GC], no. 23380/09, § 81, ECHR 2015). 119. 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 an intention to humiliate or debase the victim cannot conclusively rule out a 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. It should also be pointed out that it may well suffice that the victim is humiliated in his own eyes, even if not in the eyes of others ( see Bouyid, cited above, §§ 85-86, with numerous further references). 120. In the context of deprivation of liberty the Court has consistently stressed that, to fall under Article 3, the suffering and humiliation involved must in any event go beyond that inevitable element of suffering and humiliation connected with detention. The State must ensure that a person is detained in conditions which are compatible with respect for human dignity, that the manner and method of the execution of the measure do not subject him or her to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his or her health and well-being are adequately secured ( see Muršić v. Croatia [GC], no. 7334/13, § 99, 20 October 2016, with further references). (ii) Application of the above principles in the present case 121. It is an established fact that the applicant underwent a coronary angioplasty on 25 December 2015 ( see paragraph 62 above). The Court therefore dismisses the Government ’ s conjecture that the applicant “had been exaggerating his health-related concerns” ( see paragraph 115 above). Nor does it find of relevance their observation that he had not been on sick leave during his previous public service or that he was a heavy smoker (ibid.). 122. It is not the task of the Court to substitute its opinion for that of the domestic experts in assessing the seriousness of the applicant ’ s medical conditions and the possible risks of them deteriorating ( see Mikhaniv v. Ukraine, no. 75522/01, § 70, 6 November 2008). That being so, the Court does not question the doctors ’ statements that the applicant could be moved in a wheelchair under medical supervision without risking his life ( see paragraphs 70, 73 and 76 above). The Court notes, however, that, in spite of the judicial ruling to that effect, there was no forensic medical examination of the applicant giving a clear answer to the question whether he was fit enough to participate in court hearings. Although a forensic medical expert was present during the applicant ’ s examination on 27 December 2015, he abstained from answering that question ( see paragraph 76 above). In any event, even if the applicant had been found fit enough to participate in court hearings, that finding could not be interpreted as giving the green light to the unlimited duration of such hearings. 123. The Court accepts the applicant ’ s argument that he was weak after the surgery in question. Indeed, he must have required not only medical supervision and treatment, but also sufficient rest. 124. Although the hearing with the applicant ’ s participation on 26 December 2015 lasted for two hours, which did not appear excessively long, the Court considers it important to take into account its broader context. It observes, in particular, that the previous day, immediately after the applicant ’ s transfer from the intensive-care ward to an ordinary ward late in the evening, he had had a visit from the investigator, who had tried to serve him with a copy of the application for his detention ( see paragraphs 61 and 64 above). That must have put the applicant, who was particularly vulnerable after the surgery, in a state of anxiety and stress. It appears that in the afternoon of 26 December 2015 his health deteriorated, which is why the hearing was adjourned ( see paragraph 69 above). 125. The following day the applicant was obliged to participate in a court hearing for over twenty-one hours, including throughout the night from 27 to 28 December 2015 ( see paragraph 79 above). Furthermore, even the previous night he had not been allowed uninterrupted sleep, given that at about 1 .30 a.m. on 27 December 2015 the investigator had tried to reach him in the hospital ward ( see paragraph 71 above). 126. In the Court ’ s opinion, that would be an ordeal even for somebody in good health. For the applicant, who had not yet recovered after the surgery, staying in court for twenty-one hours must have caused not only emotional and psychological distress, but considerable physical fatigue. 127. The Court considers that conducting judicial hearings at night can be justified only in cases of particular urgency. No such urgency existed in the applicant ’ s case. The only issue before the investigating judge was whether or not to place the applicant in detention instead of the previously imposed house arrest. Its examination could have been postponed for the duration of the applicant ’ s post-operative hospital treatment (seven to ten days – see paragraph 65 above). 128. Having regard to all the circumstances of the present case, the Court considers that the applicant was subjected to inhuman and degrading treatment contrary to Article 3 of the Convention. 129. Accordingly, there has been a violation of that provision. 2. As regards the applicant ’ s confinement in a metal cage during the court hearings of 13, 22 and 25 January 2016 (a) The parties ’ submissions 130. The applicant submitted that his placement in a metal cage during the court hearings of 13, 22 and 25 January 2016 had been an unjustified and humiliating measure. He emphasised that even though he had been suspected of serious crimes, he had never manifested any violent behaviour, and that he had been feeling unwell. He pointed out that he was a well ‑ known politician and that the proceedings against him had received broad media coverage. Accordingly, he had been exposed in a metal cage not only to those present in the court room, but to a much wider audience. Lastly, the applicant contended that by having eventually replaced the metal cage by a glass cabin, the authorities had admitted the inadmissibility of that previous practice. 131. The Government admitted that during the court hearings on the mentioned dates the applicant had indeed been held in a metal cage. They observed that such a security measure had been in compliance with the legal rules applicable at the time. Metal cages had eventually been replaced by glass cabins and during the subsequent hearings the applicant had been confined in a glass cabin. Having regard to the insignificant duration of his confinement in a metal cage, the Government maintained that there had been no violation of his rights under Article 3 of the Convention. (b) The Court ’ s assessment 132. The Court notes that the holding of defendants in metal cages during a court hearing was a standard procedure in Ukraine, which was also applied in the applicant ’ s case. No assessment was ever made of the existence of any actual and specific security risks in the courtroom requiring that he be held in a metal cage during the hearings. 133. Although the applicant was confined in a metal cage during only three hearings, he was exposed behind bars not only to the persons attending those hearings but, owing to the high profile of the criminal proceedings against him, to a much wider audience as members of the public were following the proceedings via both national and international media (compare Lutsenko v. Ukraine (no. 2), no. 29334/11, § 171, 11 June 2015). 134. The Court has held that holding a person in a metal cage during a trial – having regard to its objectively degrading nature, which is incompatible with the standards of civilised behaviour that are the hallmark of a democratic society – constitutes in itself an affront to human dignity in breach of Article 3 ( see Svinarenko and Slyadnev v. Russia [GC], nos. 32541/08 and 43441/08, § 138, ECHR 2014 (extracts)). 135. The above conclusion remains pertinent in the circumstances of the present case. 136. Accordingly, there has been a violation of Article 3 of the Convention on this account. II. ALLEGED VIOLATIONS OF ARTICLE 5 OF THE CONVENTION 137. The applicant also complained: under Article 5 § 1 of the Convention that his arrest on 31 October 2015 and his re-arrest on 3 November 2015 had been unlawful and arbitrary; under Article 5 § 3 of the Convention that his pre-trial detention and house arrest had not been justified by “relevant and sufficient reasons”; under Article 5 § 4 that he had had no effective procedure at his disposal by which he could have challenged the lawfulness of his arrest on 31 October 2015 and his re-arrest on 3 November 2015; and under Article 5 § 5 of the Convention that he had no enforceable right to compensation in respect of the breach of his rights under other paragraphs of Article 5 of the Convention. The provisions relied on read as follows: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ... 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. 5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.” A. Admissibility 138. The Court observes that the Government did not dispute the applicability of Article 5 of the Convention to the applicant ’ s house arrest. According to its case-law, house arrest is considered, in view of its degree and intensity, to amount to deprivation of liberty within the meaning of this provision ( see Buzadji v. the Republic of Moldova [GC], no. 23755/07, § 104, 5 July 2016, with further references). 139. Having regard to the way in which the applicant ’ s house arrest was applied, as described in paragraphs 30 and 50 above, the Court accepts that it constituted deprivation of liberty in the sense of Article 5 (compare Kavkazskiy v. Russia, no. 19327/13, §§ 19 and 65, 28 November 2017). 140. Furthermore, the Court finds that the applicant ’ s complaints under Article 5 of the Convention are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that they are not inadmissible on any other grounds. They must therefore be declared admissible. B. Merits 1. Alleged violation of Article 5 § 1 of the Convention (a) The parties ’ submissions 141. The applicant contended that his arrest on 31 October 2015 had been unlawful and arbitrary. He drew the Court ’ s attention to the fact that more than a year had elapsed between the institution of the criminal proceedings against him on 15 August 2014 and his arrest. During that time he had not manifested any lack of cooperation with the investigating authorities. Furthermore, he had been actively involved in politics in Ukraine. 142. The applicant further submitted that Article 208 of the CCP, on which the PGO had relied as the legal basis for his arrest, had been inapplicable in his case, as it permitted arrest without a judicial warrant only in specific urgent cases, when a person had been caught whilst committing a crime or immediately thereafter. 143. The applicant alleged that his re-arrest on 3 November 2015, which was based on the same provision of the CCP, had been equally unlawful. In his opinion, that measure had merely served as a pretext for not releasing him within seventy-two hours of his arrest of 31 October 2015. 144. The Government submitted that the applicant ’ s arrest on 31 October 2015 and his re-arrest on 3 November 2015 had been in compliance with the applicable legal rules and based on a reasonable suspicion that he had committed criminal offences. (b) The Court ’ s assessment 145. Where the “lawfulness” of detention is in issue, including the question whether “a procedure prescribed by law” has been followed, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules thereof. Compliance with national law is not, however, sufficient: Article 5 § 1 requires in addition that any deprivation of liberty should be in keeping with the purpose of protecting the individual from arbitrariness. One general principle established in the case-law is that detention will be “arbitrary” where, despite complying with the letter of national law, there has been an element of bad faith or deception on the part of the authorities or where the domestic authorities neglected to attempt to apply the relevant legislation correctly ( see S., V. and A. v. Denmark [GC], nos. 35553/12 and 2 others, §§ 74 and 76, 22 October 2018, with further references). 146. The Court notes that under Ukrainian legislation deprivation of liberty without a reasoned court decision was possible only in a limited number of situations defined with sufficient precision. Thus, Article 29 of the Constitution permitted such a measure for a maximum of three days only as a response to an urgent need to prevent or stop a crime ( see paragraph 94 above). Under Article 208 of the CCP, an investigator could arrest a person, in particular if the latter had been caught in flagrante delicto, had been pointed out as an offender by eyewitnesses or victims, or had clear traces of a crime on his person or clothing immediately after the offence ( see paragraph 96 above). 147. The respondent Government has not demonstrated that any of those conditions were met in the applicant ’ s case, and the investigator had no power to arrest him without a court decision. 148. Indeed, as pointed out by the applicant, on 31 October 2015 he was arrested in connection with events which had taken place more a year earlier. It could not therefore be claimed that the authorities faced an urgent situation. 149. As regards the applicant ’ s re-arrest on 3 November 2015, the Court notes that it took place within minutes of his formal release. The Court observes that the authorities relied formally on a charge different from those that had served as a basis for the previous arrest order ( see paragraph 24 above). Nonetheless, it was clear from the text of the investigator ’ s subsequent application to the court for the applicant ’ s remand in custody ( see paragraph 27 above) that, in reality, the prosecution were relying on the same charges against the applicant as before, and that only one new charge had been added (the applicant ’ s supposed interference with the work of an electoral officer – see paragraph 23 above). Like all the other charges, that new charge had been known to the prosecution authorities prior to the applicant ’ s arrest on 31 October 2015. However, like before, the general requirement of a judicial arrest warrant was disregarded. Accordingly, the applicant ’ s re-arrest on 3 November 2015 was manifestly deficient under domestic law. 150. The situation described above makes it clear for the Court that the authorities acted in bad faith, seeking a pretext to secure the applicant ’ s continued detention and to circumvent the effect of the court order for his release. Such conduct is incompatible with the principle of legal certainty and arbitrary, and runs counter to the principle of the rule of law (see, mutatis mutandis, Mikhaniv, cited above, §§ 87-88). 151. In the light of the foregoing, the Court concludes that there has been a violation of Article 5 § 1 of the Convention in respect of the applicant ’ s arrest on 31 October 2015 and his re-arrest on 3 November 2015. 2. Alleged violation of Article 5 § 3 of the Convention (a) The parties ’ submissions 152. The applicant complained that he had been held in pre-trial detention and under house arrest without relevant and sufficient reasons. 153. The Government contended that both impugned measures had been duly justified. They observed that eventually the applicant had been released subject to an undertaking not to abscond. (b) The Court ’ s assessment (i) General case-law principles 154. In accordance with the Court ’ s established case-law under Article 5 § 3, the persistence of a reasonable suspicion is a condition sine qua non for the validity of 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. 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 ( see Buzadji, cited above, § 87). 155. 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 such grounds 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 ( see Buzadji, cited above, § 88). Those risks must be duly substantiated, and the authorities ’ reasoning on those points cannot be abstract, general or stereotyped (see, among other authorities, Merabishvili v. Georgia [GC], no. 72508/13, § 222, 28 November 2017). 156. It is essentially on the basis of the reasons set out in the decisions of the national judicial authorities relating to the applicant ’ s pre-trial detention and of the arguments made by the applicant in his requests for release or appeals that the Court is called upon to decide whether or not there has been a violation of Article 5 § 3 of the Convention ( see Merabishvili, cited above, § 225, with further references). 157. The Court applies the same criteria in assessing the reasonableness of the entire period of deprivation of liberty, irrespective of the place where the applicant was detained (in a pre-trial detention facility or at home under house arrest). In the Court ’ s view, it would hardly be workable in practice were one to assess the justifications for pre-trial detention according to different criteria depending on differences in the conditions of detention and the level of (dis)comfort experienced by the detainee. Such justifications should, on the contrary, be assessed according to criteria that are practical and effective in maintaining an adequate level of protection under Article 5 without running a risk of diluting that protection ( see Buzadji, cited above, §§ 112-14). (ii) Application of the above principles in the present case (α) Overall period to be taken into consideration 158. The period of deprivation of liberty to be taken into consideration in the present case started on 31 October 2015, the date of the applicant ’ s arrest, and ended on 7 June 2016, when he was released subject to an undertaking not to abscond ( see paragraphs 17, 24, 54 and 139 above). Accordingly, it lasted for seven months and seven days. For two months and twenty-two days of that period, the applicant was under arrest and in pre-trial detention, whereas for the remaining four and a half months he was under house arrest ( see paragraphs 17, 30, 38, 50 and 54 above). (β) Relevance and sufficiency of reasons for the applicant ’ s continued deprivation of liberty - Continued arrest until 6 November 2015 159. The Court reiterates that it has found the applicant ’ s arrest on 31 October 2015 and his re-arrest on 3 November 2015, which formed the legal basis for his deprivation of liberty until 6 November 2015, to be in breach of Article 5 § 1 of the Convention ( see paragraph 151 above). More specifically, the Court has concluded that the domestic authorities, firstly, did not adhere to the “procedure prescribed by law” and, secondly, manifested bad faith. The issue whether there was a “reasonable suspicion” that the applicant had committed a criminal offence was not among those analysed by the Court in the context of the complaint under Article 5 § 1. 160. While, having regard to the incriminating material against the applicant, the Court accepts that there was a reasonable suspicion of his having committed a criminal offence, it reiterates that under Article 5 § 3 of the Convention, the existence of reasonable suspicion cannot on its own justify pre-trial detention, and must be supported by additional grounds ( see Buzadji, cited above, § 95, and Štvrtecký v. Slovakia, no. 55844/12, § 59, 5 June 2018). 161. The Court will therefore examine whether such additional grounds were given by the domestic authorities to justify the applicant ’ s continued deprivation of liberty during the period in question. 162. It is noteworthy that, like the initial arrest report, the report on the applicant ’ s re-arrest of 3 November 2015 contained no reference to any specific circumstances warranting his deprivation of liberty ( see paragraph 24 above). The grounds referred to by the investigators were confined to those pre-printed on the arrest report template. 163. The Court therefore concludes that no relevant and sufficient reasons were provided in justification of the applicant ’ s continued arrest until 6 November 2015. - House arrest from 6 November to 28 December 2015 164. It would appear from the reasoning given in the decision of 6 November 2015 that the investigating judge of the Pecherskyy Court took into account a number of considerations indicating that the applicant ’ s pre ‑ trial detention would be an unjustified and excessive preventive measure. Namely, it was observed in the ruling that the applicant had a permanent place of residence, elderly parents and three minor children, that he was the leader of a political party, that he had received numerous awards, including a presidential one, and that he had positive character references. Furthermore, the judge noted that numerous members of parliament had offered their personal surety as a guarantee that the applicant would comply with his procedural obligations ( see paragraph 30 above). 165. The court ruling of 6 November 2015 contained no explanation, however, of how the above-mentioned circumstances, which were clearly favourable for the applicant, could be interpreted as justifying placing him under house arrest. Although the investigating judge mentioned the personal surety given by members of parliament, without questioning its authenticity or expressing any reservations in that regard, she gave no consideration to applying a personal warranty as a possible preventive measure. Nor did she consider the possibility of ensuring the applicant ’ s attendance in court by the use of other less intrusive preventive measures expressly provided for in Ukrainian law to ensure the proper conduct of criminal proceedings, such as a personal undertaking or release on bail ( see paragraph 96 above). 166. The Court observes that the appellate court maintained the same approach, de facto equating the absence of any grounds for the applicant ’ s pre-trial detention to the justification for placing him under house arrest ( see paragraph 34 above). 167. It follows that the applicant ’ s deprivation of liberty during this period was not based on relevant and sufficient reasons. - Pre-trial detention from 28 December 2015 to 15 March 2016 168. The Court notes that the investigating judge of the Dniprovskyy Court justified the replacement of the applicant ’ s house arrest by pre-trial detention on 28 December 2015, having mainly reiterated the factors referred to by the investigator: the existence of a reasonable suspicion of the applicant ’ s involvement in a number of criminal offences; the gravity of those offences; and the applicant ’ s friendly relations with officials of law ‑ enforcement, judicial and other authorities. Furthermore, the judge found it established that the applicant had not complied with the obligations inherent in house arrest ( see paragraphs 38 and 40 above). 169. Given that the reference to a reasonable suspicion was not sufficient in itself, the Court will give closer consideration to the other grounds used to justify the applicant ’ s detention. 170. The Court considers neither relevant nor sufficient the investigating judge ’ s reference to the applicant ’ s “friendly relations with officials of law ‑ enforcement, judicial and other authorities”. Couched in broad terms as it was, it implied questioning the integrity of those unspecified officials rather than substantiating any risks inherent in the applicant ’ s release or the application of a less restrictive preventive measure than pre-trial detention. 171. The Court next observes that the judge accepted, without further reasoning, the investigator ’ s argument that the applicant had not fulfilled his house-arrest obligations ( see paragraph 40 above). 172. To substantiate that conclusion, the investigator referred, in particular, to the applicant ’ s “continuously staying in private medical institutions” including the one founded by his father, as an indication that he had been “abusing his right to medical assistance” with a view to evading “various procedural measures”. It is noteworthy, however, that on 25 December 2015, the date on which the investigator applied to the court for the applicant ’ s pre-trial detention, the latter underwent a coronary angioplasty in the Amosov Institute ( see paragraph 62 above). This proved that the applicant did require serious medical attention. Even if that operation had not taken place, alleging that the applicant had been “abusing his right to medical assistance” cannot be accepted as a relevant reason to justify placing him in pre-trial detention. The authorities had ample opportunity to have the applicant examined by medical specialists whose independence they did not question (and they eventually did so by having him taken to the Amosov Institute). 173. The investigator also referred to the fact that there had been thirty ‑ eight alerts from the applicant ’ s electronic tracking device, from which he concluded that the applicant might have tampered with it. That conclusion clearly ran counter to the documents the prosecution had in its possession. Thus, about two weeks earlier the police had informed the prosecutor ’ s office about those alerts and had stated that most of them could be explained by “the technical imperfection of the device, the architectural particularities of the building, as well as the presence of a lift in the suspect ’ s flat”. On two occasions the alerts were explained by the fact that the applicant ’ had been transferred to the court for participation in court hearings and on one occasion, by the fact that he had been admitted to hospital ( see paragraph 36 above). 174. Lastly, the investigator noted that the applicant, “through his lawyers”, had been threatening one of the witnesses to make him change his depositions in the applicant ’ s favour ( see paragraph 37 above). It was not explained how replacing the applicant ’ s house arrest by pre-trial detention was supposed to put an end to such misbehaviour on the part of his lawyers with whom he would retain contact even in detention. 175. Accordingly, no relevant and sufficient reasons were provided for remanding the applicant in custody on 28 December 2015. 176. The Court does not accept, either, the stereotyped and abstract reasons invoked by the Kyiv City Court of Appeal in its ruling of 10 February 2016 upholding the decision to detain the applicant ’ and by the Dniprovskyy Court in its decision of 17 February 2016 extending that preventive measure. Those courts mainly referred to the gravity of the charges against the applicant and the persistence of the risks already established. - House arrest from 15 March to 7 June 2016 177. The Court takes note of the fact that it was the applicant himself who had asked that his pre-trial detention be replaced with house arrest ( see paragraph 50 above). This cannot, however, be interpreted as a waiver of his rights under Article 5 of the Convention (see, mutatis mutandis, Buzadji, cited above, §§ 106-10). 178. The Court has held in its case-law that the right to liberty is too important in a democratic society for a person to lose the benefit of the protection of the Convention simply because he gave himself up to be taken into detention ( see Storck v. Germany, no. 61603/00, § 75, ECHR 2005 ‑ V). It appears clearly from the facts of the case that the idea behind the applicant ’ s seeking to be placed in house arrest was to avoid the continuation of his detention in custody (compare Buzadji, cited above, § 108). 179. Although house arrest implied fewer restrictions and a lesser degree of suffering and inconvenience for the applicant than ordinary detention in prison, it still amounted to a deprivation of his liberty in the meaning of Article 5 of the Convention ( see paragraph 139 above). Accordingly, regardless of the applicant ’ s attitude to that measure, the domestic authorities were under an obligation either to provide due grounds for it or to release him. This was not done: the Dniprovskyy Court did not explain why there was a need for such an intrusive preventive measure in the applicant ’ s case. (γ) Conclusion 180. The Court is aware of the fact that a majority of length-of-detention cases that have come before it concerned longer periods of deprivation of liberty and, against that background, seven months and seven days ( see paragraph 158 above) may appear to be relatively short (compare Zherebin v. Russia, no. 51445/09, § 61, 24 March 2016). Nonetheless, the Court has found a violation of Article 5 § 3 of the Convention on many occasions even in respect of such short periods of detention where those were not justified (the Court ’ s abundant case-law of relevance is quoted in Zherebin, cited above, ibid.). 181. Having regard to the absence of relevant and sufficient reasons for the applicant ’ s deprivation of liberty in the present case, be it in the form of pre-trial detention or house arrest, the Court concludes that there has been a violation of Article 5 § 3 of the Convention. 3. Alleged violation of Article 5 § 4 of the Convention (a) The parties ’ submissions 182. The applicant submitted that there had been no judicial review of the lawfulness of his arrest of 31 October 2015. As regards the lawfulness of his re-arrest of 3 November 2015, he maintained that the Pecherskyy Court had assessed it in a formalistic and superficial manner, without addressing any of his arguments. 183. The Government submitted that the applicant had failed to challenge the lawfulness of his arrest of 31 October 2015 before the appropriate court. They further contended that by the ruling of 6 November 2015, the investigating judge of the Pecherskyy Court had provided an effective judicial review of the lawfulness of the applicant ’ s re-arrest on 3 November 2015. (b) The Court ’ s assessment (i) General case-law principles 184. The Court reiterates that the purpose of Article 5 § 4 is to assure to persons who are arrested and detained the right to judicial supervision of the lawfulness of the measure to which they are thereby subjected (see, mutatis mutandis, De Wilde, Ooms and Versyp v. Belgium, 18 June 1971, § 76, Series A no. 12, and Ismoilov and Others v. Russia, no. 2947/06, § 145, 24 April 2008). A remedy must be made available during a person ’ s detention to allow that person to obtain a speedy judicial review of the lawfulness of the detention, capable of leading, where appropriate, to his or her release. 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 Nechiporuk and Yonkalo v. Ukraine, no. 42310/04, § 239, 21 April 2011). The question whether a person ’ s right under Article 5 § 4 has been respected has to be determined in the light of the circumstances of each case ( see Rehbock v. Slovenia, no. 29462/95, § 84, ECHR 2000 ‑ XII). (ii) Application of the above principles in the present case 185. The Court takes notes from the outset of the formal decision on the applicant ’ s release of 3 November 2015 ( see paragraph 24 above). 186. According to the Court ’ s case-law, Article 5 § 4 of the Convention is no longer applicable to any attempts to get a judicial review of the lawfulness of one ’ s deprivation of liberty after release (see, mutatis mutandis, Slyusar v. Ukraine, no. 34361/06, § 13, 8 March 2012, and the reference therein to Reinprecht v. Austria, no. 67175/01, § 51, ECHR 2005 ‑ XII). 187. In other words, Article 5 § 4 of the Convention provides a preventive remedy in respect of unlawful deprivation of liberty. As regards proceedings for a judicial review of the lawfulness of a person ’ s detention after his or her release, all they can achieve is an ex post facto judicial declaration that the detention had been unlawful. At that point, the preventive remedy under Article 5 § 4 ceases to apply and a compensatory remedy enshrined in Article 5 § 5 of the Convention comes into play (see, mutatis mutandis, Lelyuk v. Ukraine, no. 24037/08, § 35, 17 November 2016). 188. The Court has consistently held in its case-law that it must look behind appearances and investigate the realities of the situation complained of (for the application of this principle in the context of Article 5 of the Convention, see Farhad Aliyev v. Azerbaijan, no. 37138/06, § 163, 9 November 2010). 189. In the present case the reality was that the applicant was not released in spite of the court order of 3 November 2015 to that effect ( see paragraph 24 above). Given that the investigator continued to refer to the same grounds as before ( see paragraph 27 above), it meant in practice that the applicant could seek a judicial review of the lawfulness of his deprivation of liberty in the meaning of Article 5 § 4 of the Convention only within the remand proceedings of 6 November 2015, which he did ( see paragraphs 26 and 30 above). As to the question whether or not he should have lodged a separate complaint concerning the lawfulness of his initial arrest, the Court will analyse it from the standpoint of Article 5 § 5 of the Convention ( see paragraph 187 above). 190. Accordingly, the only remaining issue raised by the applicant under Article 5 § 4 of the Convention is the alleged failure of the Pecherskyy Court to give sufficient and relevant reasons in its ruling of 6 November 2015 ( see paragraph 182 above). However, the Court has already examined that issue under Article 5 § 3 of the Convention ( see paragraphs 164, 165, 167 and 181 above). It does not therefore seem necessary to deal with the same point under Article 5 § 4 of the Convention as well ( see Merabishvili, cited above, § 240). 191. The Court therefore concludes that, under the circumstances, there is no need to examine the applicant ’ s complaint under Article 5 § 4 of the Convention. 4. Alleged violation of Article 5 § 5 of the Convention (a) The parties ’ submissions 192. The applicant contended that he had not had an enforceable right to compensation in respect of the alleged breaches of Article 5. 193. The Government contested that submission. They observed that on 11 September 2017 the criminal proceedings against the applicant had been discontinued for want of evidence of his guilt. In the Government ’ s opinion, that provided sufficient grounds for him to claim compensation under Article 1176 of the Civil Code or section 1 of the Compensation Act ( see paragraphs 99 and 100 above), which he had failed to do. (b) The Court ’ s assessment 194. The Court reiterates that Article 5 § 5 is deemed to have been complied with where it is possible to apply for compensation in respect of a deprivation of liberty effected in conditions contrary to paragraphs 1, 2, 3 or 4. The right to compensation set forth in paragraph 5 therefore presupposes that a violation of one of the other paragraphs has been established, either by a domestic authority or by the Court. In this connection, the effective enjoyment of the right to compensation guaranteed by Article 5 § 5 must be ensured with a sufficient degree of certainty ( see Stanev v. Bulgaria [GC], no. 36760/06, § 182, ECHR 2012). 195. Turning to the present case, the Court notes that Ukrainian legislation provided anyone who became a victim of unlawful criminal prosecution and/or detention with the possibility to claim compensation. The applicable legal provisions specified that the right to such compensation arose when there was a judicial finding of unlawfulness, in particular, of detention, or when the criminal proceedings against the person had been terminated for lack of proof of his/her guilt ( see paragraphs 99 and 100 above). 196. As pointed out by the Government, the criminal proceedings against the applicant were discontinued on 11 September 2017 for lack of proof of his guilt ( see paragraphs 58 and 193 above). However, the grounds for depriving him of his liberty, which he considered to be in breach of Article 5 §§ 1, 3 and 4 of the Convention, had not been confined to the charges against him within the above-mentioned proceedings. They also included the charge of R. ’ s kidnapping, in respect of which the applicant was eventually convicted (see, in particular, paragraph 51 above). Furthermore, the Government suggested that, as of April 2018, there remained some outstanding charges against the applicant ( see paragraph 59 above). Although, based on the facts of the case, it is unclear what those charges could be, this implied that there was another obstacle preventing the applicant from claiming compensation solely relying on the PGO ’ s ruling of 11 September 2017 discontinuing the criminal proceedings against him. 197. It cannot therefore be said that the applicant ’ s effective enjoyment of the right to compensation was ensured with a sufficient degree of certainty, as required by Article 5 § 5 of the Convention ( see paragraph 194 above). 198. The Court also notes that the Government reproached the applicant for not having pursued his complaint concerning the lawfulness of his initial arrest of 31 October 2015, and the Court decided to deal with that issue under Article 5 § 5 ( see paragraphs 183 and 189 above). Having regard to the nature and scope of the alleged breaches of the applicant ’ s rights under Article 5 §§ 1, 3 and 4 of the Convention, the Court does not consider that by challenging the lawfulness of his arrest of 31 October 2015, that being one grievance among many others, the applicant could have changed the state of affairs described above. 199. In sum, there was no finding by the domestic authorities of a violation of one of the other paragraphs of Article 5 of the Convention to enable the applicant to claim compensation under paragraph 5. Nor are there any reasons to hold the absence of such a finding against the applicant. 200. However, in the present judgment the Court has found violations of Article 5 §§ 1 and 3 ( see paragraphs 151 and 181 above). It follows that Article 5 § 5 of the Convention is applicable. The Court must therefore establish whether Ukrainian law afforded, or now affords, the applicant an enforceable right to compensation on the basis of the findings of violations of Article 5 by this Court. 201. The Court has examined this issue in numerous other Ukrainian cases. It has found that a right to compensation under Article 5 § 5 of the Convention is not ensured in the domestic legal system when the Court establishes a violation of any of the preceding paragraphs of that Article and when there was no domestic judicial decision establishing the unlawfulness of the detention (see, for example, Nechiporuk and Yonkalo, cited above, §§ 233-34; Taran v. Ukraine, no. 31898/06, §§ 89-90, 17 October 2013; and Sinkova v. Ukraine, no. 39496/11, §§ 82-84, 27 February 2018). The Court finds no reason to reach a different conclusion in the present case. 202. It follows that there has been a violation of Article 5 § 5 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 18 OF THE CONVENTION IN CONJUNCTION WITH ARTICLE 5 203. The applicant complained that the deprivation of his liberty had been ordered for ulterior motives, in particular political motives. He relied on Article 18 of the Convention taken in conjunction with Article 5, which provides as follows: “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. Admissibility 204. The Court observes that the crux of the applicant ’ s complaint under this head, namely that his criminal prosecution and detention had been ordered for ulterior motives, has not been examined under Article 5 of the Convention. The Court therefore considers that Article 18 of the Convention in conjunction with Article 5 is applicable (for the general principles on the interpretation and application of Article 18 of the Convention, see Merabishvili, cited above, §§ 287-91). 205. The Court also notes that 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 therefore be declared admissible. B. Merits 1. The parties ’ submissions 206. The applicant alleged that the real reasons for his criminal prosecution had been as follows. Firstly, he referred to a conflict between the then head of the Dnipropetrovsk Regional State Administration (in whose team the applicant had been working at the time – see paragraph 7 above) and the President of Ukraine, which had led to the former ’ s resignation in March 2015. Secondly, the applicant had been the main rival of the candidate from the President ’ s party, who was also a close friend of the President, in the mid-term parliamentary elections in Chernigiv ( see paragraph 10 above). The applicant had uncovered various violations by the above-mentioned candidate, such as the bribing of voters, abuse of administrative resources and vote rigging. The applicant therefore alleged that it was that candidate who had initiated the applicant ’ s criminal prosecution. Another reason, in the applicant ’ s opinion, was his sharp criticism of those in power in general and President Poroshenko in particular. In addition, the applicant ’ s party had had a high score in the local elections. He submitted that the purpose of depriving him of his liberty and subjecting him to criminal prosecution was to prevent him from engaging in political activity and to discredit his political party. 207. In support of his submissions, the applicant referred to various statements made to the press, which showed that his criminal prosecution had been ordered for political reasons ( see paragraphs 88-93 above). 208. The Government argued that the applicant ’ s allegations lacked any substantiation. In particular, his participation in the local and the mid-term parliamentary elections had in no way been impeded. The applicant had himself been one of “those in power” up until the end of March 2015 and had not been in opposition. Nor had he enjoyed, in the Government ’ s opinion, any strong public support. Lastly, they submitted that it was open to anybody to criticise the President of Ukraine or his team without any fear of criminal prosecution and that the applicant had not provided any evidence to the contrary. 2. The Court ’ s assessment (a) General case-law principles 209. The Court reiterates that Article 18 of the Convention does not serve merely to clarify the scope of the restriction clauses (such as, for example, the second sentence of Article 5 § 1 and the second paragraphs of Articles 8 to 11, which permit restrictions to those rights and freedoms). It also expressly prohibits the High Contracting Parties from restricting the rights and freedoms enshrined in the Convention for purposes not prescribed by the Convention itself, and to this extent it is autonomous ( see Merabishvili, cited above, § § 287-88). 210. A right or freedom is sometimes restricted solely for a purpose which is not prescribed by the Convention. But it is equally possible that a restriction is applied both for an ulterior purpose and a purpose prescribed by the Convention; in other words, that it pursues a plurality of purposes. The question in such situations is whether the prescribed purpose invariably expunges the ulterior one, whether the mere presence of an ulterior purpose contravenes Article 18, or whether there is some intermediary answer (ibid., § 292). 211. There is a considerable difference between cases in which the prescribed purpose was the one that truly actuated the authorities, though they also wanted to gain some other advantage, and cases in which the prescribed purpose, while present, was in reality simply a cover enabling the authorities to attain an extraneous purpose, which was the overriding focus of their efforts. Holding that the presence of any other purpose by itself contravenes Article 18 would not do justice to that fundamental difference, and would be inconsistent with the object and purpose of Article 18, which is to prohibit the misuse of power. Indeed, it could mean that each time the Court excludes an aim or a ground pleaded by the Government under a substantive provision of the Convention, it must find a breach of Article 18, because the Government ’ s pleadings would be proof that the authorities pursued not only the purpose that the Court accepted as legitimate, but also another one (ibid., § 303). 212. For the same reason, a finding that the restriction pursues a purpose prescribed by the Convention does not necessarily rule out a breach of Article 18 either. Indeed, holding otherwise would strip that provision of its autonomous character (ibid., § 304). 213. The Court is therefore of the view that a restriction can be compatible with the substantive Convention provision which authorises it because it pursues an aim permissible under that provision, but still infringe Article 18 because it was chiefly meant for another purpose that is not prescribed by the Convention; in other words, if that other purpose was predominant. Conversely, if the prescribed purpose was the main one, the restriction does not run counter to Article 18 even if it also pursues another purpose (ibid., § 305). 214. Which purpose is predominant in a given case depends on all the circumstances. In assessing that point, the Court will have regard to the nature and degree of reprehensibility of the alleged ulterior purpose, and bear in mind that the Convention was designed to maintain and promote the ideals and values of a democratic society governed by the rule of law. In continuing situations, it cannot be excluded that the assessment of which purpose was predominant may vary over time (ibid., §§ 307-08). 215. The Court applies its usual approach to proof when dealing with complaints under Article 18 of the Convention (ibid., 310). The first aspect of that approach is that, as a general rule, the burden of proof is not borne by one or the other party because the Court examines all material before it irrespective of its origin, and because it can, if necessary, obtain material of its own motion. The second aspect of the Court ’ s approach is that the standard of proof before it is “beyond reasonable doubt”. That standard, however, is not co-extensive with that of the national legal systems which employ it. First, such proof can follow from the coexistence of sufficiently strong, clear and concordant inferences or similar unrebutted presumptions of fact. Secondly, the level of persuasion required to reach a conclusion is intrinsically linked to the specificity of the facts, the nature of the allegation made, and the Convention right at stake. The third aspect of the Court ’ s approach is that the Court is free to assess not only the admissibility and relevance but also the probative value of each item of evidence before it. There is no reason for the Court to restrict itself to direct proof in relation to complaints under Article 18 of the Convention or to apply a special standard of proof to such allegations. Circumstantial evidence in this context means information about the primary facts, or contextual facts or sequences of events which can form the basis for inferences about the primary facts. Reports or statements by international observers, non-governmental organisations or the media, or the decisions of other national or international courts, are often taken into account to, in particular, shed light on the facts, or to corroborate findings made by the Court (ibid., §§ 311 and 314-17). (b) Application of the above principles in the present case 216. In the present case, the Court has accepted that the applicant was arrested on “reasonable suspicion” of having committed a criminal offence ( see paragraph 160 above). In other words, even though the Court has found a number of violations of Article 5 of the Convention ( see paragraphs 151, 181 and 202 above), it can still be stated that the applicant was deprived of his liberty for a purpose prescribed by Article 5 § 1 (c) of the Convention. 217. In analysing the applicant ’ s complaint under Article 18 of the Convention, the Court must first of all examine whether the restriction in question additionally pursued any other purpose which was not prescribed by Article 5 § 1. Even in the event of an affirmative answer to that question, there will only be a breach of Article 18 if that other purpose was predominant. 218. The Court accepts that the timing of the applicant ’ s initial arrest and the manner in which it was carried out could be interpreted as possible indices of an ulterior purpose. The Court observes, in particular, that the institution of criminal proceedings against the applicant on 15 August 2014, immediately after R. had complained to the police of his kidnapping by the applicant, apparently caused no immediate inconvenience to the applicant. Moreover, on 15 September 2014 the President of Ukraine awarded him an Order for Courage “for his commitment, active civic stance and high professionalism in carrying out his official duties” ( see paragraph 8 above). Subsequently, on 25 February, 7 August and 1 October 2015 further sets of criminal proceedings were instituted against the applicant ( see paragraphs 14 - 16 above). However, it was only on 31 October 2015 that the investigating authorities notified the applicant of their suspicions in that respect and arrested him ( see paragraph 17 above). His arrest took place with the involvement of a special forces unit, which broke through the entrance door to the applicant ’ s flat ( see paragraph 18 above). All of a sudden, without any apparent reason, the applicant ’ s arrest and criminal prosecution became a matter of particular urgency and zeal for the prosecuting authorities. In the absence of any convincing explanations from the authorities, it was broadly perceived by political parties, mass media and civil society as selective justice ( see paragraphs 88 - 93 above). 219. While bearing that in mind, the Court will turn now to the specific arguments raised by the applicant in support of his complaint. 220. The Court notes that the applicant linked his criminal prosecution and deprivation of liberty, in particular, with the alleged conflict between the then Head of the Dnipropetrovsk Regional State Administration and the President of Ukraine, which had led to the former ’ s resignation in March 2015 ( see paragraphs 7 and 206 above). In the absence of complaints of political persecution raised by the above-mentioned official or any member of his political team other than the applicant, the Court does not find this argument convincing. 221. Nor is the Court convinced by the applicant ’ s allegation that the real impetus for his criminal prosecution might have stemmed from his rivalry with the candidate from the President ’ s party during the mid-term parliamentary elections in Chernigiv of 26 July 2015 ( see paragraphs 10 and 206 above). The applicant suggested that the whole legal machinery had been misused at the whim of a friend and political ally of the President. The Court does not discern any evidence in the case-file materials in support of such a serious allegation. Furthermore, it appears unlikely that the candidate, who had won the elections with 35.90% of the vote, would post factum seek to take revenge on the applicant, who had obtained less than half of that percentage (14.76%). The Court also finds it relevant to note that although the applicant suggested that the election results had been rigged and were unfair ( see paragraph 206 above), he has not lodged a complaint under Article 3 of Protocol No. 1 (right to free elections). 222. In so far as the applicant claimed that he had been sharply criticising the President of Ukraine and those in power, the Court accepts the Government ’ s observation that he was obviously not the only one to do so. The Court has no information, however, of any attempts to stifle voices critical of the then President of Ukraine or the Government. The plurality of publicly expressed opinions in Ukraine concerning the applicant ’ s criminal prosecution itself is rather an indication to the contrary: that anybody was free to criticise the President in particular and the authorities in general. 223. In the absence of any evidence to the contrary, the Court is also sceptical of the alleged link between the deprivation of the applicant ’ s liberty and the success of his party in the local elections. It should be noted that the criminal proceedings against the applicant were instituted about a year prior to the creation of the UKROP party. Furthermore, apart from the “Bloc of Petro Poroshenko”, which won the election, two other parties, “Batkivshchyna” and “Opposition Bloc”, had better results than UKROP ( see paragraph 11 above) but did not allege that they had been persecuted. 224. In the light of all the foregoing, the Court considers that the allegations the applicant has raised in the context of his complaint under Article 18 of the Convention are not sufficiently proven. Even if there might have been some ulterior motives for prosecuting the applicant and depriving him of his liberty, the Court is unable to identify them on the basis of the applicant ’ s submissions, let alone find that those ulterior motives were predominant. 225. That being so, the Court finds that there has been no violation of Article 18 of the Convention. IV. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE CONVENTION 226. The applicant complained of a violation of his right to the presumption of innocence under Article 6 § 2 of the Convention, which reads as follows: “2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.” A. Admissibility 227. The Court declares this complaint admissible given that it is neither manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other grounds. B. Merits 228. The applicant complained that high-ranking public officials had asserted his guilt in the absence of his conviction by a court, thus influencing public opinion and prejudging the case against him. 229. The Government argued that the authorities had been merely informing society of progress in a high-profile criminal case. 230. The Court reiterates the well-established principle of its case-law that Article 6 § 2 of the Convention bars officials from declaring a person guilty before that person ’ s conviction by a court. Officials may tell the public about criminal investigations by, for example, reporting suspicions, arrests, and confessions, if they do so discreetly and circumspectly. The choice of words used by them matters ( see Turyev v. Russia, no. 20758/04, § 19, 11 October 2016, with further references). 231. Turning to the present case, the Court observes that the impugned remarks were not made in the framework of the criminal proceedings themselves but as part of press statements intended for the public. The Court takes note of the Government ’ s submission that the purpose of the impugned statements was to inform the public about a high-profile criminal case. Indeed, given that the applicant was a politician, the authorities might have considered it necessary to keep the public informed of the criminal accusations against him (compare Ilgar Mammadov v. Azerbaijan, no. 15172/13, § 127, 22 May 2014). However, the Court considers that the statements made by high-ranking officials to the mass media in respect of the criminal proceedings against the applicant were far from discreet or circumspect. His identity was known to the public and he was labelled as a leader of a criminal organisation involved in a number of serious criminal offences ( see paragraphs 82-87 above). As such, those statements could not but have encouraged the public to believe the applicant guilty before he had been proved guilty according to the law. 232. The Court therefore concludes that there has been a violation of Article 6 § 2 of the Convention. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 233. 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.” 234. The applicant did not submit a claim for just satisfaction. 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 5 § 1 of the Convention in respect of the applicant’s arrest and re-arrest. It also found a violation of Article 5 § 3 due to the absence of relevant and sufficient reasons for the applicant’s deprivation of liberty, and a violation of Article 5 § 5, finding that the applicant’s effective enjoyment of the right to compensation had not been ensured with a sufficient degree of certainty. The Court held, however, that there had been no violation of Article 18 of the Convention in the applicant’s case, finding that the allegations he had raised had not been sufficiently proven. Even if there might have been some ulterior motives for prosecuting the applicant and depriving him of his liberty, the Court was unable to identify them on the basis of the applicant’s submissions, let alone find that those ulterior motives were predominant. |
283 | Prevention of terrorism | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Arrest and detention under the Terrorism Act 2000 90. The 2000 Act allows for the arrest and detention without charge of suspected terrorists for a maximum of twenty-eight days. The relevant provisions are set out in more detail below. 1. Power of arrest 91. Section 41(1) of the 2000 Act allows a constable to arrest without a warrant a person whom he reasonably suspects to be a terrorist. The 2000 Act defines a terrorist as either someone who has committed an offence under certain sections of the Act (section 40(1)(a)), or someone who “is or has been concerned in the commission, preparation or instigation of acts of terrorism” (section 40(1)(b)). 92. Terrorism itself is defined in section 1 of the Act in these terms: “(1) ... the use or threat of action where– (a) the action falls within subsection (2), (b) the use or threat is designed to influence the government or an international governmental organisation or to intimidate the public or a section of the public, and (c) the use or threat is made for the purpose of advancing a political, religious, racial or ideological cause.” 93. Section 1(2) covers action which: “(a) involves serious violence against a person, (b) involves serious damage to property, (c) endangers a person’s life, other than that of the person committing the action, (d) creates a serious risk to the health or safety of the public or a section of the public, or (e) is designed seriously to interfere with or seriously to disrupt an electronic system.” 94. Pursuant to section 1(3), the use or threat of action which involves the use of firearms or explosives is terrorism, whether or not section 1(1)(b) is satisfied. 95. Section 41(3) stipulates, in so far as relevant to the present case, that a person detained under section 41 shall, subject to the other provisions of the section and unless detained under any other power, be released not later than a period of forty-eight hours beginning with the time of his arrest under that section. 2. Periodic review 96. Schedule 8, Part II, of the 2000 Act sets out detailed provisions governing the detention of any person arrested under the Act. 97. Pursuant to paragraph 21, a person’s detention should be periodically reviewed by a review officer. The first review should be carried out as soon as reasonably practicable after the time of the person’s arrest. Subsequent reviews must, except in specific limited cases, be carried out at intervals of not more than twelve hours. No review of a person’s detention should be carried out after a warrant extending his detention has been issued by a court (see paragraph 100 below). 98. Paragraph 23 entitles a review officer to authorise a person’s continued detention only if satisfied that it is necessary (a) to obtain relevant evidence whether by questioning him or otherwise; (b) to preserve relevant evidence; or (c) pending the result of an examination or analysis of any relevant evidence. Continued detention cannot be authorised under (a) or (b) unless the review officer is satisfied that the investigation is being conducted diligently and expeditiously. “Relevant evidence” is evidence that relates to the commission by the detained person of an offence set out in the 2000 Act or indicates that the detained person has been concerned in the commission, preparation or instigation of acts of terrorism. 99. Pursuant to paragraph 26, before determining whether to authorise a person’s continued detention, a review officer must give the detained person or his solicitor an opportunity to make oral or written representations about the detention. 3. Warrants of further detention issued by a judicial authority 100. Paragraph 29 of Schedule 8 entitles a Crown Prosecutor or senior police officer to apply to a court for the issue of a warrant of further detention. Under paragraph 36, where the application is to extend the detention up to a maximum of fourteen days from the date of arrest, it can be made to a District Judge. Applications for further detention beyond fourteen days must be put before a High Court judge, who may authorise detention up to a maximum of twenty-eight days in total from the date of arrest. Section 41(7) of the 2000 Act provides that where an application under paragraph 29 or 36 of Schedule 8 is granted in respect of a person’s detention, he may be detained during the period specified in the warrant. 101. Pursuant to paragraph 31 of Schedule 8, a detained person must be given notice of the application for a warrant of further detention and the grounds on which further detention is sought. Paragraph 33 allows the detained person an opportunity to make oral or written representations about the application for a warrant of further detention and provides a general entitlement to legal representation at the hearing. Pursuant to paragraph 33(3), the court may exclude the detained person and his solicitor from any part of the hearing. 102. Paragraph 34 provides that the person who has made an application for a warrant may apply for an order that specified information upon which he relies be withheld from the detained person and his solicitor. A court may make such an order only if satisfied that there are reasonable grounds for believing that, if the information were disclosed, evidence would be interfered with or harmed; the apprehension, prosecution or conviction of a suspected terrorist would be made more difficult as a result of his being alerted; the prevention of an act of terrorism would be made more difficult as a result of a person being alerted; the gathering of information about the commission, preparation or instigation of an act of terrorism would be interfered with; or a person would be interfered with or physically injured. 103. Paragraph 32(1) provides that a warrant of further detention may be issued only if there are reasonable grounds for believing that the further detention of the person is necessary and the investigation is being conducted diligently and expeditiously. Pursuant to paragraph 32(1A), the further detention of a person is “necessary” if it is necessary to obtain relevant evidence whether by questioning him or otherwise; to preserve relevant evidence; or pending the result of an examination or analysis of any relevant evidence. “Relevant evidence” is evidence that relates to the commission by the detained person of an offence set out in the 2000 Act or indicates that the detained person has been concerned in the commission, preparation or instigation of acts of terrorism. 104. In Ward v. Police Service of Northern Ireland ([2007] UKHL 50), the House of Lords considered the fairness of the provisions of Schedule 8 in a case where the judge had excluded the appellant and his solicitor from a hearing on an application to extend a warrant of detention for about ten minutes to consider closed information. The appellant sought judicial review of the decision to grant the warrant of further detention and his claim was refused. His appeal to the House of Lords was subsequently dismissed. The Appellate Committee explained at the outset: “11. Section 41 of the Act ... enables a constable to arrest without warrant a person whom he reasonably suspects to be a terrorist. The length of the detention that may follow on such an arrest is the subject of a carefully constructed timetable. This timetable, in its turn, is the subject of a series of carefully constructed procedural safeguards. The detained person’s right to liberty demands that scrupulous attention be paid to those safeguards. ...” 105. After careful consideration of the provisions of the 2000 Act permitting the detained person and his representative to be excluded from part of a hearing, the Committee stated as follows. “27. ... [T]he procedure before the judicial authority which para 33 contemplates has been conceived in the interests of the detained person and not those of the police. It gives the person to whom the application relates the right to make representations and to be represented at the hearing. But it recognises too the sensitive nature of the inquiries that the judicial authority may wish to make to be satisfied, in that person’s best interests, that there are reasonable grounds for believing that the further detention that is being sought is necessary. The more penetrating the examination of this issue becomes, the more sensitive it is likely to be. The longer the period during which an extension is permitted, the more important it is that the grounds for the application are carefully and diligently scrutinised. 28. As in this case, the judicial authority’s need to scrutinise may trespass upon the right of the police to withhold from a suspect the line of questioning they intend to pursue until he is being interviewed. If it does, it will not be to the detained person’s disadvantage for him to be excluded so that the judicial authority may examine that issue more closely to see whether the exacting test for an extension that para 32 lays down is satisfied. The power will not in that event be being used against the detained person but for his benefit. ... 29. There may be cases where there is a risk that the power given to the judicial authority by para 33(3) will operate to the detained person’s disadvantage. Those cases are likely to be rare, but the judicial authority must always be careful not to exercise it in that way. ...” B. Search powers under the 2000 Act 106. Schedule 5 of the 2000 Act sets out powers relating to searches. Paragraph 1 of Schedule 5 allows a constable to apply to a justice of the peace for the issue of a warrant for the purposes of a terrorist investigation authorising any constable to enter premises, search them and seize and retain any relevant material found. Pursuant to paragraph 1(3), material is relevant if the constable has reasonable grounds for believing that it is likely to be of substantial value to a terrorist investigation and it must be seized in order to prevent it from being concealed, lost, damaged, altered or destroyed. 107. Paragraph 1(5) provides that a justice may grant an application if satisfied that the warrant is sought for the purposes of a terrorist investigation; that there are reasonable grounds for believing that there is material on the premises which is likely to be of substantial value, whether by itself or together with other material, to a terrorist investigation; and that the issue of a warrant is likely to be necessary in the circumstances of the case. C. Judicial review 1. Appropriateness of remedy (a) Decisions to arrest and detain 108. In R (Rawlinson & Hunter Trustees and Others) v. Central Criminal Court & Anor [2012] EWHC (Admin) 2254, the claimant had been arrested and sought to challenge by way of judicial review the decision to arrest him. Although there was some discussion of whether judicial review was the appropriate forum, the police accepted that judicial review was the appropriate way to challenge the arrest decision and the Divisional Court agreed. It appears that the claimant had accepted in the proceedings before the court that there was no significant factual dispute between the parties and the claim could be resolved on the basis of the documentary evidence. (b) Decisions to grant search warrants 109. In Bell v. Greater Manchester Police [2005] EWCA Civ 902, the claimant sought to challenge the validity of a search warrant in private law proceedings. He complained that the warrant had been obtained on a misleading basis and that it did not properly identify the material the subject of the search. The Court of Appeal agreed with the first-instance judge that the proper avenue for challenge to the validity of the warrant was by way of proceedings for judicial review. 110. In R (Goode) v. Crown Court at Nottingham [2013] EWHC 1726 (Admin) the Administrative Court said: “51. The issue of a [search] warrant is a judicial act. It would be a novel and surprising development of the law if a court of equal jurisdiction enjoyed the power to declare invalid the judicial act of another ...” 111. The court emphasised that while a seizure of property without judicial authority could be challenged in the Crown Court, a warrant issued with judicial authority could subsequently be quashed or declared unlawful only by the Administrative Court in proceedings for judicial review of the power exercised by the Magistrates Court or the Crown Court. 112. In R (Lees and Others) v. Solihull Magistrates’ Court and Another [2013] EWHC 3779 (Admin), the Divisional Court, citing R (Goode), said that it was clear that the only forum for a challenge to the validity of a search warrant was in judicial review proceedings. 2. Appeal against a refusal to grant permission 113. Rule 52.15 of the Civil Procedure Rules (“CPR”) provides: “(1) Where permission to apply for judicial review has been refused at a hearing in the High Court, the person seeking that permission may apply to the Court of Appeal for permission to appeal.” 114. Section 18(1) of the Senior Courts Act 1981 provides, in so far as relevant: “ No appeal shall lie to the Court of Appeal– (a) ... from any judgment of the High Court in any criminal cause or matter” 115. In Amand v. Home Secretary and Minister of Defence of Royal Netherlands Government [1943] A.C. 147, the House of Lords decided that the refusal of an application for habeas corpus by a person arrested with a view to extradition was a decision in a “criminal cause or matter” (as set out in a predecessor Act). Viscount Simon LC held: “This distinction between cases of habeas corpus in a criminal matter, and cases when the matter is not criminal goes back very far ... It is the nature and character of the proceeding in which habeas corpus is sought which provide the test. If the matter is one the direct outcome of which may be trial of the applicant and his possible punishment for an alleged offence by a court claiming jurisdiction to do so, the matter is criminal.” 116. Lord Wright explained: “The principle which I deduce from the authorities I have cited and the other relevant authorities which I have considered, is that if the cause or matter is one which, if carried to its conclusion, might result in the conviction of the person charged and in a sentence of some punishment such as imprisonment or a fine, it is a ‘criminal cause or matter.’ The person charged is thus put in jeopardy. Every order made in such a cause or matter by an English court, is an order in a criminal cause or matter, even though the order, taken by itself, is neutral in character and might equally have been made in a cause or matter which is not criminal. The order may not involve punishment by the law of this country, but if the effect of the order is to subject by means of the operation of English law the persons charged to the criminal jurisdiction of a foreign country, the order is, in the eyes of English law for the purposes being considered, an order in a criminal cause or matter ...” 117. Finally, Lord Porter held: “... This does not mean that the matter, to be criminal, must be criminal throughout. It is enough if the proceeding in respect of which mandamus was asked is criminal, e.g., the recovery of a poor rate is not of itself a criminal matter, but its enforcement by magistrates by warrant of distress is, and if a case be stated by them as to their right so to enforce it and that the case is determined by the High Court, no appeal lies ... The proceeding from which the appeal is attempted to be taken must be a step in a criminal proceeding, but it need not of itself of necessity end in a criminal trial or punishment. It is enough if it puts the person brought up before the magistrate in jeopardy of a criminal charge ...” 118. In R (Guardian News and Media Ltd) v. City of Westminster Magistrates’ Court [2011] EWCA Civ 1188, a newspaper had unsuccessfully requested access to documents referred to by the Magistrates’ Court in extradition proceedings. The Divisional Court upheld the ruling of the District Judge. The question arose in the Court of Appeal whether the proceedings were a “criminal cause or matter”. The newspaper accepted that the extradition proceedings themselves were a “criminal cause or matter” but submitted that the order refusing journalistic access to the underlying material was not. Lord Neuberger, delivering the judgment of the court, undertook a review of the authorities in the area and considered that the newspaper’s application had been wholly collateral to the extradition proceedings and made by someone not a party to those proceedings. The order of the District Judge did not invoke the Magistrates’ Court’s criminal jurisdiction and had no bearing upon the criminal (i.e. extradition) proceedings themselves. Lord Neuberger expressed the opinion that “any sort of final coherence in relation to the scope and effect of section 18(1)(a) can only be provided by the Supreme Court” and concluded that the best way of applying the “rather tangled” jurisprudence developed over the past thirty-five years, and ensuring maximum coherence, was to hold that the Court of Appeal had jurisdiction to hear the appeal in the case. 119. In its December 2014 judgment in Panesar & Others v HM Revenue and Customs [2014] EWCA Civ 1613 the Court of Appeal considered the meaning of “criminal cause or matter” in a case concerning retention, under section 59 of the Criminal Justice and Police Act 2001, of property seized pursuant to search warrants that were subsequently quashed. The court found that the case concerned a “criminal cause or matter” and concluded that it had no jurisdiction to hear an appeal. The appellants were instead obliged to make their application to the Divisional Court for certification of a point of law of general importance and pursue their appeal to the Supreme Court. Lord Justice Burnett referred to the “ at times inconsistent authority on the meaning of ‘criminal cause or matter’” and acknowledged that the authorities on the meaning of “criminal cause or matter” had “given rise to some uncertainty and, as Lord Neuberger recognised in the Guardian case, some incoherence”. D. The Human Rights Act 1998 120. Section 3(1) of the Human Rights Act 1998 (“the Human Rights Act”) requires legislation to be “read down” so far as possible in order to be interpreted compatibly with the Convention. 121. Section 4 of the Act provides, in so far as relevant: “(1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right. (2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility.” 122. Section 6(1) of the Act provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right. Section 6(2) clarifies that: “Subsection (1) does not apply to an act if– (a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or (b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.” 123. Section 7(1) provides that a person who claims that a public authority has acted in a way made unlawful by section 6(1) may bring proceedings against the authority. 124. Section 8(1) of the Act permits a court to make a damages award in relation to any act of a public authority which the court finds to be unlawful. THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 §§ 2 AND 4 OF THE CONVENTION IN RESPECT OF PROVISION OF INFORMATION 125. The applicants complained that they were not given adequate information by the police about the specific allegations against them to enable them to mount an effective challenge to the lawfulness of their detention. They relied on Article 5 §§ 2 and 4 of the Convention, which provide in so far as relevant as follows: “2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.” “4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” A. Admissibility 1. The parties’ submissions 126. The Government’s position was that the applicants had failed to exhaust available remedies as regards this complaint in two respects. First, they had failed to bring a private-law claim concerning their complaint about the provision of information regarding their arrest and detention. The Government pointed out that the Divisional Court had held that the complaints should have been brought by way of a private-law action because they raised fact-sensitive issues inappropriate for judicial review proceedings. In light of the Divisional Court judgment, the applicants could undoubtedly have brought a civil damages claim in respect of their arrest and initial detention. The Government emphasised that the applicants did not argue that their detention was lawful under domestic law irrespective of compliance with Article 5 of the Convention, such that the only appropriate remedy would be a declaration of incompatibility under the Human Rights Act (see paragraph 121 above). In so far as the applicants contended that they were unable to pursue a private-law claim from Pakistan and would not have been able to obtain legal funding, the Government pointed out that the applicants had pursued the judicial review claim and the case before this Court without difficulty. It was also relevant, the Government argued, that the applicants were not excluded in principle from obtaining legal aid and, in any case, refusal to grant legal aid would not have rendered the bringing of a private-law claim impractical. 127. Second, the Government argued that the applicants had failed to exhaust available remedies because they had not renewed their application for permission to bring judicial review to the Court of Appeal. The CPR made provision for renewal of an application for permission to the Court of Appeal under Rule 52.15(1) (see paragraph 113 above). Although section 18(1)(a) of the 1981 Act precluded such appeals in any “criminal cause or matter” (see paragraph 114 above), the Government did not agree that the applicants’ complaints before the Divisional Court concerned a “criminal cause or matter”. The Divisional Court had found that complaints in respect of the applicants’ arrest and initial detention should have been brought by private-law action and claims against the police, whether in judicial review or by way of private-law claims, were civil in nature. 128. The applicants did not accept that they could have brought a private-law action in respect of their complaints. In their view, the challenge brought could only have proceeded by way of judicial review. They referred to the Divisional Court’s judgment in Rawlinson (see paragraph 108 above) in support of their position that it was perfectly proper for matters of arrest and detention to be challenged by way of judicial review. They argued that it would not have been possible to seek a declaration of incompatibility as the basis for unlawful detention in a private-law action. They further contended that legal aid would have been impossible to obtain, particularly given budgetary cuts and the fact that the applicants were, by that stage, resident abroad. 129. The applicants also argued that, in light of section 18(1)(a) of the 1981 Act, they had no right to renew their application for permission before the Court of Appeal, permission having been refused by the Divisional Court in a “criminal cause or matter”. They insisted that there could be no doubt that all the matters that were before the Divisional Court were criminal causes or matters and referred to the Court of Appeal’s judgment in Panesar (see paragraph 119 above). 2. The Court’s assessment 130. It is primordial that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights. This Court is concerned with the supervision of the implementation by Contracting States of their obligations under the Convention. It cannot, and must not, usurp the role of Contracting States whose responsibility it is to ensure that the fundamental rights and freedoms enshrined therein are respected and protected on a domestic level. The rule of exhaustion of domestic remedies is therefore an indispensable part of the functioning of this system of protection. States are dispensed from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal system and those who wish to invoke the supervisory jurisdiction of the Court as concerns complaints against a State are thus obliged to use first the remedies provided by the national legal system (see, amongst many authorities, Akdivar and Others v. Turkey, 16 September 1996, § 65, Reports of Judgments and Decisions 1996 ‑ IV; and Gough v. the United Kingdom, no. 49327/11, § 137, 28 October 2014 ). 131. As stipulated in its Akdivar judgment (cited above, §§ 66-67), normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (see also Gough, cited above § 138). 132. As the Court also held in Akdivar (cited above, § 68), in the area of the exhaustion of domestic remedies there is a distribution of the burden of proof. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success. However, once this burden of proof has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case or that there existed special circumstances absolving him or her from the requirement (see also Gough, cited above § 139). 133. Finally, the application of the rule must make due allowance for the fact that it is being applied in the context of machinery for the protection of human rights that the Contracting Parties have agreed to set up and that it must therefore be applied with some degree of flexibility and without excessive formalism (see Akdivar, cited above, § 69; and Gough, cited above § 140). 134. In the present case the Government have argued that two remedies were open to the applicants to pursue further their complaints concerning the alleged inadequacy of the information provided to them at the time of their arrest and detention. The applicants contested the availability of either remedy on the facts of their case. 135. It is generally unsatisfactory for this Court to find itself in the position of being asked to pronounce on the correct interpretation of domestic law. Both the question whether the present complaint ought to have been pursued in private-law proceedings and the question whether it concerned a “criminal cause or matter”, thus excluding the jurisdiction of the Court of Appeal, are questions better resolved by the domestic courts. However, the Court is required to assess whether domestic remedies have been exhausted and where there is a dispute between the parties about the effectiveness of a particular remedy the Court will decide the matter in accordance with the principles outlined above (see paragraphs 130 - 133 ). 136. As regards the first question, the Divisional Court made its view that private-law proceedings were appropriate to challenge the arrest and detention decisions by the police in the applicants’ case very clear in its judgment. As noted above, it is in principle for the domestic courts to determine such questions and the finding of an independent and impartial superior court, such as that of the Divisional Court in the present case, that a remedy is available will generally constitute prima facie evidence of the existence of such remedy. The applicants referred to the case of Rawlinson (see paragraph 108 above) in support of their argument that judicial review, and not private-law proceedings, was the appropriate route to challenge arrest and detention decisions. However, it does not appear that the Divisional Court’s judgment in that case provides support for the general rule contended for by the applicants and the applicants did not point to any specific passage of that judgment which they contended could carry such an interpretation. Moreover, while in their initial application they claimed that it would have been impossible to obtain legal aid for private-law proceedings, as the Government pointed out (see paragraph 126 above), they were not excluded in principle from the possibility of applying for legal aid. In these circumstances; and in the absence of any cited authority or examples of a restrictive approach to the award of legal aid in cases such as the applicants’, the argument that legal aid would not have been available is wholly speculative. 137. Further, the Court is of the opinion that the applicants have failed to demonstrate that they were not able to renew their application for permission to bring judicial review to the Court of Appeal. The domestic judgment cited by the applicants and other judgments to which it refers (see paragraphs 115 - 119 above) are of little assistance, since the finding that a “criminal cause or matter” was at stake in those cases followed a careful discussion of the specific facts of the cases. The judgments themselves recognise the ambiguity surrounding the meaning of “criminal cause or matter”, with Lord Neuberger expressing the view that only the Supreme Court would be in a position to resolve the question (see paragraph 118 above). Subsequently, in Panesar, the Court of Appeal recognised the uncertainty and incoherence to which the existing, at times inconsistent, authorities had given rise (see paragraph 119 above). While the court in that case concluded that a “criminal cause of matter” was at stake, its conclusion followed a careful examination of section 59 of the Criminal Justice and Police Act 2001, the legislative provision in respect of which the proceedings had been brought. That provision is not implicated in the present case. Given the finding of the Divisional Court as to the private-law nature of the applicants’ claim, it cannot be said with any degree of certainty that the Court of Appeal would have found that the case concerned a “criminal cause or matter” and that that court accordingly had no jurisdiction in the case. 138. The rule of exhaustion in Article 35 § 1 reflects the fundamentally subsidiary role of the Convention mechanism. The fact that the applicants dispute the findings of the Divisional Court, adjudicating at first instance, as to the true nature of the claims advanced and the appropriate domestic remedy merely underlines the importance of review of that judgment by a more senior domestic court. The Court is satisfied that the Government have demonstrated the availability of remedies that were effective and available in theory and in practice at the relevant time, that is to say, that they were accessible, capable of providing redress in respect of the applicants’ complaint and offered reasonable prospects of success. The applicants have failed to establish that these remedies were inadequate and ineffective in the particular circumstances of their case or that there existed special circumstances absolving them from the requirement to pursue them. 139. The applicants’ complaints under Article 5 §§ 2 and 4 as regards provision of information by the police concerning the reasons for their arrest and detention are accordingly inadmissible and must be rejected pursuant to Article 35 §§ 1 and 4 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION AS REGARDS THE PROCEDURE FOR GRANTING WARRANTS OF FURTHER DETENTION 140. The applicants complained that the procedure for hearing applications for warrants of further detention under Schedule 8 of the 2000 Act (see paragraphs 100 - 103 above) was incompatible with Articles 5 § 4 and 6 § 1 because it allowed evidence to be given in closed session and made no provision for special advocates. The Court considers that the complaint falls to be examined under Article 5 § 4 of the Convention only, which reads: “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” 141. The Government contested the applicants’ argument. A. Admissibility 142. The Government accepted that section 18(1)(a) of the 1981 Act (see paragraph 114 above) was likely to have prevented an appeal to the Court of Appeal in respect of this complaint. They did not argue that this complaint was inadmissible on non-exhaustion grounds. 143. The Court is satisfied that the application raises arguable issues under Article 5 § 4 of the Convention, so that it cannot be rejected as manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. The Court further considers that the application is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties’ submissions (a) The applicants 144. The applicants conceded that they did not make an application at either hearing before the City of Westminster Magistrates’ Court for a special advocate but argued that the right to a special advocate should have been explicit in the legislation. They accepted that the procedural safeguards in Article 5 § 4 were not unvarying. However, they maintained that if both domestic and European courts had held that the provision of special advocates and sufficient information in open session were necessary to safeguard Article 5 rights of individuals where there had been an interference with those rights falling short of a deprivation of liberty, then it had to follow that at least that level of protection was to be afforded where a deprivation of liberty was at stake. The failure to provide disclosure to the applicants compounded the problem. In these circumstances, decisions were made, or might be made, almost entirely based on evidence given in closed session. In the applicants’ view, the Government had failed to justify their position that their case could be distinguished from that in A. and Others v. the United Kingdom ([GC], no. 3455/05, ECHR 2009). (b) The Government 145. The Government argued that the procedural requirements of Article 5 § 4 were not unvarying but depended on the particular circumstances. They emphasised that the applicants’ case involved an extremely complex investigation into a suspected imminent terrorist attack. 146. Distinguishing A. and Others v. the United Kingdom, cited above, the Government pointed out that the applicants in the present case were detained for a total of thirteen days only and that the Article 5 § 4 requirements formulated in the context of the former case applied against the backdrop of lengthy or indefinite detention pending charge. Although the applicants had not been privy to all the information placed before the District Judges, they were not deprived of their Article 5 § 4 rights since (i) they were informed of the legal basis and reasons for their detention; (ii) they were legally represented and able to make submissions to the District Judges, as well as to call evidence or to cross-examine the police-officer witness; (iii) the more detailed explanation of the reasons for which detention was being sought was fully before the District Judges, even if it was withheld from the applicants; (iv) the procedure employed enabled the District Judges to be given a detailed explanation of the basis for suspicions so that they could ask questions and, if not satisfied, refuse to order detention; and (v) it was open to the District Judges to order the appointment of a special advocate if they considered it appropriate. 2. The Court’s assessment (a) General principles 147. As the Court explained in A. and Others v. the United Kingdom, cited above, § 203, the requirement of procedural fairness under Article 5 § 4 does not impose a uniform, unvarying standard to be applied irrespective of the context, facts and circumstances. As a general rule, an Article 5 § 4 procedure must have a judicial character but it is not always necessary that the procedure be attended by the same guarantees as those required under Article 6 for criminal or civil litigation. The guarantees it provides must be appropriate to the type of deprivation of liberty in question. 148. A deprivation of liberty under Article 5 § 1 (c), as in the present case, is permitted where there is a reasonable suspicion that a person has committed an offence. A key question for a court reviewing the legality of detention is whether a reasonable suspicion exists. It will be for the authorities to present evidence to the court demonstrating grounds for such a reasonable suspicion. This evidence should in principle be disclosed to the applicant to enable him to challenge the grounds relied upon. 149. However, as the Court has explained, terrorist crime falls into a special category. Because of the attendant risk of loss of life and human suffering, the police are obliged to act with the utmost urgency in following up all information, including information from secret sources. Further, the police may frequently have to arrest a suspected terrorist on the basis of information which is reliable but which cannot, without putting in jeopardy the source of the information, be revealed to the suspect or produced in court. Article 5 § 1 (c) of the Convention should not be applied in such a manner as to put disproportionate difficulties in the way of the police authorities in taking effective measures to counter organised terrorism in discharge of their duty under the Convention to protect the right to life and the right to bodily security of members of the public. Contracting States cannot be asked to establish the reasonableness of the suspicion grounding the arrest of a suspected terrorist by disclosing the confidential sources of supporting information or even facts which would be susceptible of indicating such sources or their identity (see Fox, Campbell and Hartley v. the United Kingdom, 30 August 1990, §§ 32-34, Series A no. 182 ). It follows that Article 5 § 4 cannot require disclosure of such material or preclude the holding of a closed hearing to allow a court to consider confidential material. Pursuant to Article 5 § 4, the authorities must disclose adequate information to enable the applicant to know the nature of the allegations against him and have the opportunity to lead evidence to refute them. They must also ensure that the applicant or his legal advisers are able to participate effectively in court proceedings concerning continued detention. (b) Application of the general principles to the facts of the case 150. In A. and Others v. the United Kingdom (cited above, § 216) the Court took as its starting-point that, at the time of the detention of the applicants in that case, there was considered to be an urgent need to protect the population of the United Kingdom from terrorist attack by al-Qaeda and a strong public interest in obtaining information about al-Qaeda and its associates and in maintaining the secrecy of the sources of such information. The present case, like that in A. and Others v. the United Kingdom, concerned allegations of a planned large-scale terrorist attack which, if carried out, was likely to result in significant loss of life and serious injury. The applicants did not argue that the context of their arrests was inadequate to justify the holding of a closed hearing and restrictions on their right to disclosure. The Court is satisfied that the threat of an imminent terrorist attack, identified in the course of Operation Pathway, provided ample justification for the imposition of some restrictions on the adversarial nature of the proceedings concerning the warrants for further detention, for reasons of national security. 151. In terms of the applicable legal framework governing proceedings for warrants of further detention, Schedule 8 to the 2000 Act sets out clear and detailed procedural rules. Thus, a detained person must be given notice of an application for a warrant of further detention and details of the grounds upon which further detention is sought. He is entitled to legal representation at the hearing and has the right to make written or oral submissions. The possibility of withholding specified information from the detained person and his lawyer is likewise provided for in Schedule 8 and is subject to the court’s authorisation. Schedule 8 also sets out the right of the court to order that a detained person and his lawyer be excluded from any part of a hearing. The grounds for granting a warrant of further detention are listed in Schedule 8 (see paragraphs 100 - 103 above). 152. The proceedings in the present case, which took place before the City of Westminster Magistrates’ Court, were judicial in nature and followed the procedure set out in Schedule 8. An application for the warrants of further detention was made and served on the applicants the day before each of the two hearings (see paragraphs 39 and 58 above). The majority of each application was disclosed, with only information in section 9 of the application, concerning the further inquiries to be made, being withheld (see paragraphs 40 and 58 above). That information was provided to the District Judge and the applicants were given reasons for the withholding of the information (see paragraph 42 above). 153. It is true that part of the hearing on 10 April 2009 was closed to enable the District Judge to scrutinise and ask questions about the section 9 material (see paragraph 41 above). However, as the House of Lords explained in Ward (see paragraph 105 above), the procedure in Schedule 8 allowing the court to exclude the applicants and their lawyers from any part of a hearing was conceived in the interests of the detained person, and not in the interests of the police. It enabled the court to conduct a penetrating examination of the grounds relied upon by the police to justify further detention in order to satisfy itself, in the detained person’s best interests, that there were reasonable grounds for believing that further detention was necessary. The Court is further satisfied that the District Judge was best placed to ensure that no material was unnecessarily withheld from the applicants (see, similarly, A. and Others v. the United Kingdom, cited above, § 218). 154. The applicants complain specifically of the failure of the Schedule 8 procedure to make provision for the appointment of a special advocate. However, it is clear from the judgment of the Divisional Court that the District Judge had the power to appoint a special advocate if he considered such appointment necessary to secure the fairness of the proceedings (see paragraph 88 above). The applicants do not contest that finding. It is noteworthy that the applicants did not request the appointment of a special advocate at any stage in the proceedings in respect of either application. 155. At the open hearings, the senior police officer making the application explained orally why the application was being made and, at the second hearing, provided details regarding the progress of the investigation and the examination of material seized during the searches (see paragraphs 42 and 59 above). The applicants were legally represented and their solicitor was able to cross-examine the police-officer witness, and did so at the first hearing on 10 April 2009 (see paragraph 43 above). 156. In the light of the foregoing, the Court is satisfied that there was no unfairness in the proceedings leading to the grant of the warrants of further detention on 10 and 15 April 2009. In particular, the absence of express legislative provision for the appointment of a special advocate did not render the proceedings incompatible with Article 5 § 4 of the Convention. 157. There has accordingly been no violation of Article 5 § 4 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 158. The applicants complained that the searches of their premises violated their right to respect for their private lives and homes because: (i) the warrants permitted entry and search “on one occasion” only which could not be equated with continuous occupation; and (ii) the warrants were drawn too widely, thereby permitting search for, and seizure of, almost any item of property. They relied on Article 8 of the Convention, which provides: “ 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety ..., for the prevention of disorder or crime, ... or for the protection of the rights and freedoms of others.” 159. In respect of the latter complaint the applicants also relied on Article 1 of Protocol No. 1 but the Court considers that the matter is more appropriately examined from the standpoint of Article 8 of the Convention only. 160. The Government contested the argument that a violation of Article 8 had occurred. A. Admissibility 1. The parties’ submissions 161. The Government argued that the complaint as to the manner in which the searches were carried out was inadmissible because the applicants had failed to exhaust available remedies. They referred again to the possibility of bringing a private-law remedy and to the failure of the applicants to seek permission from the Court of Appeal (see paragraphs 126 ‑ 127 above). In so far as Mr Sher complained about the search of his business premises, the Government pointed out that this complaint had not been raised at all in the domestic proceedings. However, the Government accepted that the complaint in respect of the scope of the search warrants was amenable to judicial review and that section 18(1)(a) of the 1981 Act (see paragraph 114 above) was likely to have prevented any appeal to the Court of Appeal. 162. The applicants claimed that it had long been settled law that search warrants could only be challenged in proceedings for judicial review, because it was the lawfulness of an order of the court that was challenged. They referred to domestic case-law (see paragraphs 109 - 112 above) and argued that the Divisional Court and the Government were wrong on this point. The applicants also relied again on the effect of section 18(1)(a) of the 1981 Act. 2. The Court’s assessment 163. The Court reiterates its comments as regards the subsidiary nature of the Convention mechanism (see paragraph 138 above). It is significant that the Divisional Court considered the manner of execution of the warrant to be a private-law issue unsuitable for judicial review proceedings (see paragraph 83 above).The cases to which the applicants referred, which concerned the issues surrounding the validity and quashing of search warrants, do not appear sufficient to displace the evidence provided by the Divisional Court’s judgment of the prima facie existence of an available and effective remedy. The Court further reiterates its comments in respect of the application of section 18(1)(1a) of the 1981 Act (see paragraph 137 above). The complaint in respect of the manner of execution of the warrant must therefore be rejected pursuant to Article 35 §§ 1 and 4 of the Convention. 164. As regards the search of Mr Sher’s business premises, it is clear from the judgment of the Divisional Court that no relevant complaint was made in the domestic proceedings (see paragraph 73 above). This complaint must also be rejected, pursuant to Article 35 §§ 1 and 4, on account of the failure to exhaust domestic remedies. 165. Finally, the Court is satisfied that the complaint concerning the scope of the search warrants issued in respect of the applicants’ homes raises arguable issues under Article 8 of the Convention, so that it cannot be rejected as manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. The Court further considers that the complaint is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties’ submissions (a) The applicants 166. The applicants maintained that the warrants were unjustifiably wide in scope. (b) The Government 167. The Government accepted that the search of the applicants’ homes amounted to an interference with their Article 8 rights. The question was whether the reasons adduced to justify the measures were relevant and sufficient and whether the proportionality principle had been respected. The Government considered these conditions to be satisfied and made a number of points in this respect. 168. Firstly, they emphasised that the warrants were issued by a judicial authority which was satisfied that the relevant statutory criteria had been met, namely, that the warrants were sought for the purposes of a terrorist investigation; that there were reasonable grounds for believing that there would be material on the premises which was likely to be of substantial value to the investigation; and that the issue of a warrant was likely to be necessary in the circumstances of the case. Secondly, the warrants did not purport to grant authority to seize protected or privileged material. Thirdly, the warrant was expressly worded so that any constable was only authorised to seize articles in respect of which application had been made or to seize and retain “relevant” materials found during the search, thus excluding seizure or retention of material not justified by the terrorist investigation. Fourthly, the width of the description of relevant material was justified by the fact that the police had genuine and reasonable concerns about an imminent terrorist attack and elaborate reasoning as to precisely what items might prove to be relevant was not consistent with the urgency of the situation. The width was also justified by the nature of the investigation, which concerned a sophisticated terrorist plot in which different media (in particular electronic media) were reasonably suspected of being used by the plotters to communicate. Fifthly, the warrants and searches were subject to a further safeguard in the form of an ex post facto judicial review or claim for damages. In the present case the applicants were unable to identify any item seized or searched for that was not justified by reference to the particular nature of the investigation. 169. As regards the comments of the third-party intervener, the Government considered that they concerned an unjustified trawl and retention of personal data that was not the subject of the applicants’ complaint or the domestic proceedings. Notwithstanding the sincerity of the concerns raised, the Government maintained that there was no basis for concluding that searches of the applicants’ electronic data were not justified. (c) The third-party intervener 170. The third-party intervener, Privacy International, focused its comments on searches of electronic devices, which entailed access to personal and communications data. It emphasised the innovations in technology which had resulted in previously unimagined forms of collecting, storing, sharing and analysing data. Access by law-enforcement officers to an individual’s electronic devices could enable access to everything that person had ever digitally touched, encompassing data not stored on the device itself but on external networked servers. The combination of data available could be extremely revelatory. In light of the particularly intrusive nature of searches of electronic devices, Privacy International argued for a high threshold when determining whether an interference with Article 8 rights was justified. 2. The Court’s assessment 171. It is not contested that the search of the applicants’ homes amounted to an interference with their right under paragraph 1 of Article 8 to respect for their private lives and homes. 172. The applicants did not dispute that the issue of the search warrants was “in accordance with the law” and in pursuit of a legitimate aim, as required by paragraph 2 of Article 8. The question for the Court is whether the measure complained of was “necessary in a democratic society”, in other words, whether the relationship between the aim sought to be achieved and the means employed can be considered proportionate (see Robathin v. Austria, no. 30457/06, § 43, 3 July 2012). Elements taken into consideration are, in particular, whether the search was undertaken pursuant to a warrant issued by a judge and based on reasonable suspicion; whether the scope of the warrant was reasonably limited; and – where the search of a lawyer’s office was concerned – whether the search was carried out in the presence of an independent observer in order to ensure that materials subject to professional secrecy were not removed (see Robathin, cited above, § 44, and Wieser and Bicos Beteiligungen GmbH v. Austria, no. 74336/01, § 57, ECHR 2007 ‑ IV ). 173. The warrant in the present case was issued by a District Judge in the Magistrates’ Court, in the context of criminal proceedings against the applicants on suspicion of involvement in terrorism. The police officer making the application confirmed that he had reasonable grounds for believing that the material at the addresses identified was likely to be of substantial value to a terrorism investigation and the judge agreed (see paragraph 33 - 35 above). The applicants did not suggest that there were no reasonable grounds for granting the warrant. 174. It is true that the search warrant was couched in relatively broad terms. While limiting the search and seizure of files to specific addresses, it authorised in a general and unlimited manner the search and seizure of correspondence, books, electronic equipment, financial documents and numerous other items. However, the specificity of the list of items susceptible to seizure in a search conducted by law-enforcement officers will vary from case to case depending on the nature of the allegations in question. Cases such as the present one, which involve allegations of a planned large-scale terrorist attack, pose particular challenges, since, while there may be sufficient evidence to give rise to a reasonable suspicion that an attack is under preparation, an absence of specific information about the intended nature of the attack or its targets make precise identification of items sought during a search impossible. Further, the complexity of such cases may justify a search based on terms that are wider than would otherwise be permissible. Multiple suspects and use of coded language, as in the present case, compound the difficulty faced by the police in seeking to identify in advance of the search the specific nature of the items and documents sought. Finally, the urgency of the situation cannot be ignored. To impose under Article 8 the requirement that a search warrant identify in detail the precise nature of the items sought and to be seized could seriously jeopardise the effectiveness of an investigation where numerous lives might be at stake. In cases of this nature, the police must be permitted some flexibility to assess, on the basis of what is encountered during the search, which items might be linked to terrorist activities and to seize them for further examination. While searches of electronic devices raise particularly sensitive issues, and arguably require specific safeguards to protect against excessive interference with personal data, such searches were not the subject of the applicants’ complaints or the domestic proceedings in this case and, in consequence, no evidence has been led by the parties as to the presence or otherwise of such safeguards in English law. 175. Finally, it is of some relevance in the present case that the applicants had a remedy in respect of the seized items in the form of an ex post facto judicial review claim or a claim for damages (see paragraph 168 above). It is noteworthy that they did not seek to challenge the seizure of any specific item during the search, nor did they point to any item which they contend was seized or searched for unjustifiably by reference to the nature of the investigation. 176. For these reasons, the Court concludes that the search warrants in the present case cannot be regarded as having been excessively wide. The national authorities were therefore entitled to consider that the resultant “interference” with the applicants’ right to respect for their private lives and homes was “necessary in a democratic society” within the meaning of Article 8 § 2 of the Convention. | The Court held that there had been no violation of Article 8 (right to respect for private and family life and home) of the Convention. It found in particular that the fight against terrorism and the urgency of the situation had justified a search of the applicants’ homes pursuant to a search warrant framed in relatively broad terms. Moreover, there had been sufficient safeguards against the risk of arbitrariness in respect of the search warrants, which had been issued by a judge, without the applicants suggesting that there had been no reasonable grounds for doing so. |
797 | Risk of ill-treatment in case of expulsion or extradition | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Primary legislation 23. Section 82(1) of the Nationality, Immigration and Asylum Act 2002 (“the NIA Act 2002”), provides a right of appeal against an immigration decision made by the Secretary of State for the Home Department. 24. Appeals in asylum, immigration and nationality matters are heard by the First-tier Tribunal ( Immigration and Asylum Chamber ), which replaced the former Asylum and Immigration Tribunal (“AIT”) on 15 February 2010. 25. Section 11 of the Tribunals, Courts and Enforcement Act 2007 provides a right of appeal to the Upper Tribunal, with the permission of the First-tier Tribunal or the Upper Tribunal, on any point of law arising from a decision made by the First-tier Tribunal other than an excluded decision. 26. Section 2 of the Human Rights Act 1998 provides that, in determining any question that arises in connection with a Convention right, courts and tribunals must take into account any case-law from this Court so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen. Section 6(1) provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right. B. Country guidance determinations 27. Country guidance determinations of both the former AIT and the Upper Tribunal are to be treated as an authoritative finding on the country guidance issue identified in the determination, based upon the evidence before the members of the AIT or Upper Tribunal that determined the appeal. Unless expressly superseded or replaced by a later country guidance determination, country guidance determinations are authoritative in any subsequent appeals so far as that appeal relates to the country guidance issue in question and depends upon the same or similar evidence. 1. GS (Article 15 (c) : Indiscriminate violence) Afghanistan CG [2009] UKAIT 00044 28. In the country guidance determination of GS, of 15 October 2009, the then AIT held that there was not in Afghanistan such a high level of indiscriminate violence that substantial grounds existed for believing that a civilian would, solely by being present there, face a real risk which threatens the civilian ’ s life or person, such as to entitle that person to the grant of humanitarian protection, pursuant to Articles 2(e) and 15(c) of Council Directive 2004/83/EC (see paragraphs 33 - 34 ). 29. In considering the concept of a group of people at enhanced risk of indiscriminate violence, the AIT further commented that: “ The European Court made it clear in Elgafaji that where a person comes within a group of people for whom there is an enhanced risk, the degree of indiscriminate violence does not need to be as high as it would otherwise have to be in order to invoke Article 2 or Article 15(c). We have already observed that the ultimate test is that of real risk of serious harm. We have not heard much evidence about enhanced risk categories, and that is not an issue we have had to consider in relation to the appellant. It was accepted by counsel for the respondent that those who could be perceived as collaborators may be considered to be in such a category. That may include teachers, local government officers and government officials. The concept of a group of people at enhanced risk of indiscriminate violence is not an immediately obvious one. The difficulty concerns the use of the word “indiscriminate”, but the answer is partly contained in QD and AH, which considered the “individual risk of indiscriminate violence”. The way in which an enhanced risk might arise for a group can best be demonstrated by example. If, say, the Taliban wanted to make a point about teachers continuing to teach girls, it may resolve to kill a teacher. It would not be any specific teacher but one who came into their sights. A teacher is of course not a combatant and an attempt to kill the first teacher they came across could be argued to demonstrate that teachers were then at enhanced risk of indiscriminate violence. Another possible example could be disabled people. If a bomber, or sniper, were to walk into a crowded marketplace, the public may well flee. A man with only one leg would move considerably more slowly and arguably as a result would be in a higher risk group than the general public. In view of the paucity of evidence, we cannot give a list of risk categories, and certainly cannot say that any particular occupation or status puts a person into such a higher risk category. We merely record that there may be such categories, and that if a person comes within one, the degree of indiscriminate violence required to succeed may be reduced depending upon the particular facts of the case both in terms of the individual concerned, and the part of Afghanistan from which he comes. It should also be borne in mind that such a person may, depending on the facts, be entitled to refugee status rather than relying on the subsidiary protection offered by Articles 2 and 15 of the Qualification Directive. We emphasise that those examples should not be taken to indicate that teachers, or the disabled, are members of enhanced risk groups, without proof to that effect. ” 2. Further consideration of the level of indiscriminate violence in Afghanistan by the Upper Tribunal 30. In HK and others (minors – indiscriminate violence – forced recruitment by Taliban – contact with family members) Afghanistan CG [2010] UKUT 378 (IAC), the Upper Tribunal, in a determination dated 21 October 2010, concluded, inter alia, that the evidence as to the level of indiscriminate violence affecting civilians generally in Afghanistan which had become available since GS (see paragraphs 28 - 29 above ) was not sufficient to show that the guidance given by the AIT in GS was no longer to be regarded as valid. 31. In AA (unattended children) Afghanistan CG [2012] UKUT 00016 (IAC), promulgated on 1 February 2012, the Upper Tribunal found that there could be no doubt that the material before it revealed a deterioration in the security situation in Afghanistan since HK and others. However, the Upper Tribunal found that there was no evidence to suggest that there was any material difference to the risk to which the adult civilian population was subject in Afghanistan. 32. In AK (Article 15(c)) Afghanistan CG [2012] UKUT 00163 (IAC), promulgated on 18 May 2012, the Upper Tribunal reconsidered the evidence as to the level of indiscriminate violence affecting ordinary civilians which had become available since GS (see paragraphs 28 - 29 above). The Upper Tribunal concluded as follows: (i) This decision replaces GS (Article 15(c): indiscriminate violence) Afghanistan CG [2009] UKAIT 00044 as current country guidance on the applicability of Article 15(c) to the on-going armed conflict in Afghanistan. ... (ii) Despite a rise in the number of civilian deaths and casualties and (particularly in the 2010-2011 period) an expansion of the geographical scope of the armed conflict in Afghanistan, the level of indiscriminate violence in that country taken as a whole is not at such a high level as to mean that, within the meaning of Article 15(c) of the Qualification Directive, a civilian, solely by being present in the country, faces a real risk which threatens his life or person. (iii) Nor is the level of indiscriminate violence, even in the provinces worst affected by the violence (which may now be taken to include Ghazni but not to include Kabul ), at such a level. (iv) Whilst when assessing a claim in the context of Article 15(c) in which the respondent asserts that Kabul city would be a viable internal relocation alternative, it is necessary to take into account (both in assessing “safety” and reasonableness”) not only the level of violence in that city but also the difficulties experienced by that city ’ s poor and also the many Internally Displaced Persons (IDPs) living there, these considerations will not in general make return to Kabul unsafe or unreasonable ... ” III. RELEVANT EUROPEAN UNION LAW 33. Council Directive 2004/83/EC of 29 April 2004 (on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted : “the Qualification Directive” ) has the objective, inter alia, of ensuring EU Member States apply common criteria for the identification of persons genuinely in need of international protection (recital six of the preamble). 34. In addition to regulating refugee status within the European Union legal order, it makes provision for granting subsidiary protection status. Article 2(e) defines a person eligible for subsidiary protection status as someone who would face a real risk of suffering serious harm if returned to his or her country of origin and who is unable, or, owing to such risk, unwilling to avail himself of the protection of that country. “ Serious harm ” is defined in Article 15 as consisting of: “a) death penalty or execution; or b) torture or inhuman or degrading treatment or punishment of an applicant in the country of origin; or c) serious and individual threat to a civilian ’ s life or person by reason of indiscriminate violence in situations of international or internal armed conflict. ” 35. In case C-465/07, Elgafaji v. Staatssecretaris van Justitie, 17 February 2009, the Grand Chamber of the then Court of Justice of the European Communities was asked to give a preliminary ruling on the meaning of Article 15(c) of the Qualification Directive and the criteria for its application. The court considered it appropriate to compare the three types of “serious harm” defined in Article 15 of the Directive and continued: “ ... the terms ‘ death penalty ’, ‘ execution ’ and ‘ torture or inhuman or degrading treatment or punishment of an applicant in the country of origin ’, used in Article 15(a) and (b) of the Directive, cover situations in which the applicant for subsidiary protection is specifically exposed to the risk of a particular type of harm. 33 By contrast, the harm defined in Article 15(c) of the Directive as consisting of a ‘ serious and individual threat to [the applicant ’ s] life or person ’ covers a more general risk of harm. 34 Reference is made, more generally, to a ‘ threat ... to a civilian ’ s life or person ’ rather than to specific acts of violence. Furthermore, that threat is inherent in a general situation of ‘ international or internal armed conflict ’. Lastly, the violence in question which gives rise to that threat is described as ‘ indiscriminate ’, a term which implies that it may extend to people irrespective of their personal circumstances. 35 In that context, the word ‘ individual ’ must be understood as covering harm to civilians irrespective of their identity, where the degree of indiscriminate violence characterising the armed conflict taking place – assessed by the competent national authorities before which an application for subsidiary protection is made, or by the courts of a Member State to which a decision refusing such an application is referred – reaches such a high level that substantial grounds are shown for believing that a civilian, returned to the relevant country or, as the case may be, to the relevant region, would, solely on account of his presence on the territory of that country or region, face a real risk of being subject to the serious threat referred in Article 15(c) of the Directive. ... 39 In that regard, the more the applicant is able to show that he is specifically affected by reason of factors particular to his personal circumstances, the lower the level of indiscriminate violence required for him to be eligible for subsidiary protection. ... 43 Having regard to all of the foregoing considerations, the answer to the questions referred is that Article 15(c) of the Directive, in conjunction with Article 2(e) of the Directive, must be interpreted as meaning that: – the existence of a serious and individual threat to the life or person of an applicant for subsidiary protection is not subject to the condition that that applicant adduce evidence that he is specifically targeted by reason of factors particular to his personal circumstances; – the existence of such a threat can exceptionally be considered to be established where the degree of indiscriminate violence characterising the armed conflict taking place -- assessed by the competent national authorities before which an application for subsidiary protection is made, or by the courts of a Member State to which a decision refusing such an application is referred -- reaches such a high level that substantial grounds are shown for believing that a civilian, returned to the relevant country or, as the case may be, to the relevant region, would, solely on account of his presence on the territory of that country or region, face a real risk of being subject to that threat. 44 It should also, lastly, be added that the interpretation of Article 15(c) of the Directive, in conjunction with Article 2(e) thereof, arising from the foregoing paragraphs is fully compatible with the ECHR, including the case-law of the European Court of Human Rights relating to Article 3 of the ECHR (see, inter alia, [ NA. v. the United Kingdom, no. 25904/07, § § 115- 117, 17 July 2008 ] and the case ‑ law cited).” IV. RELEVANT INTERNATIONAL LAW 36. The United Nations Convention on the Rights of Persons with Disabilities and its Optional Protocol were adopted by the United Nations General Assembly on 13 December 2006. Twenty-six Contracting States have ratified both the Convention and the Optional Protocol. A further seven Contracting States have ratified only the Convention. The United Kingdom ratified the Convention on 8 June 2009 and the Optional Protocol on 7 August 2009. 37. Article 1 provides that: “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.” 38. Article 11 provides that : “States Parties shall take, in accordance with their obligations under international law, including international humanitarian law and international human rights law, all necessary measures to ensure the protection and safety of persons with disabilities in situations of risk, including situations of armed conflict, humanitarian emergencies and the occurrence of natural disasters.” 39. Article 15, where relevant, provides that: “ ... 2. States Parties shall take all effective legislative, administrative, judicial or other measures to prevent persons with disabilities, on an equal basis with others, from being subjected to torture or cruel, inhuman or degrading treatment or punishment.” 40. Article 16, where relevant, provides that: “ ... 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 ... .” V. RELEVANT INFORMATION ABOUT AFGHANISTAN A. United Nations High Commissioner for Refugees (“UNHCR”) 41. On 17 December 2010, UNHCR issued the most recent Eligibility Guidelines for Assessing the International Protection needs of Asylum ‑ Seekers from Afghanistan (“the December 2010 UNHCR Guidelines”) and set out the categories of Afghans considered to be particularly at risk in Afghanistan in view of the security, political and human rights situation in the country at that time. 42. Those Guidelines observed: “UNHCR considers that individuals with the profiles outlined below require a particularly careful examination of possible risks. These risk profiles, while not necessarily exhaustive, include (i) individuals associated with, or perceived as supportive of, the Afghan Government and the international community, including the International Security Assistance Force (ISAF); (ii) humanitarian workers and human rights activists; (iii) journalists and other media professionals; (iv) civilians suspected of supporting armed anti-Government groups; (v) members of minority religious groups and persons perceived as contravening Shari ’ a law; (vi) women with specific profiles; (vii) children with specific profiles; (viii) victims of trafficking; (ix) lesbian, gay, bisexual, transgender and intersex (LGBTI) individuals; (x) members of (minority) ethnic groups; and (xi) persons at risk of becoming victims of blood feuds. In light of the worsening security environment in certain parts of the country and the increasing number of civilian casualties UNHCR considers that the situation can be characterized as one of generalized violence in Helmand, Kandahar, Kunar, and parts of Ghazni and Khost provinces. Therefore, Afghan asylum-seekers formerly residing in these areas may be in need of international protection under broader international protection criteria, including complementary forms of protection. In addition, given the fluid and volatile nature of the conflict, asylum applications by Afghans claiming to flee generalized violence in other parts of Afghanistan should each be assessed carefully, in light of the evidence presented by the applicant and other current and reliable information on the place of former residence. This latter determination will obviously need to include assessing whether a situation of generalized violence exists in the place of former residence at the time of adjudication. UNHCR generally considers internal flight as a reasonable alternative where protection is available from the individual ’ s own extended family, community or tribe in the area of prospective relocation. Single males and nuclear family units may, in certain circumstances, subsist without family and community support in urban and semi-urban areas with established infrastructure and under effective Government control. Given the breakdown in the traditional social fabric of the country caused by decades of war, massive refugee flows, and growing internal migration to urban areas, a case-by-case analysis will, nevertheless, be necessary .” 43. The Guidelines further recorded a worsening security environment in certain areas of the country and characterised the situation as one of generalised violence in the Helmand, Kandahar, Kunar and parts of Ghazni and Khost provinces. The Guidelines stated the following: “ The intensification and spread of the armed conflict in Afghanistan took a heavy toll on the civilian population in 2009 and continued to worsen through the first half of 2010. At least 5,978 civilians were reported killed and injured in 2009, the highest number of civilian casualties recorded in one year since the fall of the Taliban in 2001. 3,268 casualties were recorded during the first six months of 2010, representing a 31 percent increase over the same period in 2009. Compared to previous years and contrary to seasonal trends, a significant increase in the number of security incidents has been observed during the first half of 2010. This increase is in part attributable to an increase in military operations in the southern region since February 2010 and to significant activities of armed anti-Government groups in the south-eastern and eastern regions of Afghanistan. It is reported that armed anti-Government groups remain responsible for the largest proportion of civilian casualties, whether due to targeted or indiscriminate attacks. The continued instability in Afghanistan has resulted in the shrinking of the humanitarian space, limiting the presence and activities of humanitarian workers and NGOs. Conflict-related human rights violations are on the rise, including in areas previously considered relatively stable. The escalation of the conflict between the Afghan and international military forces, and the Taliban and other armed groups, has contributed to limiting the access to health care and education, particularly in the southern and south-eastern regions of the country. A broad spectrum of civilians, including community elders, humanitarian personnel, doctors, teachers and construction workers has been targeted by armed anti-Government groups ... ” 44. In relation to internal relocation, the Guidelines stated that: “The traditional extended family and community structures of Afghan society continue to constitute the main protection and coping mechanism, particularly in rural areas where infrastructure is not as developed. Afghans rely on these structures and links for their safety and economic survival, including access to accommodation and an adequate level of subsistence. Since the protection provided by families and tribes is limited to areas where family or community links exist, Afghans, particularly unaccompanied women and children, and women single head of households with no male protection, will not be able to lead a life without undue hardship in areas with no social support networks, including in urban centres. In certain circumstances, relocation to an area with a predominately different ethnic/religious make-up may also not be possible due to latent or overt tensions between ethnic/religious groups.” B. Other United Nations Reports 1. United Nations Assistance Mission in Afghanistan 45. The United Nations Assistance Mission in Afghanistan (“UNAMA”) Mid Year Report 201 1 on the Protection of Civilians in Armed Conflict (“the UNAMA Report”) covers the period from 1 January 201 1 and 30 June 201 1 and is compiled, inter alia, to monitor the situation of civilians in Afghanistan. In the Executive Summary, the UNAMA Report states: “ In the first six months of 2011, the armed conflict in Afghanistan brought increasingly grim impacts and a bleak outlook for Afghan civilians. As the conflict intensified in the traditional fighting areas of the south and southeast and moved to districts in the west and north, civilians experienced a downward spiral in protection. At the same time, non-State armed groups or Anti-Government Elements (AGEs) altered their tactics with deadly results. Increasingly, AGEs undertook unlawful means of warfare including increased use of improvised explosive devices (IEDs) – particularly victim-activated pressure plate IEDs which act like anti-personnel landmines and are indiscriminate, as they are detonated by any person stepping on or any vehicle driving over them – targeted killings of high profile civilians, and attacks on protected places such as hospitals. ” 2. United Nations Committee on Economic Social and Cultural Rights (“ UNCESCR”) 46. In its Concluding Observations on Afghanistan dated 7 June 2010, the UNCESCR stated: “The Committee, while taking note of the adoption of the 2008 Afghanistan National Disability Action Plan [see paragraph 48 below], regrets that the report does not accurately reflect the current situation of persons with disabilities and characterizes disability mainly as a matter of charity and a medical concern. The Committee is concerned at the lack of sufficient measures to implement the Action Plan. The Committee recommends that the State party take concrete steps to implement the 2008 Afghanistan National Disability Action Plan without discrimination and, in this regard, consider ratifying the Convention on the Rights of Persons with Disabilities and its Optional Protocol.” C. Reports from Afghanistan 1. The Afghanistan Independent Human Rights Commission (“ the AIHRC”) 47. In its Report on the Situation of Economic and Social Rights in Afghanistan – IV, Qaws 1388 (November/December 2009), the AIHRC stated: “ Persons with disabilities are among the most vulnerable segments of population and the government has taken no measures to enable their full participation in society and to ensure their access to social and educational services. Due to the lack of public awareness about the concept of disability, persons with disabilities are often perceived as a family and societal burden and are humiliated and discriminated against. Article 22 of the Afghan Constitution has emphasised the equality of all people and has outlawed all forms of discrimination among citizens. Article 53 of the Constitution requires the government of Afghanistan to take the necessary measures to ensure rehabilitation, training, and active social participation of persons with disabilities and provide them with medical and financial assistance. Under ANDS [“the Afghanistan National Development Strategy”], the government is obligated to provide further assistance to meet the special needs of persons with disabilities, including their inclusion in the community through providing education and job opportunities. No significant progress is visible in this area. ... Thirty years of war in Afghanistan had unfavourable effects and one of these is the rise in the number of persons with disabilities. The Afghan conflict not only physically incapacitated people, but it also had negative implications for the psyche of Afghan public. ... There is no precise assessment of the number and situation of persons with disabilities in Afghanistan and different authorities have presented different statistical data on the number of persons with disabilities. Handicap International estimates that there are 800,000 persons with severe disabilities, however, according to the national disability survey in Afghanistan, out of 25 million Afghan people, 747,500 to 867,100 people have severe disabilities, 17% of which are persons with war disability and 6.8% are victims of mines and other unexploded ordinance (UXO). On an average basis, for every five families, there is a person with a disability. ... Approximately 70% of persons with disabilities aged over 15 are jobless. Disability has had a direct and strong correlation with the rising trend of unemployment. ... Growing insecurity, homelessness, disputes over property, and lack of livelihood are the factors obstructing the return of refugees and the reintegration of returnees and IDPs. Insecurity in many parts of the country have made return to places of origin almost impossible. Several regime changes in the course of the Afghan conflict have given rise to several ownership claims on one single land plot. Many commanders have illegally expropriated lands and distributed them among their soldiers and relatives. Family size increased almost three times during forced migration and their return to their places of origin is obstructed, for their existing lands or houses are too small to accommodate them all. Additionally, many people who fled Afghanistan lacked property and are reluctant to return to their places of origin because there are no livelihood options. Inadequate economic opportunities have made return to one ’ s place of origin either impossible or undesirable. Most people who are unable to return to their places of origin migrate to other cities due to lack of livelihood options and homelessness and therefore join the category of the urban poor. ” 2. The Afghanistan National Disability Action Plan 2008-2011 (Ministry of Labour, Social Affairs, Martyrs and Disabled, May 2008) 48. The Afghanistan National Disability Action Plan examined the challenges faced by persons with disabilities in Afghanistan and set national objectives and strategies for the Afghan Government and other stakeholders to help improve the lives of persons with disabilities throughout Afghanistan. It observed, inter alia, the following: “Services are not equitably spread across all areas of the country and many people with disabilities lack appropriate care or must travel long distances to access it. For example, physical rehabilitation activities are available in only 80 out of 364 districts in 19 of 34 provinces in Afghanistan. Prior to the completion of the ANDS there was insufficient data available on the socio-economic conditions of people with disabilities. However, it was recognized that people with a disability were among those in the most socio-economically vulnerable situation in Afghanistan. ... For example, the ANDS found that 70 percent of people with a disability aged over 15 are unemployed; 53 percent of males and 97 percent of females. In comparison, 25 percent of men and 94 percent of women without disability are unemployed.” D. United States of America Department of State Report 49. In its 201 1 Country Report on Human Rights Practices – Afghanistan, published in May 2012, the State Department observed: “ Continuing internal conflict resulted in civilian deaths, abductions, prisoner abuse, property damage, and the displacement of residents. The security situation remained a problem during the year due to insurgent attacks. According to a 2011 report by UNAMA, civilians continued to bear the brunt of intensified armed conflict as civilian deaths increased by 8 percent during the year compared with 2010. The large number of attacks by anti-government elements limited the capability of the central government to protect human rights in many districts, especially in the South. The growth in civilian casualties was due primarily to the armed opposition ’ s indiscriminate use of land mine-like pressure plate improvised explosive devices ... The government cooperated with the UNHCR, the International Organization for Migration (IOM), and other humanitarian organizations in providing protection and assistance to internally displaced persons, refugees, returning refugees, and other persons of concern but was limited by lack of infrastructure and capacity. ... Internally Displaced Persons (IDPs) The country continued to experience high levels of internal population movements, triggered by military operations, natural disasters, and irregular labor conditions. Large numbers of refugees returned but were unable to reside safely in their previous homes because of poor service infrastructure in rural areas, and the volatile security situation in some parts of the country. At year ’ s end, an estimated 447,547 persons were displaced, according to the UNHCR. Of these, 116,741 persons were displaced prior to December 31, 2002 (referred to as IDPs in protracted displacement). Between January and December, 185,631 persons were displaced due to conflict. The main areas in which displacement originated were Badghis, Farah, Ghor, and Herat in the West and Faryab in the North. The displaced populations largely remained in their regions of origin. The key provinces that received IDPs, in order of the numbers displaced, were Herat, Kandahar, Nangarhar, and Helmand. Local governments provided access to land for basic accommodation, while international organizations and the Afghan Red Crescent Society provided shelter, food, and other life-saving aid. However, access to land and rights for returnees and IDPs were hampered by a weak judiciary. Some IDPs in protracted displacement established self-sufficient settlements in the Herat, Kandahar, Helmand, and Jalalabad areas. Unverified populations, including IDPs and refugees who returned, were also known to reside alongside urban slum dwellers in unauthorized informal settlements in the larger urban areas of Kabul, Jalalabad, Mazar-e-Sharif, and Herat. These settlements were prone to serious deficiencies in several areas, including health, education, security of tenure, and absence of registration of child births and identity cards. Restricted access due to poor security limited the UNHCR ’ s efforts to assess the numbers of displaced persons and made it difficult to provide assistance. ... Persons with Disabilities The constitution prohibits any kind of discrimination against citizens and requires the state to assist persons with disabilities and to protect their rights, including the rights to health care and financial protection. The constitution also requires the state to adopt measures to reintegrate and ensure the active participation in society of persons with disabilities. The MoLSAMD [ Ministry of Labor, Social Affairs, Martyrs, and Disabled] drafted and the cabinet approved a five-year National Action Plan on March 16, which directs ministries to provide vocational training, establish empowerment centers, distribute food, build handicapped ramps in some government offices, conduct public awareness programs about the disabled, and take other steps to assist Afghans with disabilities. The government and NGOs estimated that there were up to 900,000 mobility ‑ impaired persons, of whom approximately 40,000 were limb amputees. The MoLSAMD stated that it provided financial support to 79,202 individuals with disabilities. The MoLSAMD accorded special treatment to families of those killed in war. In the Meshrano Jirga, two of the presidentially appointed seats were reserved for persons with disabilities. ” E. Non-governmental Organisations ’ reports 1. Landmine and Cluster Munition Monitor 50. In a report entitled “Key Developments since May 2005”, the Landmine and Cluster Munition Monitor reported that: “A survey by the Ministry of Labor and Social Affairs and the International Rescue Committee found an estimated 84 percent unemployment rate among people with disabilities.” 2. Austrian Centre for Country of Origin and Asylum Research and Documentation 51. In a report entitled “ Country Report Afghanistan. 11th European Country of Origin Information Seminar ( Vienna, 21-22 June 2007) ”, published in November 2007, the Austrian Centre for Country of Origin and Asylum Research and Documentation summarised the presentations made during an expert seminar, including representatives from UNHCR, in June 2007. The report observed that: “ In addition to Afghans who are or continue to be in need of international protection, there are certain Afghans currently outside Afghanistan for whom return would not constitute a durable solution and would endanger their physical safety and well-being, given their extreme vulnerability and nature of their special needs. In the context of return to Afghanistan, extremely vulnerable cases can be divided into two broad categories: Against this background, there are Afghans for which UNHCR Afghanistan strongly advises that, at least temporarily, solutions be identified in countries of asylum and that exemptions to obligations to return are made on humanitarian grounds. This may be the case for Afghans who fall into the following categories. Groups of concern are (see upcoming UNHCR paper for details): THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 52. The applicant complained that his removal to Afghanistan would violate Article 3 of the Convention, which provides that: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 53. The Government contested that argument. A. Admissibility 54. The Court considers that the applicant ’ s complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions ( a ) The applicant ’ s submissions 55. The applicant acknowledged that his account of activities with Hizb ‑ i- Islami in Afghanistan had not been accepted by the domestic authorities, but he pointed out that they had accepted that, in 2006, he had been injured and left disabled with his right leg and penis amputated and his left leg and right hand seriously injured. The applicant also asserted that the domestic authorities had further accepted that he was single, that he had previously worked as a farmer and that he was not educated. The applicant also argued that his evidence relating to his family (that both of his parents had died, that he had no brothers and that he was not in contact with his two married sisters who were living with their own families) had not been explicitly rejected by the Immigration Judge. 56. Given the above facts, the applicant argued that his return to Afghanistan would violate Article 3 of the Convention in two ways. First, he asserted that disabled persons were at particular risk of violence in the armed conflict in Afghanistan, both because they would be unable to remove themselves from dangerous situations swiftly (as suggested by the AIT ’ s comments in the country guidance determination of GS (Article 15 (c) : Indiscriminate violence) Afghanistan CG [2009] UKAIT 00044 (see paragraphs 28 - 29 above)) and because they would be at greater risk of homelessness and thus more prone to being affected by the indiscriminate violence which occurs on the streets of Afghanistan. He argued that the Immigration Judge had barely considered the impact of this risk upon him and, in any event, had done so without reference to most of the background evidence that he now cited (see paragraphs 41 - 51 above). 57. Second, the applicant argued that whilst the difficulties faced by persons with disabilities in Afghanistan may not engage Article 3 if they had family support available to them, a person, like the applicant, without close family connections would suffer the full consequences of the discrimination against, and ignorance surrounding, persons with disabilities (see the AIHRC report at paragraph 47 above). He argued that, in the struggle for scarce accommodation and given the length of time that he had been outside of Afghanistan, there was a real risk he would be left seriously disadvantaged and in conditions analogous to those set out in M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 263, 2 1 January 2011. Thus he contended that he would be left living in the street, without resources or access to sanitary facilities, and without any means of providing for his essential needs. He submitted that the domestic authorities had failed to properly consider that, as a victim of an armed conflict without family members, he was plainly a member of a particularly underprivileged and vulnerable population group in need of special protection ( see M.S.S, cited above, § 251 ). In that regard, he asserted that the Immigration Judge ’ s statement that he “would have certain disadvantages greater than others by reason of his disability” but that “he would not be alone ” because persons with such disadvantages were continuing to exist in Afghanistan (see paragraph 19 above) did not begin to properly consider the issue of his vulnerability. 58. The applicant further argued that his case could be distinguished from N. v. the United Kingdom [GC], no. 26565/05, 27 May 2008 because it did not involve a naturally occurring illness or merely the consequences of a serious medical condition and the lack of sufficient treatment available for it in Afghanistan. He submitted that the shortages of accommodation and welfare arrangements in Afghanistan were not part of the vicissitudes of life but were the legacy of the armed conflicts that had long affected the country. 59. In that regard, he stated that one of the effects of the lengthy conflict was the rise in the number of persons with disabilities in Afghanistan. He also argued that the armed conflict was deteriorating; that there had been a 20% increase in civilian casualties; and that Nangarhar province, from where the applicant originated, had become a major recipient of internally displaced persons (see the United States 2011 Country Report on Human Rights Practices - Afghanistan at paragraph 49 above). In light of those facts, he argued that there were serious grounds for believing that, as a disabled man, he would be involved in a competition for scarce resources within which he would be ill-equipped to succeed. He argued that, unlike many returnees, due to his disabilities, there was no real chance that he would find work in light of the evidence that the unemployment rate among people with disabilities was extremely high (see the Landmine and Cluster Munition Monitor report at paragraph 50 above). 60. Furthermore, the applicant argued that if the obligations to respect the inherent dignity of disabled persons which were set out in the Convention on the Rights of Persons with Disabilities (see paragraphs 36 - 40 above) were interpreted to inform the scope of Article 3 of the Convention, there was a real risk that he would face inhuman or degrading treatment upon return to Afghanistan. He submitted that the Afghan Government were unable to ensure access to services for the disabled and that a seminar in which UNHCR had participated had recommended that persons with physically disabilities who lacked family members were one class of person who should be eligible for protection outside the scope of the 1951 Refugee Convention (see paragraph 51 above). Additionally, he argued that UNHCR had confirmed in their December 2010 UNHCR Guidelines that Afghans would not be able to lead a life without undue hardship in areas without social support or family networks (see paragraph 44 above). 61. Finally, the applicant argued that the Secretary of State ’ s failure to wait for a medical report about the applicant ’ s injuries when making the first instance decision on the applicant ’ s asylum claim in September 2010 (see paragraph 13 above), amounted to a breach of the obligation under Article 3 to conduct a rigorous scrutiny of an individual ’ s claim that his deportation to a third country would expose that individual to treatment prohibited by Article 3 (see, mutatis mutandis, R.C. v. Sweden, no. 41827/07, 9 March 2010 and Jabari v. Turkey, no. 40035/98, § 39, ECHR 2000 ‑ VIII ). ( b ) The Government ’ s submissions 62. The Government argued that the applicant had not provided any evidence to support his assertion that, by reason of his disabilities, there were substantial grounds to believe that there was a real risk that he would be subjected to treatment contrary to Article 3 in the event of his return to Afghanistan. 63. In that regard, they contended that there was no support to be found in any of the country guidance cases (see paragraphs 27 - 32 above) or the most recent background evidence from UNHCR and UNAMA (see paragraphs 41 - 45 above) to suggest that disabled persons were at an enhanced risk of ill- treatment from indiscriminate violence. 64. They further argued that, whilst in the country guidance case of GS (see paragraphs 28 - 29 above) the AIT had speculatively contemplated the possibility that there might be a sufficient threat to disabled persons to engage the provisions of the Qualification Direction (see paragraphs 33 - 34 above), there was in reality no support for the suggestion that disabled persons were more likely to be killed or wounded by a suicide bomber if they were less able than others to run away from such an attacker. Furthermore, they submitted that there was no evidence that snipers were targeting civilians; that disabled person were less likely to be able to evade such attacks; or that disabled persons were being killed by reason of any relative inability to avoid the effects of violence. 65. In response to the applicant ’ s claim (see paragraph 57 above) that the conditions that he would face in Afghanistan were analogous to those set out in M.S.S v. Belgium and Greece, cited above, the Government argued that the case had no relevance to the present application. They asserted that, critical to the Court ’ s conclusions in M.S.S. had been the failure of the Greek authorities to make available the required conditions for the reception of an asylum seeker. The Court ’ s findings had been based on the positive obligations (derived from the European Reception Directive and their own legislation) of the Greek authorities to provide accommodation and decent material conditions to impoverished asylum seekers and, in that regard, the Court had attached considerable importance to the applicant ’ s status as an asylum seeker and, as such, a member of a particularly underprivileged and vulnerable population group in need of special protection. To the contrary, the Government argued that, so far as the applicant relied upon the general provision made for persons with disabilities in Afghanistan and the difficulties faced by those without family support there, the applicable standard was analogous to that applied in N. v. the United Kingdom, cited above. They therefore argued that, where the feared consequences of return were as a result of claimed deficiencies in health and social care, very exceptional circumstances would need to be established. 66. The Government refuted the applicant ’ s submission (see paragraph 55 above) that the Immigration Judge had accepted that the applicant had no contact with his family members in Afghanistan. They noted that the Immigration Judge had explicitly accepted that the applicant was an Afghan national who had come from Nangarhar province and had spent the early years of his life as a farmer; that he was single; and that he had suffered severe injuries. However, the Immigration Judge had stated that he could not be satisfied as to any other details of the applicant ’ s case (see paragraph 17 above) and whilst the Government were prepared to accept that both of the applicant ’ s parents were now deceased, they were not prepared to accept that he was not in contact with his remaining family members in Afghanistan. In that regard, the Government noted that the applicant had failed to submit any evidence to support that claim. In any event, there was no reason why he could not make contact with his sisters upon his return to Afghanistan. 67. The Government reiterated the Immigration Judge ’ s findings (see paragraphs 19 - 20 above) that there was no reason why the applicant would not continue to receive the assistance in Afghanistan that he had apparently received for three to four years there after he had incurred his injuries and before he had travelled to the United Kingdom. Furthermore, in view of the numbers of disabled people in Afghanistan and the lack of supporting evidence demonstrating that those people were living in a state of extreme degrading or inhuman conditions by virtue of government inaction, they argued that there remained no substantial grounds to believe that the applicant would be at real risk of treatment contrary to Article 3 of the Convention, particularly in light of the fact that the applicant had family in Afghanistan. 68. Finally, in response to the applicant ’ s claims regarding the consideration of his asylum claim in the absence of a medical report on his injuries (see paragraph 61 above), the Government pointed out that no medical report had ever been produced by the applicant at any stage throughout the proceedings whether on appeal before the First-tier Tribunal or in the course of the present application before the Court. The Government further noted that the claimed relevance of such a medical report was to establish whether or not the applicant ’ s injuries were consistent with his account of how he had received them and that, in any event, the Immigration Judge at the First-tier Tribunal had accepted the applicant ’ s claims in that regard without a medical report. The Government therefore argued that the applicant had failed to explain what further relevance a medical report might have had to the applicant ’ s claims. 2. The Court ’ s assessment (a) General principles regarding Article 3 and expulsion 69. It is well-established that expulsion by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if deported, faces a real risk of being subjected to treatment contrary to Article 3. In such a case, Article 3 implies an obligation not to deport the person in question to that country. Article 3 is absolute and it is not possible to weigh the risk of ill-treatment against the reasons put forward for the expulsion ( Saadi v. Italy [GC], no. 37201/06, §§ 125 and 138, ECHR 2008-...). 70. The assessment whether there are substantial grounds for believing that the applicant faces such a real risk inevitably requires that the Court assess the conditions in the receiving country against the standards of Article 3 of the Convention ( Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 67, ECHR 2005-I). These standards imply that the ill-treatment the applicant alleges he 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 is relative, depending on all the circumstances of the case ( Hilal v. the United Kingdom, no. 45276/99, § 60, ECHR 2001-II). Owing to the absolute character of the right guaranteed, Article 3 of the Convention may also apply where the danger emanates from persons or groups of persons who are not public officials. However, it must be shown that the risk is real and that the authorities of the receiving State are not able to obviate the risk by providing appropriate protection ( H.L.R. v. France, judgment of 29 April 1997, Reports 1997-III, § 40). 71. The assessment of the existence of a real risk must necessarily be a rigorous one (see Chahal v. the United Kingdom, judgment of 15 November 1996, Reports 1996-V, § 96; and Saadi v. Italy, cited above, § 128). 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 would be exposed to a real risk of being subjected to treatment contrary to Article 3 (see N. v. Finland, no. 38885/02, § 167, 26 July 2005). The Court acknowledges that, owing to the special situation in which asylum seekers often find themselves, it is frequently necessary to give them the benefit of the doubt when it comes to assessing the credibility of their statements and the documents submitted in support thereof. However, when information is presented which gives strong reasons to question the veracity of an asylum seeker ’ s submissions, the individual must provide a satisfactory explanation for the alleged discrepancies (see, among other authorities, Collins and Akasiebie v. Sweden (dec.), no. 23944/05, 8 March 2007 and R.C. v. Sweden, no. 41827/07, 9 March 2010). 72. In order to determine whether there is a real risk of ill-treatment in this case, the Court must examine the foreseeable consequences of sending the applicant to Afghanistan, bearing in mind the general situation there and his personal circumstances (see Vilvarajah and Others v. the United Kingdom, 30 October 1991, § 108 in fine, Series A no. 215). If an applicant has not yet been extradited or deported when the Court examines the case, the relevant time will be that of the proceedings before the Court (see Saadi v. Italy, cited above, § 133). A full and ex nunc assessment is called for as the situation in a country of destination may change over the course of time. Even though the historical position is of interest insofar as it may shed light on the current situation and its likely evolution, it is the present conditions which are decisive and it is therefore necessary to take into account information that has come to light since the final decision taken by the domestic authorities (see Salah Sheekh v. the Netherlands, no. 1948/04, § 136, 11 January 2007 ). 73. The Court has held that the mere possibility of ill-treatment on account of an unsettled situation in the receiving country does not in itself give rise to a breach of Article 3 (see Vilvarajah and Others v. the United Kingdom, cited above, § 111, and Saadi v. Italy, cited above, § 131) and that, where the sources available to it describe a general situation, an applicant ’ s specific allegations in a particular case require corroboration by other evidence (see Mamatkulov and Askarov v. Turkey, cited above, § 73; and Saadi v. Italy, cited above, § 131). The Court has never excluded the possibility that a general situation of violence in a country of destination will be of a sufficient level of intensity as to entail that any removal to it would necessarily breach Article 3 of the Convention. Nevertheless, the Court would adopt such an approach only in the most extreme cases of general violence, where there was a real risk of ill-treatment simply by virtue of an individual being exposed to such violence on return (see NA. v. the United Kingdom, no. 25904/07, § 115, 17 July 2008, and Sufi and Elmi v. the United Kingdom, nos. 8319/07 and 11449/07, § 218 and § 248, 28 June 2011 ). (b) The Court ’ s case-law in respect of Article 3 and humanitarian conditions 74. In Salah Sheekh v. the Netherlands, cited above, the Court held that socio-economic and humanitarian conditions in a country of return did not necessarily have a bearing, and certainly not a decisive bearing, on the question of whether the persons concerned would face a real risk of ill ‑ treatment within the meaning of Article 3 in those areas ( § 141). 75. However, in N. v. the United Kingdom, cited above, the Court held that although the Convention was essentially directed at the protection of civil and political rights, the fundamental importance of Article 3 meant that it was necessary for the Court to retain a degree of flexibility to prevent expulsion in very exceptional cases. Noting that Article 3 did not place an obligation on Contracting States to alleviate disparities in the availability of medical treatment in different States through the provision of free and unlimited health care to all aliens without a right to stay within their jurisdictions, the Court nevertheless held that humanitarian conditions would give rise to a breach of Article 3 of the Convention in very exceptional cases where the humanitarian grounds against removal were compelling ( § 42). 76. In M.S.S. v. Belgium and Greece, cited above, the Court stated that it had not excluded the possibility that the responsibility of the State under Article 3 might be engaged in respect of treatment where an applicant, who was wholly dependent on State support, found himself faced with official indifference in a situation of serious deprivation or want incompatible with human dignity ( § 253). In that case, the applicant, an asylum seeker, and as such “ a member of a particularly underprivileged and vulnerable population group in need of special protection ” had spent months living in a state of the most extreme poverty, unable to cater for his most basic needs: food, hygiene and a place to live. Added to that, the Court noted the applicant ’ s ever-present fear of being attacked and robbed and the total lack of any likelihood of his situation improving ( § 254). It held that the conditions in which the applicant was living reached the Article 3 threshold and found Greece to be responsible for the breach of that Article due to the inaction of the Greek authorities despite their positive obligations under both the European Reception Directive and domestic legislation regarding the provision of accommodation and decent material conditions to asylum seekers ( § 264). The Court also found Belgium to be in breach of Article 3 because, inter alia, it had transferred the applicant to Greece and thus knowingly exposed him to living conditions which amounted to degrading treatment ( § 367). 77. In Sufi and Elmi v. the United Kingdom, cited above, the Court, in considering, inter alia, whether or not the applicants would be at risk of ill ‑ treatment on account of the dire humanitarian conditions in refugee camps in southern and central Somalia, applied the test adopted in M.S.S, which required it to have regard to an applicant ’ s ability to cater for his most basic needs, such as food, hygiene and shelter, his vulnerability to ill ‑ treatment and the prospect of his situation improving within a reasonable time-frame ( §§ 282-283). In coming to that decision, the Court had regard to the fact that the humanitarian crisis in Somalia was predominately due to the direct and indirect actions of the parties of the conflict; noted that all of the evidence indicated that the parties to the conflict had employed indiscriminate methods of warfare in densely populated urban areas with no regard to the safety of the civilian population; and considered that the crisis had been greatly exacerbated by al-Shabaab ’ s refusal to permit international aid agencies to operate in the areas under its control, despite the fact that between a third and a half of all Somalis were living in a situation of serious deprivation. ( c ) Application to the facts of the case 78. The Court observes at the outset that, although the applicant applied for, and was refused, asylum in the United Kingdom, he has not complained before the Court that his removal to Afghanistan would put him at risk of deliberate ill-treatment from any party, either on account of his past activities with Hizb-i-Islami or for any other reason. 79. The Court further observes that the applicant has not claimed that the levels of violence in Afghanistan are such that any removal there would necessarily breach Article 3 of the Convention. Indeed, the applicant did not dispute the findings of the AIT ’ s previous country guidance determination GS (set out at paragraphs 28 - 29 above) that there was not in Afghanistan such a high level of indiscriminate violence that substantial grounds existed for believing that a civilian would, solely by being present there, face a real risk which threatened the civilian ’ s life or person. 80. Instead the applicant alleged that he would be at risk in Afghanistan on two grounds linked to his disabilities. First, he asserted that he would be particularly vulnerable to violence and at increased risk of further injury or death in the ongoing armed conflict in Afghanistan. Second, he contended that, due to his lack of family support in Afghanistan, he would face living conditions and discrimination there which would breach Article 3 of the Convention. 81. Before examining these grounds, it is necessary both to address the applicant ’ s complaints regarding the domestic authorities ’ failure to wait for a medical report (see paragraph 61 above) and to clarify the factual basis for his complaint. 82. First, in respect of his complaint that the domestic authorities failed to await a medical report, the Court is unable to find that, in the circumstances of the present case, such a failure demonstrates a breach of Article 3 of the Convention. In that regard, besides the applicant ’ s failure to have ever submitted a medical report in any event, the Court notes that, during the domestic proceedings, the First-tier Tribunal accepted both the extent of the applicant ’ s injuries and the manner in which the applicant claimed that they had been caused (see paragraph 17 above). Thus, a medical report was not required in his case for the domestic authorities to have complied with their duty to ascertain all relevant facts in the applicant ’ s case (see R.C. v. Sweden, no. 41827/07, § 53, 9 March 2010 ). Second, in respect of the facts of the applicant ’ s claim, the Court notes that it is not disputed that the applicant is disabled and that his lower right leg and penis have been amputated and that his left leg and right hand have been seriously injured. Furthermore, the parties agreed that the applicant is a single man of Pashtun ethnicity, that both of his parents are deceased, that he had two sisters in Afghanistan and that he spent the early years of his life as a farmer in Nangarhar province. 83. However, the parties disputed whether any support would be available to the applicant in Afghanistan. The Government maintained that the applicant ’ s claim not to have any contact with his sisters in Afghanistan had been implicitly rejected by the Immigration Judge and that he had failed to submit any evidence to support that claim. In any event, he had not provided any reason why he could not make contact with his sisters upon his return to Afghanistan. By contrast, the applicant did not accept that this part of his claim had been rejected by the Immigration Judge. He continued to claim, as he had done the domestic proceedings, that there was no one available to care for him in Afghanistan and that, although he had two sisters in the country, they were both married and living with their own families. In any event, he no longer had any contact with either of them. The Court considers it unnecessary to determine what the Immigration Judge ’ s findings in respect of the applicant ’ s sisters were and, in particular, whether or not the Immigration Judge implicitly rejected the applicant ’ s assertions in this regard. The fact is that, neither before the national authorities nor before the Court, has the applicant given any reason why, if he is returned to Afghanistan, he would not be able to make contact with them and seek their support. 84. The Court will therefore examine each of the applicant ’ s grounds of complaint on the basis that he will be returning, as a disabled man with an amputated lower right leg and a false limb, to Afghanistan, where members of his family continue to reside. i. Enhanced risk of violence 85. In relation to the applicant ’ s first ground that he would be at greater risk of violence in Afghanistan due to his disability, the Court notes that the applicant has relied significantly upon the brief comments made by the AIT in GS (set out at paragraphs 28 - 29 above). In that case, the AIT, when explaining that there may be categories of people who may be able to establish an enhanced risk of indiscriminate violence in Afghanistan, gave as possible examples both those who would be perceived to be “ collaborators ” and disabled persons. However, the Court does not agree that the AIT ’ s comments alone can give substantive support to the applicant ’ s claim. Indeed, the AIT clarified in the same paragraph of that determination that they were unable to give a list of risk categories or to state that any particular occupation or status would put a person into such a category in view of the “paucity of the evidence” before them. To the contrary, the AIT merely recorded that there “may be such categories” dependent upon the evidence available. The AIT emphasised that their comments should not be taken to indicate that the disabled were members of enhanced risk groups, without proof to that effect 86. The Court considers it to be significant that the applicant has failed to adduce any additional substantive evidence to support his claim that disabled persons are per se at greater risk of violence, as opposed to other difficulties such as discrimination and poor humanitarian conditions, than the general Afghan population. The evidence from, inter alia, UNHCR, UNAMA, the UNCESCR, the AIHRC, and the United States of America State Department (see paragraphs 41 - 49 above) makes no reference to disabled persons being at greater risk of violence, ill-treatment or attacks in Afghanistan. 87. In the absence of any contrary evidence, the Court therefore concludes that this claim has to be considered to be to a large extent speculative and does not accept that the applicant has demonstrated that, as a result of his disabilities, he would be subjected to an enhanced risk of indiscriminate violence in Afghanistan such as to engage Article 3 of the Convention. ii. Living conditions 88. The applicant argued that the circumstances that he will face in Afghanistan will amount to a breach of Article 3 of the Convention as a result of the poor provision for and ignorance surrounding persons with disabilities there. He argued that his case could be distinguished from N. v. the United Kingdom, cited above, because it did not involve a naturally occurring illness or merely the consequences of the lack of sufficient treatment available in Afghanistan. He argued that the Court should consider his case in light of M.S.S. v. Belgium and Greece, cited above, and his inability to cater for his basic needs to Afghanistan. 89. The Court finds that the principles of N. v. the United Kingdom should apply to the circumstances of the present case for the following reasons. First, the Court recalls that N. concerned the removal of an HIV ‑ positive applicant to Uganda, where her lifespan was likely to be reduced on account of the fact that the treatment facilities there were inferior to those available in the United Kingdom. In reaching its conclusions, the Court noted that the alleged future harm would emanate not from the intentional acts or omission of public authorities or non-State bodies but from a naturally occurring illness and the lack of sufficient resources to deal with it in the receiving country. The Court also stated that Article 3 did not place an obligation on the Contracting State to alleviate disparities in the availability of medical treatment between the Contracting State and the country of origin through the provision of free and unlimited health care to all aliens without a right to stay within its jurisdiction ( ibid, § 44). The Court acknowledges that, in the present case, the applicant ’ s disability cannot be considered to be a “naturally” occurring illness and does not require medical treatment. Nevertheless, it is considered to be significant that in both scenarios the future harm would emanate from a lack of sufficient resources to provide either medical treatment or welfare provision rather than the intentional acts or omissions of the authorities of the receiving State. 90. Second, the Court considers that the present case can be distinguished from M.S.S. In that case, a fellow Contracting State, Greece, was found to be in violation of Article 3 of the Convention through its own inaction and its failure to comply with its positive obligations under both European and domestic legislation to provide reception facilities to asylum seekers. Central to the Court ’ s conclusion was its finding that the destitution of which the applicant in that case complained was linked to his status as an asylum seeker and to the fact that his asylum application had not yet been examined by the Greek authorities. The Court was also of the opinion that, had they examined the applicant ’ s asylum request promptly, the Greek authorities could have substantially alleviated his suffering. (see paragraph 262 of the judgment). By contrast, the present application concerns the living conditions and humanitarian situation in Afghanistan, a non ‑ Contracting State, which has no such similar positive obligations under European legislation and cannot be held accountable under the Convention for failures to provide adequate welfare assistance to persons with disabilities. In that regard, it is recalled that the Convention does not purport to be a means of requiring Contracting States to impose Convention standards on other States (see, as a recent authority, Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, § 141, 7 July 2011). 91. Third, although in Sufi and Elmi v. the United Kingdom, cited above, the Court followed the approach set out in M.S.S., this was because of the exceptional and extreme conditions prevailing in south and central Somalia. In particular, there was clear and extensive evidence before the Court that the humanitarian crisis in Somalia was predominately due to the direct and indirect actions of all parties to the conflict who had employed indiscriminate methods of warfare and had refused to permit international aid agencies to operate ( paragraph 282 of the Sufi and Elmi judgment ). On the current evidence available, the Court is not able to conclude that the situation in Afghanistan, albeit very serious as a result of ongoing conflict, is comparable to that of south and central Somalia. First, unlike Somalia, which has been without a functioning central Government since 1991, Afghanistan has a functioning central Government and functioning infrastructures remain in place. Second, Afghanistan, and in particular Kabul to where the applicant will be returned, remains under Government control, unlike the majority of south and central Somalia, which, since 2008, has been under the control of Islamic insurgents. Third, although UNHCR has observed that the humanitarian space in Afghanistan is declining in some areas as a result of the continuing instability (see paragraph 43 above), there remains a significant presence of international aid agencies in Afghanistan, unlike in Somalia where international aid agencies were refused permission to operate in multiple areas. Fourth, even though the difficulties and inadequacies in the provision for persons with disabilities in Afghanistan cannot be understated, it cannot be said that such problems are as a result of the deliberate actions or omissions of the Afghan authorities rather than attributable to a lack of resources. Indeed, the evidence suggests that the Afghan authorities are taking, albeit small, steps to improve provision for disabled persons by, for example, the National Disability Action Plan 2008-2011 (see paragraph 48 above), and the provision of financial support by the Ministry of Labour, Social Affairs, Martyrs, and the Disabled to 80,000 disabled persons in Afghanistan (see paragraph 49 above). The Court does not accept that the report of the Austrian Centre for Country of Origin and Asylum Research and Documentation (see above at paragraph 51 ) lends support to the applicant ’ s claim because that report was published in 2007 and the later December 2010 UNHCR Guidelines make no similar recommendations in relation to the return of disabled persons to Afghanistan. 92. The Court therefore considers that, in the circumstances of the present case where the problems facing the applicant would be largely as a result of inadequate social provisions through a want of resources, the approach adopted by the Court in N. v. the United Kingdom, cited above, is more appropriate. The Court will therefore need to determine whether or not the applicant ’ s case is a very exceptional one where the humanitarian grounds against removal are compelling. 93. Whilst full account must be taken of the significant hardship facing persons with disabilities in Afghanistan, including discrimination, a lack of employment opportunities and a scarcity of services (see paragraphs 45 - 51 above), it is of some relevance that the present applicant has family members who continue to live in Afghanistan. The applicant himself acknowledged in his submissions to the Court (see paragraph 57 above ) that the difficulties facing persons with disabilities in Afghanistan might not engage Article 3 if they had family support available to them. For the reasons set out above at paragraphs 83 - 84 the Court is unable to conclude that the applicant would not be able to contact his family members upon return to Afghanistan or that they would not provide him with some level of support or assistance upon arrival. In this regard, the Court is not therefore able to accept the applicant ’ s claim that he will be returning to Afghanistan and left destitute by reason of a total lack of support in that country. It is, in any event, of greater importance to the Court ’ s consideration of the applicant ’ s Article 3 complaint that the applicant remained in Afghanistan after he received his injuries in 2006 for four years until 2010 and was supported throughout that period, during which he also received medical treatment for his injuries. On the evidence before it, the Court is unable to conclude that the applicant ’ s disabilities have worsened since his departure from Afghanistan. Nor, on the general information before the Court, can it be found that the circumstances that would confront the applicant on return to Afghanistan would, to a determinative degree, be worse than those which he faced during that four - year period. Likewise, although the quality of the applicant ’ s life, already severely diminished by his disabled condition, will undoubtedly be negatively affected if he is removed from the United Kingdom to Afghanistan, that fact alone cannot be decisive (see N. v. the United Kingdom, cited above, §§ 50 and 51). 94. Finally, in addressing the applicant ’ s submission that, in circumstances such as those in the present case, the United Nations Convention of the Rights of Persons with Disabilities has to be read as informing the scope to be given to Article 3, the Court is mindful of the principle that the Convention does not apply in a vacuum but must be interpreted in harmony with the general principles of international law (see, mutatis mutandis, inter alia, Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, §§ 131-132, ECHR 2010 ). Nevertheless, for the foregoing reasons, even interpreting Article 3 of the Convention in harmony with the United Nations Convention of the Rights of Persons with Disabilities, the Court is unable to conclude that the high threshold set by Article 3 has been met in the applicant ’ s case. 95. In conclusion, the applicant ’ s case does not disclose very exceptional circumstances as referred to in the applicable case-law ( N. v. the United Kingdom, cited above ). Accordingly, the implementation of the decision to remove him to Afghanistan would not give rise to a violation of Article 3 of the Convention. II. RULE 39 OF THE RULES OF COURT 96. 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. 97. The Court considers it appropriate that the indication made to the Government under Rule 39 of the Rules of Court (see above § 4 ) should continue in force until the present judgment becomes final or until the Panel of the Grand Chamber of the Court accepts any request by one or both of the parties to refer the case to the Grand Chamber under Article 43 of the Convention. | The Court held that there would be no violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention if the applicant were removed to Afghanistan. It held in particular that the responsibility of Contracting States under Article 3 of the Convention could only be engaged in very exceptional cases of general violence where the humanitarian grounds against removal were compelling. In this case, the applicant neither complained before the Court that his removal to Afghanistan would put him at risk of deliberate ill-treatment from any party, nor that the levels of violence in Afghanistan were such as to entail a breach of Article 3. Furthermore, the applicant had failed to prove that his disability would put him at greater risk of violence than the general Afghan population. As lastly regards the foreseeable degradation of the applicant’s living conditions, even though the Court acknowledged that the quality of the applicant’s life would be negatively affected upon removal, this fact alone could not be decisive. |
309 | Prevention of terrorism | II. RELEVANT DOMESTIC LAW 19. Article 312 § 1 of the former Criminal Code (Law no. 765) reads as follows: “ A person who expressly praises or condones an act punishable by law as an offence or incites the population to break the law shall, on conviction, be liable to between six months ’ and two years ’ imprisonment and a heavy fine of from six thousand to thirty thousand Turkish liras. ” THE LAW I. ALLEGED VIOLATIONS OF ARTICLES 6 § 3 (b) AND 1 0 OF THE CONVENTION 20. The applicant complained of a violation of his right to freedom of expression and to impart and share information. He relied on Articles 10 and 11 of the Convention. The applicant further alleged that his defence rights had been violated as the first instance court had delivered its decision without giving him the opportunity to submit his defence on the merits and to reply to the allegations of the public prosecutor presented to the court. In this respect, he relied on Article 6 § 3 (b) of the Convention. 21. The Court, being the master of the characterisation to be given in law to the facts of the case, considers that the complaints under Articles 10 and 11 fall to be examined from the standpoint of Article 10 alone (see, Perihan and Mezopotamya Basın Yayın A.Ş. v. Turkey, no. 21377/03, § 43, 21 January 2014). Article 10 of the Convention reads as follows: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ... 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, [and] for the protection of the reputation or rights of others, ... ” Article 6 § 3 (b) of the Convention reads as follows: “3. Everyone charged with a criminal offence has the following minimum rights: ... (b) to have adequate time and the facilities for the preparation of his defence;” 22. The Government contested those arguments. A. Admissibility 23. The Government argued that the application had been introduced outside the six-month time-limit. In this respect, they stated that the Court of Cassation ’ s decision had been delivered on 5 June 2002, whereas the application was introduced to the Court on 8 January 2003, more than six months later. 24. The Court notes that the decision of the Court of Cassation was deposited with the registry of the first-instance court on 11 July 2002. It reiterates that where an applicant is not entitled to be served ex officio with a written copy of the final domestic decision and if he or she was represented by a lawyer during the domestic proceedings, as in the present case, the date on which the final domestic decision was deposited with the registry of the first-instance court should be taken as the starting-point under Article 35 § 1 of the Convention, being the latest date by which the applicant or his or her representative was definitively able to find out about the content of the final decision (see İpek v. Turkey (dec.), no. 39706/98, 7 November 2000, and Okul v. Turkey (dec.), no. 45358/99, 4 September 2003). Accordingly, in the present case the applicant lodged his application to the Court within the six ‑ month time-limit, as required by Article 35 § 1 of the Convention. The Government ’ s preliminary objection should therefore be dismissed. 25. The Court further notes that this part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. Alleged violation of Article 10 of the Convention 26. The applicant maintained under Article 10 of the Convention that his conviction under Article 312 § 1 of the former Criminal Code on account of certain pictures and other materials found in the party ’ s office had interfered with his right to freedom of expression. 27. The Government argued that the interference with the applicant ’ s right to freedom of expression had been in accordance with the law, had pursued a legitimate aim and had been necessary in a democratic society. In this respect they maintained that the applicant ’ s conviction had been based on Article 312 § 1 of the former Criminal Code. They further argued that the interference had been justified by the need to protect public order and to prevent crime as part of the fight against terrorism, since the materials found at HADEP ’ s office indicated the existence of a link between the applicant and the terrorist organisation PKK. The Government further considered that the interference had been proportionate to its aims, as the applicant had been sentenced to merely six months ’ imprisonment. 28. The applicant argued that the materials found in the party building did not contain any call for violence or any remarks inciting others to rebellion; thus, the penalty imposed did not pursue a legitimate aim and was not necessary in a democratic society. The applicant further maintained that, had the national courts intended to take proportionate measures, they could have imposed a judicial fine instead of imprisonment. 29. The Court notes at the outset that Article 10 of the Convention protects not only the substance of the ideas and information expressed, but also the form in which they are conveyed (see Oberschlick v. Austria (no. 1), 23 May 1991, § 57, Series A no. 204). In this respect, the wearing or displaying of symbols has also been held to fall within the spectrum of forms of “expression” within the meaning of Article 10 of the Convention. The Court held that the display of a symbol associated with a political movement or entity, like that of a flag, was capable of expressing identification with ideas or representing them and fell within the ambit of expression protected by Article 10 of the Convention (see Fáber v. Hungary, no. 40721/08, § 36, 24 July 2012). 30. The Court notes that the applicant denied any knowledge of the pictures and symbols and illegal publications and books found in his office and that the question therefore arises whether there was at all an interference with his exercise of his right to freedom of expression. In that respect, it observes that the applicant ’ s criminal conviction for the offence of praising and condoning acts punishable by law under Article 312 § 1 of the former Criminal Code was indisputably directed at activities falling within the scope of freedom of expression, as noted above, and that he was sanctioned for engaging in such activities, despite his denial of any knowledge of the materials. The Court considers that in such circumstances, the applicant ’ s conviction must be regarded as constituting an interference with his exercise of his right to freedom of expression. To hold otherwise would be tantamount to requiring him to acknowledge the acts of which he stood accused. It should be borne in mind in this respect that the right not to incriminate oneself, although not specifically mentioned in Article 6 of the Convention, is a generally recognised international standard which lies at the heart of the notion of a fair procedure under that provision (see, in the context of exhaustion of domestic remedies, Yılmaz and Kılıç v. Turkey, no. 68514/01, §§ 39-41, 17 July 2008; see also, in the context of civil proceedings, Stojanović v. Croatia, no. 23160/09, § 39, 19 September 2013). Moreover, not accepting that a criminal conviction constituted an interference, on the ground that an applicant denied any involvement in the acts at issue, would lock him in a vicious circle that would deprive him of the protection of the Convention. 31. The Court further notes that the interference was prescribed by law, namely Article 312 § 1 of the former Criminal Code. As to the legitimacy of the aims pursued, the Court observes that in the present case the national authorities sought to protect national security and to prevent disorder or crime. It therefore remains to be determined whether the interference complained of was “necessary in a democratic society”. 32. At this point, the Court recalls that it has examined complaints relating to similar issues to those in the present case and found a violation of Article 10 in a number of cases where it noted that the applicants ’ convictions for praising and condoning acts punishable by law, pertaining to the PKK, went beyond any notion of “necessary” restraint in a democratic society (see, among others, Feridun Yazar v. Turkey, no. 42713/98, 23 September 2004; Bahçeci and Turan v. Turkey, no. 33340/03, 16 June 2009; and Bülent Kaya v. Turkey, no. 52056/08, 22 October 2013). 33. Turning to the particular circumstances of the present case, the Court observes that the Istanbul Criminal Court convicted the applicant under Article 312 § 1 of the former Criminal Code on the ground that the display of symbols and pictures pertaining to the PKK and Mr Öcalan in the party building amounted to the offence of praising and condoning acts punishable by law. The Court notes that the applicant was prosecuted and convicted merely for keeping the aforementioned material in the party ’ s office, which was interpreted by the courts as an indication of respect and approval for the illegal organisation and its leader. The Court, however, considers that the applicant ’ s conduct could not be construed as support for unlawful acts committed by Mr Öcalan and the PKK or any approval in this regard inasmuch as neither in the domestic court decisions nor in the observations of the Government is there any indication that the material in question advocated violence, armed resistance or an uprising (see Gerger v. Turkey [GC], no. 24919/94, § 50, 8 July 1999, and contrast Halis Doğan v. Turkey, no. 75946/01, §§ 35 ‑ 38, 7 February 2006). 34. The Court further observes that it was not indicated in the reasoning of either the Istanbul Criminal Court ’ s or the Court of Cassation ’ s decisions whether they had examined the proportionality of the interference and the balancing of rights taking into account freedom of expression (see Öner and Türk v. Turkey, no. 51962/12, § 25, 31 March 2015). 35. In the light of the foregoing, the Court considers that the reasons given by the domestic courts for convicting and sentencing the applicant cannot be considered relevant and sufficient to justify the interference with his right to freedom of expression (see, among other authorities, Mouvement raëlien suisse v. Switzerland [GC], no. 16354/06, § 48, ECHR 2012 (extracts), and Animal Defenders International v. the United Kingdom [GC], no. 48876/08, § 100, ECHR 2013 (extracts) ). 36. The Court further reiterates that the nature and severity of the penalties imposed are also factors to be taken into account when assessing the proportionality of the interference (see, inter alia, Başkaya and Okçuoğlu v. Turkey [GC], nos. 23536/94 and 24408/94, § 66, ECHR 1999 ‑ IV). In this respect the Court notes the severity of the penalty imposed on the applicant, which is six months ’ imprisonment. 37. Having regard to the above considerations, the Court concludes that, in the circumstances of the present case, the applicant ’ s conviction was disproportionate to the aims pursued and accordingly not “necessary in a democratic society”. There has therefore been a violation of Article 10 of the Convention. 2. Alleged violation of Article 6 § 3(b), in conjunction with Article 6 §1 38. The applicant alleged under Article 6 § 3 (b) of the Convention that the Istanbul Criminal Court had convicted him at the second hearing in absentia after hearing the public prosecutor ’ s opinion on the merits, thus depriving him of the opportunity to put forward his counter-arguments to the opinion of the public prosecutor. 39. The Government contested these arguments. 40. The Court considers that this complaint should be examined under Article 6 § 3(b), in conjunction with Article 6 § 1. Having regard to the facts of the case, the submissions of the parties and its finding of a violation of Article 10 of the Convention above ( paragraph 3 7), the Court considers that there is no need to make a separate ruling on the applicant ’ s complaint under this head (see, Yalçın Küçük v. Turkey (no. 3), no. 71353/01, § 40, 22 April 2008, and Kamil Uzun v. Turkey, no. 37410/97, § 64, 10 May 2007 ). II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 41. The applicant complained under Article 6 § 1 of the Convention that he had not been duly reminded of his rights under Article 135 (3) of the former Code of Criminal Procedure to request a lawyer during police custody and that he had not been provided with the assistance of a lawyer during his questioning at the Istanbul police headquarters, by the public prosecutor or before the criminal court. He further alleged under Article 6 § 3 (d) of the Convention that the public prosecutor and the first ‑ instance court had failed to conduct an additional investigation ( tevsi-i tahkikat ) in the case or to collect evidence or summon witnesses in his favour. Lastly, the applicant complained, under Article 14 of the Convention, that his conviction constituted discrimination on the ground of his Kurdish ethnic origin. 42. Having examined the material submitted to it, the Court finds that these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. 43. It follows that this part of the application is manifestly ill ‑ founded and must be declared inadmissible pursuant to Article 35 §§ 3 and 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 44. 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 45. The applicant claimed 24,000 Turkish liras (TRY – approximately 7,270 euros (EUR) ) and TRY 50,000 (approximately EUR 15,145 ) in respect of pecuniary and non-pecuniary damage respectively. 46. The Government submitted that the amounts claimed in respect of pecuniary and non-pecuniary damage were unsubstantiated. 47. Having regard to the applicant ’ s failure to submit to the Court any documents in support of his claim for pecuniary damage, the Court rejects the applicant ’ s claim under this head. On the other hand, it considers that the applicant suffered non ‑ pecuniary damage which cannot be compensated solely by the finding of a violation of Article 10. Ruling on an equitable basis, the Court awards the applicant EUR 12 ,500 in respect of non ‑ pecuniary damage. B. Costs and expenses 48. The applicant claimed TRY 5, 100 (approximately EUR 1, 545 ) for the costs and expenses incurred before the domestic courts and TRY 12,125 (approximately EUR 3,673 ) before the Court as well as TRY 3,200 (approximately EUR 970 ) for translation costs. In support of his claims, the applicant submitted a legal fees agreement concluded with his lawyer demonstrating that he should pay TRY 12, 125 ( approximately EUR 3,673 ) to his representative. The applicant further refers to the Istanbul Bar Association ’ s scale of fees in respect of legal representation before the Court. 49. The Government contested these claims. 50. As regards costs and expenses, the Court reiterates that 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, in particular the legal fees agreement concluded between the applicant and his representative (compare with Murat Vural v. Turkey, no. 9540/07, § 89, 21 October 2014) and the above criteria, the Court considers it reasonable to award the applicant EUR 3,200 under this head. C. Default interest 51. 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 (right to freedom of expression) of the Convention, finding that the applicant’s conviction had been disproportionate to the aims pursued, namely the need to protect public order and to prevent crime as part of the fight against terrorism. It noted, in particular, that although the applicant had denied any knowledge of the material found in his office, his conviction constituted an interference with his rights under Article 10. Moreover, the reasons given by the Turkish courts for convicting and sentencing the applicant could not be considered relevant and sufficient to justify the interference with his right to freedom of expression. In particular, the applicant’s conduct could not be construed as support for unlawful acts and there was no indication that the material in question advocated violence, armed resistance or an uprising. |
311 | Prevention of terrorism | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Criminal Code (Law no. 765, repealed on 1 June 2005 ) 30. At the time of the events at issue, Article 169 of the Criminal Code, which is no longer in force, provided: “ Any person who, knowing that an armed gang or organisation is illegal, assists it, harbours its members, provides it with food, weapons and ammunition or clothes or facilitates its operations in any manner whatsoever shall be sentenced to no less than three and no more than five years ’ heavy imprisonment ...” B. Detention in police custody and judicial review of such detention 31. Section 9(a) of the State Security Courts Act (Law no. 2845), which is no longer in force, provided that the offences under, inter alia, Article 169 of the Criminal Code fell within the exclusive jurisdiction of those courts. 32. At the material time, section 16 provided : “Any person arrested in connection with an offence within the jurisdiction of State Security Courts shall be brought before a judge and questioned within forty-eight hours at the latest, not including the time needed to convey the detainee to the judge. If an offence has been committed jointly by three or more persons, this period may be extended for up to four days by written order of the public prosecutor owing to difficulties in collecting evidence or to the number of perpetrators, or for similar reasons. If the investigation is not concluded within that period, it may be extended for up to seven days at the request of the public prosecutor and by the decision of the judge. The period of seven days referred to in the second paragraph may be extended for up to ten days at the request of the public prosecutor and by the decision of the judge in respect of persons arrested in regions where a state of emergency has been declared in accordance with Article 120 of the Constitution. ...” 33. Article 128 § 4 of the Code of Criminal Procedure (Law no. 1412 repealed on 1 June 2005) in force at the material time provided that any person who was arrested, or whose police custody period was extended on the order of a public prosecutor, was entitled to challenge that measure before the appropriate judge with a view to securing his or her immediate release. The judge had to rule on the matter within twenty-four hours following an examination based on the case file, without holding a hearing. C. Compensation for unlawful detention 34. The relevant domestic law and practice under Law no. 466 on the payment of compensation to persons unlawfully arrested or detained ( “the Unlawful Detention (Compensation) Act”), which is no longer in force, may be found in Adırbelli and Others v. Turkey (no. 20775/03, § 18, 2 December 2008). D. Constitution 35. At the material time the relevant provisions of the Constitution read as follows: Article 3 “ 1. The State of Turkey constitutes with its territory and nation, an indivisible whole. The official language is Turkish.” Article 14 “ 1. The rights and freedoms set out in the Constitution may not be exercised with a view to undermining the territorial integrity of the State, the unity of the nation or the democratic and secular Republic founded on human rights. No provision of this Constitution shall be interpreted in a manner that would grant the State or individuals the right to engage in activities intended to destroy the fundamental rights and freedoms embodied in the Constitution or to restrict them beyond what is permitted by the Constitution. ... ” Article 42 “No one may be deprived of the right to instruction and education. ... “No language other than Turkish shall be taught as a mother tongue to Turkish citizens at any institutions of training or education. Foreign languages to be taught in institutions of training and education and the rules to be followed by schools conducting training and education in a foreign language shall be determined by law. The provisions of international treaties are reserved. ” Article 74 “Citizens and foreigners resident in Turkey, with the condition of observing the principle of reciprocity, have the right to apply in writing to the competent authorities and to the Grand National Assembly of Turkey with regard to requests and complaints concerning themselves or the public.. .” E. Teaching of the Kurdish language 36. At the time of the events in question, domestic law did not provide for the teaching of or in the Kurdish language at any level of education in public or private institutions. On 3 August 2002 the Foreign Language Education and Teaching Act (Law no. 2923 of 14 October 1983) was amended by Law no. 4771 with a view to regulating the principles of education and training of citizens of Turkey in the different languages and dialects traditionally used in daily life. The title of the legislation in question was changed to the “Foreign Language Education and Teaching and the Learning of Different Languages and Dialects used by Turkish Citizens Act ”. 37. On 30 July 2003 an amendment was made to the second sentence of section 2(a) of Law no. 2923 with a view to enabling the opening of private courses for the teaching of the different languages and dialects used by citizens of Turkey. 38. The Regulation on Foreign Language Education and Training was issued on 31 May 2006 by the Ministry of Education in order to regulate the principles of teaching foreign languages at the public and private schools affiliated to the Ministry. Moreover, by decisions dated 25 June 2012, 7 September 2012 and 23 January 2014 the Board of Education and Training of the Ministry of Education added “living languages and dialects (Kurdish language)” to the weekly timetable of primary and secondary schools as an elective subject. 39. Section 2 of Law no. 2923 was amended on 2 March 2014 by Law no. 6529 with a view to facilitating the opening of private schools to provide education and training in a language or dialect traditionally used in daily life by citizens of Turkey. In line with this amendment, on 5 July 2014 the Regulation on Foreign Language Education and Training was also amended to enable education and training in a language or dialect traditionally used by citizens of Turkey in their daily lives in private schools. THE LAW I. ALLEGED VIOLATIONS OF ARTICLE 5 OF THE CONVENTION 40. The applicants complained under Article 5 §§ 2, 3 and 4 of the Convention that the authorities had failed to inform them of the reasons for their arrest, that they had not been brought promptly before a judge, and that there had not been any effective remedies to challenge the lawfulness of their arrest and detention. They also complained under Article 5 § 5 that they had had no right to compensation under domestic law in respect of those complaints. The relevant paragraphs of Article 5 provide as follows: Article 5 “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... 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 shall have an enforceable right to compensation.” A. Admissibility 1. Failure to exhaust domestic remedies 41. The Government asked the Court to dismiss the applicants ’ complaints under Article 5 §§ 4 and 5 of the Convention for failure to comply with the requirement of exhaustion of domestic remedies under Article 35 § 1. They maintained that the applicants could have sought compensation under the Unlawful Detention (Compensation) Act ( Law no. 466 ). 42. The applicants rejected the Government ’ s arguments. In this connection, they submitted a copy of a court decision concerning a person who had been arrested and taken into custody at the same time as them and with respect to the same events, whose claim for compensation under Law no. 466 was dismissed by the domestic court. 43. The Court considers that the Government ’ s objection is inextricably linked to the substance of the applicants ’ complaints under Article 5 §§ 4 and 5 of the Convention. It follows that this issue should be joined to the merits of those complaints (see, for instance, Öcalan v. Turkey (dec.), no. 46221/99, 14 December 2000; Süleyman Erdem v. Turkey, no. 49574/99, § 28, 19 September 2006; and Elğay v. Turkey, no. 18992/03, § 26, 20 January 2009). 2. Other admissibility issues (a) Article 5 § 2 of the Convention 44. The applicants complained under Article 5 § 2 that the authorities had failed to inform them promptly of the reasons for their arrest. 45. The Government argued that the applicants had been promptly informed of the reasons for their arrest. 46. The Court notes that the general principles governing the elementary safeguard embodied in Article 5 § 2 of the Convention were set out in the case of Fox, Campbell and Hartley v. the United Kingdom (30 August 1990, § 40, Series A no. 182). 47. The Court observes that the search and seizure reports dated 13 January 2002, which were signed by the applicants, clearly indicated that a search warrant had been issued by the Istanbul State Security Court on account of their petitions requesting education in Kurdish for their children, and that the public prosecutor at the Istanbul State Security Court had ordered their arrest in order to question them in relation to those petitions. The Court stresses that none of the applicants claimed that they were unable to fully understand the content of the search and seizure reports, which gave a fairly precise indication as to why they were being arrested. 48. The Court also notes that subsequent to their arrest at their homes, the applicants were taken to the Istanbul Security Directorate for questioning. According to the interview records, which also bore their signatures, the applicants were asked specific questions relating to the petitions and their suspected affiliation with the PKK, with the assistance of an interpreter as needed (see paragraph 13 above). The Court observes that only three of the applicants were assisted by an interpreter during police questioning, whereas more applicants requested such assistance during their subsequent questioning by the public prosecutor and judge at the Istanbul State Security Court (see paragraphs 18 and 19 above). Be that as it may, in the absence of any allegations from any of the applicants that they were denied the assistance of an interpreter before the police despite their requests, the Court is satisfied that all applicants sufficiently understood the subject matter of the police questioning, which once again clearly indicated the suspicions against them. 49. Having regard to the foregoing, and bearing in mind that Article 5 § 2 does not require that reasons for an arrest be given in any particular form, the Court concludes that the applicants must be deemed to have been aware of the reasons of their arrest at the time of or shortly after their arrest (see, for example, Kerr v. the United Kingdom (dec.), no. 40451/98, 7 December 1999; Dikme v. Turkey, no. 20869/92, § 56, ECHR 2000 ‑ VIII; and Süleyman Erdem, cited above, § 43). It follows that this part of the application should be rejected as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention. ( b ) The remaining complaints under Article 5 of the Convention 50. The Court notes that the applicants ’ complaints under Article 5 §§ 3, 4 and 5 of the Convention are not manifestly ill ‑ founded within the meaning of Article 35 § 3 of the Convention. It also notes that these complaints are not inadmissible on any other grounds. They must therefore be declared admissible. B. Merits 1. Article 5 § 3 of the Convention 51. The applicants complained under Article 5 § 3 of the Convention that they had not been brought promptly before a judge in connection with their detention in police custody between 13 and 17 January 2002. 52. The Government submitted that the applicants ’ allegation under this head was ill-founded as they had been brought promptly before a judge following their arrest. 53. The Court reiterates the importance of the guarantees afforded by Article 5 § 3 to an arrested person (see, among other authorities, Medvedyev and Others v. France [GC], no. 3394/03, § 118, ECHR 2010). The main purpose of this provision is to ensure that arrested persons are physically brought before a judicial officer promptly, which provides an important measure of protection against arbitrary behaviour, incommunicado detention and ill-treatment. 54. While the requirement of promptness has to be assessed in each case according to its specific features (see, among other authorities, Aquilina v. Malta [GC], no. 25642/94, § 48, ECHR 1999 ‑ III), the strict time constraint imposed by this requirement of Article 5 § 3 leaves little flexibility in interpretation (see, for example, Brogan and Others v. the United Kingdom, 29 November 1988, § 62, Series A no. 145 ‑ B and McKay v. the United Kingdom [GC], no. 543/03, § 33, ECHR 2006 ‑ X). 55. Turning to the case at hand, the Court notes that the applicants were arrested on 13 January 2002, and were brought before a judge at the Istanbul State Security Court on 17 January 2002, who ordered their release. The Court cannot, however, establish the exact period that elapsed between their arrest and their appearance before the judge, because the custody records submitted by the Government indicate the time of arrest for only some of the applicants and provide no information about the time of their appearance before the judge (see paragraphs 12 and 19 above). 56. The Court nevertheless notes from the information available that the time the applicants spent in the detention centre alone without taking into account the periods between their arrest and actual placement in detention (which for some of the applicants was as long as six hours and twenty minutes ) and after their removal from the detention centre until their appearance before the judge was between three days and seventeen hours and four days (see paragraph 12 ). The Court considers, even on the basis of that limited information, that the applicants were not brought “promptly” before a judge for the reasons set out below. 57. The Court notes in this connection that while it has required that the initial review by a judge take place within a “maximum” of four days after arrest (see McKay, cited above, § 33, and Magee and Others v. the United Kingdom, nos. 26289/12, 29062/12 and 29891/12, §§77-78, ECHR 2015 (extracts)), this case - law must not be understood as requiring no justification where the relevant period is less than four days (see Gal v. Ukraine, no. 6759/11, § 28, 16 April 2015 ). Accordingly, Article 5 § 3 may still be breached before the end of the four-day period in the absence of specific circumstances justifying detention for such a period of time (see, for instance, Kandzhov v. Bulgaria, no. 68294/01, § 66, 6 November 2008 and Gutsanovi v. Bulgaria, no. 34529/10, §§ 158-159, ECHR 2013 (extracts) ). 58. The Court notes that in the present case, permission to extend the applicants ’ detention until 17 January 2002 was obtained mainly to complete the applicants ’ files (see paragraph 17 above). The Government did not, however, provide any information regarding any specific investigatory measures taken during this period that required the applicants ’ deprivation of liberty, or present any specific difficulties or exceptional circumstances which would have prevented the authorities from bringing the applicants before a judge much sooner, considering in particular the non-complex and non-violent nature of their allegedly criminal act (see, mutatis mutandis, Kandzhov, cited above, § 66 and Gutsanovi, cited above, §§ 158-159 ). 59. Having regard to the foregoing, the Court considers that the applicants were not brought promptly before a judge following their arrest in the particular circumstances of the case. The incompleteness of the custody records in relation to the exact times of arrest and appearance before a judge, which suggest that most of the applicants were in fact kept in police custody for longer than four days, must also be taken into consideration in this regard (see paragraph 55 above). 60. There has accordingly been a violation of Article 5 § 3 of the Convention. 2. Article 5 § 4 of the Convention 61. The applicants alleged under Article 5 § 4 of the Convention that there had been no effective remedies in domestic law to challenge the lawfulness of their arrest and detention in police custody. They argued in particular that they had had no access to legal assistance or to their families during their detention in police custody, and that the Istanbul State Security Court had used formulaic reasoning to dismiss their objections and had delivered its decisions without hearing them in person. 62. The Government did not submit any observations on this complaint other than those regarding the remedy provided under Law no. 466 (see paragraph 41 above). 63. The Court reiterates that the purpose of Article 5 § 4 is to assure to persons who are arrested and detained the right to actively seek judicial supervision of the lawfulness of the measure to which they are thereby subjected (see, mutatis mutandis, De Wilde, Ooms and Versyp v. Belgium, 18 June 1971, § 76, Series A no. 12). A remedy must be made available during a person ’ s detention to allow that person to obtain speedy judicial review of the lawfulness of the detention, capable of leading, where appropriate, to his or her release. 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, mutatis mutandis, Vachev v. Bulgaria, no. 42987/98, § 71, ECHR 2004 ‑ VIII (extracts), and Stoichkov v. Bulgaria, no. 9808/02, § 66, 24 March 2005). The accessibility of a remedy implies, inter alia, that the circumstances voluntarily created by the authorities must be such as to give applicants a realistic opportunity to use the remedy (see, mutatis mutandis, Čonka v. Belgium, no. 51564/99, §§ 44 and 55, ECHR 2002 ‑ I). 64. Turning first to the objection raised by the Government, the Court notes that it has already examined and rejected similar arguments in previous cases where it held that a claim under Law no. 466 could not constitute proceedings of the type required by Article 5 § 4 on account of the lack of jurisdiction in such proceedings to order release if the detention was found to be unlawful or to award reparation for a breach of the Convention if the detention complied with domestic law as in the instant case (see, for instance, Öcalan v. Turkey [GC], no. 46221/99, § 71, ECHR 2005 ‑ IV, and Süleyman Erdem, cited above, § 33). The Court finds no particular circumstances in the instant case which would require it to depart from such findings. 65. The Court secondly notes that under Article 128 § 4 of the Code of Criminal Procedure in force at the material time, the applicants were entitled, as soon as they were taken into custody, to apply to a judge to challenge the lawfulness of that detention or of the decision of the public prosecutor to extend it, and the judge had to decide the matter within twenty-four hours of an examination based on the case file (see paragraph 33 above). The Court does not, however, consider that the relevant provision constituted an effective remedy on the facts of the case before it. 66. It observes in this connection, first and foremost, that the applicants were not given a realistic opportunity by the authorities to use the remedy in question, bearing in mind that most of them were illiterate with a limited understanding of Turkish and no legal training, and were also denied any access to their lawyers or families during the period of their detention. In the Court ’ s opinion, the specific circumstances the applicants found themselves in while in incommunicado detention in police custody made it very difficult for them to have effective recourse to the remedy under Article 128 of the former Code of Criminal Procedure (see, mutatis mutandis, Öcalan [GC], cited above, § 70 ). 67. The Court also notes that it has already found in similar circumstances that the remedy which existed in theory under Article 128 of the former Code of Criminal Procedure was not effective in practice, since it offered little prospect of success and did not comply with the procedural guarantees required under Article 5 § 4 (see, for example, Öcalan [GC], cited above, §§ 66-71; Maçin v. Turkey, no. 52083/99, § § 30 ‑ 33, 4 May 2006; and İpek and Others v. Turkey, nos. 17019/02 and 30070/02, § 41, 3 February 2009 and the cases cited therein). In the absence of any arguments by the Government to the contrary, the Court sees no reason to depart from its findings in those cases. It follows that, even in the case of the applicants who had managed to file objections concerning their detention despite the difficulties noted above, the proceedings under Article 128 of the former Code of Criminal Procedure did not provide an effective remedy satisfying the requirements of Article 5 § 4 of the Convention. The Court finds it particularly striking that when examining the objections raised by the relevant applicants against their detention, the judge at the Istanbul State Security Court did not even verify whether or not they were in police custody, which reinforces the conclusion about the ineffectiveness of this remedy on the facts of the instant case (see the judge ’ s decision in paragraph 15 above). 68. The Court acknowledges that no issue arises with regard to the right to a speedy judicial review of the lawfulness of detention under Article 5 § 4 of the Convention where a detainee is released before any speedy review could have taken place (see, for instance, Fox, Campbell and Hartley v. the United Kingdom, 30 August 1990, § 45, Series A no. 182; Slivenko v. Latvia [GC], no. 48321/99, § 159, ECHR 2003 ‑ X; and M.B. and Others v. Turkey, no. 36009/08, § 45, 15 June 2010). Moreover, it reiterates that a period of up to four days before first appearance before a judge may be compatible with the requirements of Article 5 § 3 (see paragraph 57 above). Nevertheless, the wording of Article 5 § 4 indicates that it becomes operative immediately after arrest or detention and is applicable to “[e]veryone who is deprived of his liberty” (see Petkov and Profirov v. Bulgaria, nos. 50027/08 and 50781/09, § 67, 24 June 2014). The right to “take proceedings” thus arises at that stage, with the consequence that the denial of the right to institute such proceedings – subject to reasonable practical considerations – will raise an issue under Article 5 § 4, all the more so when such a denial is in breach of domestic law. Thus, in the case of Petkov and Profirov, the Court held that Article 5 § 4 required the provision of a judicial remedy to the applicants, who were detained in police custody for less than twenty-four hours, to enable them to challenge their detention and obtain release (cited above, §§ 64-71). 69. In the present case, while the applicants were released by a judge at the Istanbul State Security Court after approximately four days ’ detention following the automatic review of their detention within the meaning of Article 5 § 3, during that four day period they were practically denied access to a remedy to challenge the lawfulness of their detention for the reasons explained above which, in the Court ’ s opinion, contravenes not only the relevant requirements of Turkish law but also goes against the object and purpose of Article 5 § 4. 70. Having regard to the foregoing, the Court dismisses the Government ’ s preliminary objection under this head and finds that there has been a violation of Article 5 § 4 of the Convention. 3. Article 5 § 5 of the Convention 71. The applicants complained under Article 5 § 5 of the Convention that they had not had a right to compensation in respect of the alleged violation of their rights under Article 5. 72. The Government did not submit any specific observations under this head, save for those mentioned above (see paragraph 41 ). 73. The Court reiterates that Article 5 § 5 is complied with where it is possible to apply for compensation in respect of a deprivation of liberty effected in conditions contrary to paragraphs 1, 2, 3 or 4 (see Elğay, cited above, § 30 ). The right to compensation set forth in paragraph 5 therefore presupposes that a violation of one of the preceding paragraphs of Article 5 has been established, either by a domestic authority or by the Court (see Saraçoğlu and Others v. Turkey, no. 4489/02, § 50, 29 November 2007). 74. The Court has found in the present case that the applicants were not brought promptly before a judge within the meaning of Article 5 § 3 and that their right to challenge the lawfulness of their detention in police custody was infringed, in violation of Article 5 § 4 (see paragraphs 60 and 70 above). It follows that Article 5 § 5 of the Convention is applicable. The Court must therefore establish whether or not Turkish law at the time of the events in question afforded the applicants in this case an enforceable right to compensation for the breaches of Article 5. 75. In this connection, the Court observes that it was open to the applicants to bring a claim for compensation under section 1(6) of Law no. 466 as the criminal proceedings against them had ended with their acquittal. However, the Court has already found in other cases raising similar issues that when awarding compensation under Law no. 466, the national courts based their assessment solely on the fact that there had been an acquittal. The national courts ’ assessment was therefore an automatic consequence of the acquittal and did not amount to the establishment of a violation of any of paragraphs 1 to 4 of Article 5 (see, for example, Sinan Tanrıkulu and Others v. Turkey, no. 50086/99, § 50, 3 May 2007; Medeni Kavak v. Turkey, no. 13723/02, § 34, 3 May 2007; Saraçoğlu and Others, cited above, § 52; Elğay, cited above, § 32; and Mekiye Demirci v. Turkey, no. 17722/02, § 70, 23 April 2013). 76. It follows that, in the applicants ’ case, Law no. 466 did not provide an enforceable right to compensation for the breach of their rights under Article 5 § § 3 and 4 of the Convention, as required by Article 5 § 5. 77. The Court accordingly dismisses the Government ’ s preliminary objection under this head and concludes that there has been a violation of Article 5 § 5 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 78. The applicants maintained under Article 7 of the Convention that they had been subjected to criminal proceedings for using their constitutional right to file a petition, despite the absence of any provisions in domestic law criminalising such conduct. 79. The Court, being the master of characterisation to be given in law to the facts of the case (see Aksu v. Turkey [GC], nos. 4149/04 and 41029/04, § 43, ECHR 2012 ), considers that this complaint falls to be examined under Article 10 of the Convention. The relevant parts provide : Article 10 “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. Admissibility 1. As regards the applicant Yılmaz Yavuz 80. The Court observes that, although the applicant Yılmaz Yavuz was initially arrested on the same grounds as the other applicants, no criminal charges were subsequently brought against him since he had not submitted a petition to the authorities requesting education in Kurdish. Accordingly, the Court considers that the applicant ’ s arrest and subsequent detention cannot be viewed in terms of an interference with his rights under Article 10. It follows that this part of the application must be rejected as being manifestly ill-founded with the meaning of Article 35 §§ 3 and 4 of the Convention. 2. As regards the remaining applicants 81. The Court considers that although the respondent State did not raise an objection as to the Court ’ s competence ratione personae in relation to the remaining applicants ’ complaints under this head, the issue of victim status calls for consideration by the Court given that it is closely linked to the question of whether there was an interference with the applicants ’ right to freedom of expression (see, Gülcü v. Turkey, no. 17526/10, § 78, 19 January 2016, and, mutatis mutandis, Babajanov v. Turkey, no. 49867/08, § 70, 10 May 2016). The Court therefore joins the issue of victim status to the merits (see paragraphs 8 5 - 8 9 below). 82. 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 also notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ arguments 83. The applicants maintained in their observations that they had been prevented from exercising their democratic right to submit a petition, which amounted to an infringement of their right to freedom of expression under Article 10 of the Convention. 84. The Government argued that there had been no interference with the applicants ’ right to freedom of expression under Article 10. They claimed in this connection that the petitions that had been the subject matter of the criminal proceedings in the instant case had been submitted as part of a collective action organised by the PKK, a terrorist organisation, as could be seen from their virtually identical wording and the timing of their submission. In these circumstances, the criminal investigation initiated in relation to those petitions had been prescribed by law and necessary in a democratic society in the interests of the prevention of disorder. They also argued that even if an interference were to be found on the facts, the applicants had been acquitted at the end of the criminal proceedings and there had therefore been no violation of their right to freedom of expression. 2. The Court ’ s assessment (a) Existence of an interference 85. The Court observes that the applicants submitted petitions to certain State authorities requesting education in Kurdish for their children – an act provided for under the Constitution and a medium through which they were exercising their right to freedom of expression. As a result of them expressing their opinion on the subject of education in Kurdish in that manner, their homes were searched, they were arrested and taken into police custody for approximately four days and some of them were remanded in custody for almost a month afterwards. Subsequently, criminal proceedings were brought against them for aiding and abetting an illegal armed organisation pursuant to Article 169 of the Criminal Code, an offence punishable by three to five years ’ “ heavy imprisonment ”, and they were on trial before a State Security Court for over a year and four months on those charges. 86. The Court notes that while the criminal proceedings in question were still pending at the time the present application was lodged, the applicants were eventually acquitted of the charges brought against them, which raises the question as to whether there has nonetheless been an “interference” with their right to freedom of expression and whether they can still be considered to be “ victims ” of an alleged breach of that right. 87. The Court notes in this connection that State action that has been found to amount to an interference with the right to freedom of expression encompasses a wide variety of measures – mainly in the form of a “formality, condition, restriction or penalty” (see, mutatis mutandis, Wille v. Liechtenstein [GC], no. 28396/95, § 43, ECHR 1999 ‑ VII ) – and may include, depending on the circumstances, criminal proceedings not culminating in a criminal conviction (see, for instance, Altuğ Taner Akçam v. Turkey, no. 27520/07, §§ 65-83, 25 October 2011, and Dilipak v. Turkey, no. 29680/05, §§ 40-51, 15 September 2015 and the cases cited therein). 88. Turning to the facts of the present case, the Court considers that regardless of the outcome of the criminal proceedings at issue, the string of measures that the applicants faced within the framework of those proceedings for merely petitioning the State authorities on a matter of “public interest” (see more in paragraph 10 3 below) – notably their arrest and deprivation of liberty – amounted to an interference with the exercise of their right to freedom of expression (see, mutatis mutandis, Kandzhov, cited above, § 70, and the cases cited therein ). 89. Furthermore, the Court considers that the applicants ’ acquittal at the end of those proceedings did not automatically have the effect of removing the effects of the interference with their right to freedom of expression and thus depriving them of their victim status on the particular facts of the instant case. The Court reiterates in this connection that 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 Gülcü, cited above, § 99 and the cases cited therein). In the instant case the Istanbul State Security Court, when ordering the applicants ’ acquittal, neither acknowledged nor afforded redress for the alleged breach of their right to freedom of expression on account of the measures they had faced as mentioned in paragraphs 8 5 and 8 8 above. For this reason, the applicants may not be considered to have lost their victim status on account of their acquittal. (b) Whether the interference was justified 90. Such interference will give rise to a breach of Article 10 unless it can be shown that it was “prescribed by law”, pursued one or more legitimate aims under paragraph 2, and was “necessary in a democratic society” for achieving such aims. (i) Lawfulness and legitimate aim 91. The parties did not submit any specific observations on whether the interference was prescribed by law. The Government, however, stated that the impugned measures against the applicants pursued the legitimate aim of “prevention of disorder”. 92. The Court reiterates that the expression “prescribed by law”, within the meaning of Article 10 § 2, requires firstly that the impugned measure should have some basis in domestic law. However, it also refers to the quality of the law in question, which requires that legal rules should be accessible to the person concerned, their consequences foreseeable and their compatibility with the rule of law ensured (see, for further details, Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 141, ECHR 2012; Delfi AS v. Estonia [GC], no. 64569/09, § 121, ECHR 2015; Perinçek v. Switzerland [GC], no. 27510/08, § 131, ECHR 2015 (extracts); Association Ekin v. France, no. 39288/98, § 44, ECHR 2001-VIII; and Dink v. Turkey, nos. 2668/07, 6102/08, 30079/08, 7072/09 and 7124/09, § 114, 14 September 2010 ). 93. Turning to the facts of the present case, the Court observes that the interference in question was based on Article 169 of the Criminal Code in force at the material time, concerning the offence of aiding and abetting an illegal armed organisation. This fact is not contested by the parties. The Court therefore accepts that the restriction in question had a basis in domestic law in the formal sense. 94. As to the quality of the relevant law, there is no question that the law at issue was accessible. The Court, however, has doubts about the foreseeability of the consequences of the provision in question in that it may not have been possible to foresee that the mere submission of a petition requesting education in Kurdish for elementary school students would be considered to be aiding and abetting a terrorist organisation. Nor is the legitimate aim of the measures taken against the applicants evident in these circumstances. 95. However, having regard to its examination of these matters below from the point of view of the “necessity” of the measure (see paragraphs 9 6 ‑ 1 0 9 ), the Court considers that it is not required to reach a final conclusion on whether the interference was prescribed by law and pursued a legitimate aim (see Association Ekin, cited above, § 46; Dink, cited above, § § 116 and 118; and Nedim Şener v. Turkey, no. 38270/11, § § 102 and 105, 8 July 2014). (ii) “Necessary in a democratic society” 96. The parties did not submit any specific observations on this matter. 97. The general principles concerning the question whether an interference with freedom of expression is “necessary in a democratic society” are well established in the Court ’ s case-law (see, amongst recent authorities, Karácsony and Others v. Hungary [GC], no. 42461/13, § 132, 1 7 May 2016 ). 98. The Court reiterates accordingly, and in so far as is relevant to the present case, that freedom of expression constitutes one of the essential foundations of a democratic society. Subject to Article 10 § 2, 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 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 Handyside v. the United Kingdom, 7 December 1976, § 49, Series A no. 24, and Baka v. Hungary [GC], no. 20261/12, § 158, 2 3 June 2016 and the cases cited therein). As set forth in Article 10, freedom of expression is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly (see Baka, cited above ). 99. When examining whether restrictions on the rights and freedoms guaranteed by the Convention can be considered “necessary in a democratic society” within the meaning of Article 10 § 2, the Contracting States enjoy a certain but not unlimited margin of appreciation. It is, in any event, for the Court to give a final ruling on the restriction ’ s compatibility with the Convention and this is to be done by assessing the circumstances of a particular case (see Kudrevičius and Others v. Lithuania [GC], no. 37553/05, § 142, 15 October 2015 ). 100. In exercising its supervisory jurisdiction, the Court must look at the impugned interference in the light of the case as a whole. An interference will be considered “necessary in a democratic society” for a legitimate aim if it answers a “pressing social need” and, in particular, if it is proportionate to the legitimate aim pursued and if the reasons adduced by the national authorities to justify it are “relevant and sufficient” (see, mutatis mutandis, Fernández Martínez v. Spain [GC], no. 56030/07, § 124, ECHR 2014 (extracts) ). 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 1 0 of the Convention (see Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 91, ECHR 2004 ‑ XI, and Cumhuriyet Vakfı and Others v. Turkey, no. 28255/07, § 59, 8 October 2013). 101. In the present case, the Court observes that the applicants were subjected to a series of measures for petitioning the State authorities for the provision of education in Kurdish in elementary schools. The arguments put forward by the public prosecutor in the indictment and by the Government in their observations reveal that the applicants faced those measures not on account of the substance of their requests as such, but because they had allegedly submitted them as part of a collective action instigated by an illegal armed organisation, the PKK (see paragraphs 9, 10, 17, 27 and 8 4 above). 102. While the Court does not underestimate the difficulties to which the fight against terrorism gives rise, it considers that that fact alone does not absolve the national authorities from their obligations under Article 10 of the Convention. Accordingly, although freedom of expression may be legitimately curtailed in the interests of national security, territorial integrity and public safety, those restrictions must still be justified by relevant and sufficient reasons and respond to a pressing social need in a proportionate manner ( as noted in paragraph 100 above ). In making this assessment, the Court must look at the impugned interference in the light of the case as a whole, including the content of the remarks held against the applicants, the context in which they were made, and the actual impact that those remarks were likely to produce (see Nedim Şener, cited above, § 117). 103. The Court accordingly observes that the petitions at issue requesting education in Kurdish in elementary schools were submitted amidst a public debate in Turkey regarding the social and cultural rights of Turkish citizens of Kurdish ethnic origin, including in particular their right to education in their mother tongue. Having regard to the content and context of those petitions and to the legislative changes that ensued in the area of education in Kurdish language shortly after their submission, the Court thus considers that the applicants ’ request concerned a matter of “public interest” (see Eğitim ve Bilim Emekçileri Sendikası v. Turkey, no. 20641/05, § 74, ECHR 2012 (extracts)). 104. The Court reiterates in this connection that there is little scope under Article 10 § 2 of the Convention for restrictions on debate on questions of public interest (see the Wingrove v. the United Kingdom, 25 November 1996, § 58, Reports of Judgments and Decisions 1996 ‑ V; Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 61, ECHR 1999 ‑ IV; and Sürek v. Turkey (no. 4) [GC], no. 24762/94, § 57, 8 July 1999), and State authorities must therefore display restraint in resorting to criminal proceedings where such debate is concerned. 105. The Court observes, however, that contrary to this principle, the relevant State authorities did not display the restraint called for by the circumstances and evidence before them when dealing with the applicants ’ petitions. It notes accordingly that on receipt by the General Education Directorates, the petitions were at once transmitted to the Istanbul Security Directorate, and from there to the public prosecutor ’ s office at the Istanbul State Security Court, which from the outset treated them as acts of aiding and abetting the PKK, on the grounds that the PKK had made general appeals for such petitions to be submitted (see the preliminary investigative measures taken by the public prosecutor ’ s office in paragraphs 9, 10, 17 and 27 above). 106. Thereupon, the relevant State authorities not only initiated an investigation against the applicants for engaging in a terrorism-related offence, but used the legal arsenal at their hands in an almost repressive manner against them. The Court notes in this regard that the applicants ’ homes were searched in the early hours of the morning, that they were arrested and placed in police custody for approximately four days and, in the case of some of them, continued to be held for almost a month pending the criminal proceedings. 107. The Court considers these measures, and certainly those involving a deprivation of the applicants ’ liberty, to be unjustified and disproportionate in the circumstances of the case, having regard to the purpose of the petitions in question and the context in which they were submitted. In the Court ’ s opinion, the applicants in the instant case, parents of elementary school pupils, used their constitutional right to file a petition to make a request regarding the education of their children. For the Court, neither the views expressed in those petitions nor the form in which they were conveyed raise doubts regarding the peaceful nature of their request. Furthermore, the fact that the applicants ’ peaceful request regarding the education of their children may have coincided with the aims or instructions of an illegal armed organisation did not remove that request from the scope of protection of Article 10 (see, for a similar discussion in the context of Article 220 of the new Turkish Criminal Code, Gülcü, cited above, § 112, and the comments of the Council of Europe ’ s Commissioner of Human Rights referred to in paragraphs 68 and 6 9 of that judgment). The Court stresses in this regard that in a democratic society based on the rule of law, political ideas which challenge the existing order and whose realisation is advocated by peaceful means must be afforded a proper opportunity of expression (see, mutatis mutandis, Stankov and the United Macedonian Organisation Ilinden v. Bulgaria, nos. 29221/95 and 29225/95, § 97, ECHR 2001 ‑ IX), which, on the instant facts, the prosecution authorities ignored. 108. Having regard to the foregoing arguments, the Court considers that while applying the measures against the applicants, the relevant State authorities failed to use as a basis an acceptable assessment of the relevant facts and apply standards which were in conformity with the principles embodied in Article 10 of the Convention despite the important interests at stake (see Jersild v. Denmark, 23 September 1994, § 31, Series A no. 298). The Court cannot therefore hold that the interference in question was “necessary in a democratic society”. This is all the more so considering that shortly after the applicants ’ arrest and while they were still on trial for aiding and abetting the PKK by way of their petitions requesting education in Kurdish, the Foreign Language Education and Teaching Act (Law no. 2923) was amended on 2 August 2002 to provide for such education, at least on a private basis initially (see paragraph 36 above and Eğitim ve Bilim Emekçileri Sendikası, cited above, § 11, 55 and 74). 109. There has accordingly been a violation of Article 10 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 2 OF PROTOCOL NO. 1 TO THE CONVENTION 110. The applicants maintained that the authorities ’ attitude towards Kurdish people ’ s right to education in their mother tongue had amounted to a violation of Article 14 of the Convention. 111. The Court notes that this complaint was communicated to the Government in conjunction with Article 2 of Protocol No. 1 to the Convention. 112. The Court reiterates that the applicants in the instant case were charged with aiding and abetting the PKK on account of their petitions requesting education in Kurdish in elementary schools. However, the evidence indicates, as already discussed (see paragraph 1 0 1 above ), that they were charged not because of the content of their petitions per se, but for allegedly acting on the instructions of an illegal armed organisation in submitting those petitions. There is no information in the case file to suggest that the substance of the applicants ’ request was taken into consideration by the relevant State authorities. 113. Looking at the facts of the case as a whole and the parties ’ arguments, the Court considers that the crux of the problem is not the denial of the applicants ’ right to education and alleged discriminatory nature of such an attitude, concerns which were never voiced before the domestic authorities, but the measures they faced for submitting those petitions with the alleged intent of supporting the PKK. In the Court ’ s opinion, the measures thus applied in respect of the applicants were principally an impediment to their right to freedom of expression, and it was the infringement of that right that lies at the heart of the case presented to the Court. 114. Having regard to the facts of the case, the submissions of the parties and its finding of a violation under Article 10 of the Convention (see paragraph 1 0 9 above), and noting also the changes in the domestic law regarding the teaching of the Kurdish language (see paragraphs 36-39 above), the Court considers that there is no need to give a separate ruling on the admissibility or the merits of the applicants ’ complaints under this head (see, for example, Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014 and the cases cited therein). IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 115. Lastly, the applicants raised a number of complaints under Articles 6 §§ 1 and 3 (a), (b), (c) and 8 of the Convention. They complained under Article 6 §§ 1 and 3 that the Istanbul State Security Court had lacked independence and impartiality, that the authorities had failed to inform them promptly of the charges against them, that they had been denied access to a lawyer during their detention in police custody, including at the time of their questioning by the police and the public prosecutor, that their lawyer ’ s requests to access the criminal case file during the investigation stage had been refused, and that they had not had adequate time and facilities for the preparation of their defence. They also maintained under Article 8 that they had submitted the petitions in question to enable their children to communicate with their family members in Kurdish, and that the measures they had faced as a result had therefore also violated that provision. 116. In their observations, dated 1 April 2009, the applicants also complained of additional violations of their rights under Article 5 § 4 and Article 13. 117. In the light of all the material in its possession, the Court finds that these allegations by the applicants do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its protocols. It follows that these complaints must be declared inadmissible as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 118. 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 119. The applicants claimed 15,000 euros (EUR) each in respect of non ‑ pecuniary damage. 120. The Government argued that the claims were unsubstantiated and excessive. 121. The Court considers that the applicants, except for Yılmaz Yavuz, must have suffered non ‑ pecuniary damage on account of the violation of their rights under Article 5 §§ 3, 4 and 5 and Article 10 of the Convention, which cannot be compensated for solely by the finding of violations. Having regard to the seriousness of the violations in question and to equitable considerations, it awards the applicants, except for Yılmaz Yavuz, EUR 10,000 each in respect of non-pecuniary damage. As for the applicant Yılmaz Yavuz, the Court considers that he must also have suffered non ‑ pecuniary damage on account of the violations of his rights under Article 5 §§ 3, 4 and 5 alone. It therefore awards that applicant EUR 6,500 in respect of non-pecuniary damage. B. Costs and expenses 122. The applicants also claimed EUR 11,400 for lawyer ’ s fees and EUR 550 for other costs and expenses incurred before the Court, such as photocopying, postage and telephone costs and translation fees. In that connection, they submitted a timesheet showing that their legal representatives had carried out 114 hours ’ legal work. The remaining expenses were not supported by any documents. 123. The Government contested those claims, deeming them unsubstantiated. 124. 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 the sum of EUR 3 ,000 jointly, covering costs under all heads. C. Default interest 125. 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 (right to freedom of expression) of the Convention, finding that the interference in question had not been “necessary in a democratic society”. It stressed in particular that, while it did not underestimate the difficulties to which the fight against terrorism gave rise, that fact alone did not absolve the national authorities from their obligations under Article 10 of the Convention. Accordingly, although freedom of expression could be legitimately curtailed in the interests of national security, territorial integrity and public safety, those restrictions still had to be justified by relevant and sufficient reasons and respond to a pressing social need in a proportionate manner. In the instant case, however, the Court found that the relevant State authorities had failed to use as a basis for the measures an acceptable assessment of the relevant facts and to apply standards that were in conformity with the principles embodied in Article 10 of the Convention. |
340 | Police violence | II. RELEVANT DOMESTIC LAW 23. The right to physical integrity is protected by the Constitution. Article 17 § 2 provides: “Save in the case of medical necessity and in circumstances defined by law, violation of physical integrity shall be prohibited; human beings shall not be subjected to scientific or medical experiments.” 24. Article 66 of the Code of Criminal Procedure provides an exception to this rule. It lays down: “... During the preliminary investigation, medical examinations may be performed at the request of the public prosecutor.” 25. Article 1 of the Regulation of 13 August 1999, which amended Article 8 of the Regulation of 1 October 1998 concerning the arrest, detention and questioning of suspects, provides that persons under arrest shall be body ‑ searched before being taken into custody. Body searches of female detainees must be performed by a female officer or a woman designated for that purpose. 26. According to Circular no. 2000/93 issued by the Ministry of Justice on 20 September 2000, which repealed Circulars nos. 6058, 6065, 6068, 6070 and 6090, medical personnel shall respect fundamental human rights and freedoms and rules on privacy when conducting medical examinations and tests. The doctor must see and examine the patient personally and must not rely on another person's statement in his or her report. Medical examinations must be performed under appropriate conditions and out of the hearing and sight of members of the security forces. Persons required to undergo a medical examination must be seen on premises to which only medical personnel are admitted and undress in readiness for the examination after being given the necessary information. THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 27. The applicant alleged that the forced gynaecological examination of his wife constituted a breach of Article 8 of the Convention, the relevant part of which 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.” 28. The Government disputed that allegation. A. Whether there was an interference with the rights of the applicant's wife under Article 8 1. The parties'submissions (a) The applicant 29. The applicant submitted that his wife had been subjected to a gynaecological examination against her will, which constituted an unjustified interference with her right to respect for private life within the meaning of Article 8 of the Convention. (b) The Government 30. The Government submitted that the gynaecological examination had been performed with the consent of both the applicant and his wife. They maintained that the necessary explanation had been given to the applicant's wife prior to the examination and that she could have refused to undergo it. Since the applicant's wife had not objected to the examination and it could not have been carried without her consent, it had to be regarded as having been performed with her consent. 2. The Court's assessment 31. The Court notes at the outset that the Government did not at any stage in the proceedings dispute the fact that the applicant could bring a complaint on behalf of his wife. In this connection, it reiterates that it is open to the applicant, as a close relative of the victim, to make a complaint concerning allegations by her of violations of the Convention, in particular having regard to her vulnerable position in the special circumstances of this case (see İlhan v. Turkey [GC], no. 22277/ 93, § 55, ECHR 2000-VII). Thus, the question before the Court is whether there has been an “interference” with the rights of the applicant's wife under Article 8 of the Convention on account of the gynaecological examination allegedly performed against her will. 32. It is not in dispute between the parties that the applicant's wife underwent a gynaecological examination by a doctor following her detention in police custody. However, the Court has been presented with conflicting accounts as to whether or not it was performed with her consent. 33. The Court observes that Article 8 is clearly applicable to these complaints, which concern a matter of “private life”, a concept which covers the physical and psychological integrity of a person ( see X and Y v. the Netherlands, judgment of 26 March 1985, Series A no. 91, p. 11, § 22). It reiterates in this connection that a person's body concerns the most intimate aspect of private life. Thus, a compulsory medical intervention, even if it is of minor importance, constitutes an interference with this right ( see X v. Austria, no. 8278/78, Commission decision of 13 December 1979, Decisions and Reports (DR) 18, p. 155, and Acmanne and Others v. Belgium, no. 10435/83, Commission decision of 10 December 1984, DR 40, p. 254). 34. The Court notes that the applicant's wife complained to the authorities that she had been forced to undergo a gynaecological examination against her will (see paragraph 16 above). For their part, the Government contended that it would not have been possible to perform such an examination without the consent of Mrs F., who could have objected to it when she was taken to the doctor's consulting room. However, the Court considers that, in the circumstances, the applicant's wife could not have been expected to resist submitting to such an examination in view of her vulnerability at the hands of the authorities who exercised complete control over her throughout her detention (see, mutatis mutandis, Tomasi v. France judgment of 27 August 1992, Series A no. 241-A, pp. 41 -42, §§ 113-15). 35. There has accordingly been an “interference by a public authority” with the right of the applicant's wife to respect for her private life. 36. Such an interference will violate Article 8 of the Convention unless it is “in accordance with the law”, pursues one of the legitimate aims set out in the second paragraph of that Article, and can be considered “necessary in a democratic society” in pursuit of that aim (see Dankevich v. Ukraine, no. 40679/98, § 151, 29 April 2003, and Silver and Others v. the United Kingdom, judgment of 25 March 19 8 3, Series A no. 61, p. 32, § 84 ). B. Whether Article 8 was violated 1. The parties'submissions (a) The applicant 37. The applicant submitted that Turkish law did not prescribe the gynaecological examination of female detainees, which was a practice that had been introduced by the security forces. In his opinion, the stated purpose of such examinations – namely to avoid false accusations of sexual harassment by police officers – could not be considered to be a justification for such practice. In a democratic society, false accusations of that sort could be avoided by shortening the detention period permissible under domestic law and by allowing detainees to have access to a lawyer while in custody. Alternatively, in cases of necessity, such an examination should be performed only on the order of a judge or a public prosecutor. (b) The Government 38. The Government argued that the gynaecological examination of female detainees was necessary to avoid false accusations of sexual violence being directed against the security forces. To that end, the medical reports prepared after such examinations constituted evidence that could be used to refute defamatory allegations of sexual molestation. In that connection, the Government drew attention to the recommendations set out in the report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) following its visit to Turkey between 27 February and 3 March 1999. In its report, the CPT emphasised that forensic medical examination of detainees by a doctor was a significant safeguard against sexual violence. Accordingly, the CPT had urged the national authorities to take the necessary measures, including the preparation of forensic medical reports, with a view to protecting detainees against sexual violence. Thus, the domestic law and practice had been reformed, inter alia, by the entry into force on 1 October 1998 of regulations on arrest, detention and questioning, and by the adoption of new formal procedures to be followed for forensic medical examinations, including those carried out in respect of allegations of sexual violence. 39. With reference to the Court's case-law, the Government further maintained that, in determining whether an interference was “necessary in a democratic society”, account had to be taken of the fact that a margin of appreciation was left to the Contracting States (see Olsson v. Sweden (no. 1), judgment of 24 March 1988, Series A no. 130, pp. 31-32, § 67, and W. v. the United Kingdom, judgment of 8 July 1987, Series A no. 121, p. 27, § 60). 40. The Government concluded that the alleged interference with the right of the applicant's wife to respect for her private life should be considered to be an act falling within the State's margin of appreciation. 2. The Court's assessment 41. The Court must first consider whether the interference was “in accordance with the law”. This expression requires primarily that the impugned measure should have some basis in domestic law (see Kruslin v. France and Huvig v. France, judgments of 24 April 1990, Series A no. 176 ‑ A, p. 20, § 27, and Series A no. 176-B, p. 52, § 26, respectively). 42. In this regard, the Court notes that the Government have not argued that the interference complained of was “in accordance with the law” at the relevant time. They referred in their observations to regulations and circulars which were issued after the date of the disputed examination (see paragraphs 25 and 26 above). Furthermore, under Turkish law, any interference with a person's physical integrity is prohibited except in the event of medical necessity and in circumstances defined by law ( see paragraph 23 above). Moreover, in the course of the preliminary investigation, a detainee may only be examined at the request of a public prosecutor (see paragraph 24 above). 43. However, in this case the Government failed to demonstrate the existence of a medical necessity or the circumstances defined by law. Nor did they suggest that a request for a medical examination had been made by the public prosecutor. Finally, while the Court accepts the Government's submission that the medical examination of detainees by a forensic doctor can prove to be a significant safeguard against false accusations of sexual molestation or ill-treatment, it considers that any interference with a person's physical integrity must be prescribed by law and requires the consent of that person. Otherwise, a person in a vulnerable situation, such as a detainee, would be deprived of legal guarantees against arbitrary acts. In the light of the foregoing, the Court finds that the interference in issue was not “in accordance with law”. 44. This finding suffices for the Court to hold that there has been a violation of Article 8 of the Convention. It is not therefore necessary to examine whether the interference in question pursued a “legitimate aim” or was “necessary in a democratic society” in pursuit thereof ( see M.M. v. the Netherlands, no. 39339/98, § 46, 8 April 2003 ). II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 45. 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 46. The applicant claimed 25,000 United States dollars (USD) by way of compensation for non-pecuniary damage. 47. The Government argued that the claim was excessive and would lead to unjust enrichment. 48. The Court considers that the applicant's wife can be taken to have suffered frustration and anxiety resulting from her gynaecological examination against her will. Deciding on equitable basis, the Court awards the sum of 4,000 euros (EUR), which is to be paid to the applicant to be held for his wife. B. Costs and expenses 49. The applicant claimed a total of 5, 7 00 USD for costs and expenses incurred in making the application. This included costs incurred by his representative Mr S. Tanrıkulu (USD 5,500 for fifty-five hours'legal work) and expenses such as translations, telephone calls, postage, photocopying and stationery (281,000, 000 Turkish liras). 50. The Government submitted that the claims for costs and expenses were unsubstantiated. 51. Deciding on an equitable basis and having regard to the detail of the claims submitted by the applicant, the Court awards him the sum of EUR 3,000, to be held for his wife, together with any value-added tax that may be chargeable, less 4,100 French francs ( EUR 625) received by way of legal aid from the Council of Europe, such sum to be converted into Turkish liras at the date of settlement and to be paid into the applicant's bank account in Turkey. C. Default interest 52. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 8 (right to respect for private life) of the Convention. It considered that, given her vulnerability in the hands of the authorities who had exercised full control over her during her detention, the applicant’s wife could not be expected to have put up resistance to the gynaecological examination. There had accordingly been an interference with her right to respect for her private life. The Turkish Government had failed to demonstrate the existence of a medical necessity or other circumstances defined by law. While the Court accepted their argument that the medical examination of detainees by a forensic medical doctor could be an important safeguard against false accusations of sexual harassment or ill-treatment, it considered that any interference with a person’s physical integrity had to be prescribed by law and required that person’s consent. As this had not been the case here, the interference had not been in accordance with the law. |
630 | Employees | II. RELEVANT DOMESTIC LAW A. The Constitution 22. The relevant part of the Constitution of the Republic of Croatia ( Ustav Republike Hrvatske, Official Gazette no. 56/1990 with subsequent amendments) provides as follows: Article 16 “(1) Rights and freedoms may be only restricted by law in order to protect the rights and freedoms of others, the legal order, public morals or health. (2) Every restriction of rights and freedoms should be proportional to the nature of the necessity for the restriction in each individual case. ... Article 38 “(1) Freedom of thought and expression shall be guaranteed. (2) Freedom of expression shall include in particular freedom of the press and other media, freedom of speech and [the freedom] to speak publicly, and the free establishment of all media institutions. (3) Censorship shall be forbidden. Journalists shall have the right to freedom of reporting and access to information. (4) The right to correction shall be guaranteed to anyone whose rights guaranteed by the Constitution or by statute have been breached by information in the public domain.” B. Labour Act 23. The relevant provisions of the Labour Act of 1995 ( Zakon o radu, Official Gazette no. 38/95 with subsequent amendments ), which was in force between 1 January 1996 and 1 January 2010, provided as follows at the material time: Summary notice Section 107(1) and (2) “(1) An employer or an employee has a justified reason to give notice terminating ... an employment contract, without an obligation to comply with the prescribed or agreed notice period ( ‘ summary notice ’ ) if, because of a particularly serious breach of an employment-related duty or because of some other particularly important fact, taking into account all the circumstances and the interests of both contracting parties, continuation of the employment relationship is not possible. (2) An employment contract may only be terminated on summary notice within fifteen days of the date when the person concerned found out about the fact which is the basis for the summary notice.” Unjustified reasons for dismissal Section 108 “(1) ... (2) Where an employee lodges an appeal or brings an action or takes part in proceedings against the employer for breach of statute, other legislation, a collective agreement or an internal regulation, and addresses the competent executive authorities, this shall not constitute a justified reason for dismissal. (3) Where an employee addresses a bona fide complaint to the person in charge [of the relevant department] or files one with the competent State authorities on grounds of a reasonable suspicion of corruption, this shall not constitute a justified reason for dismissal.” C. Civil Procedure Act 24. The relevant provisions of the Civil Procedure Act ( Zakon o parničnom postupku, Official Gazette of the Socialist Federal Republic of Yugoslavia no. 4/77 with subsequent amendments, and Official Gazette of the Republic of Croatia no. 53/91 with subsequent amendments), which has been in force since 1 July 1977, read as follows: 5.a. Reopening of proceedings following a final judgment of the European Court of Human Rights in Strasbourg finding a violation of a fundamental human right or freedom Section 428a “(1) When the European Court of Human Rights has found a violation of a human right or fundamental freedom guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms or the additional protocols thereto, ratified by the Republic of Croatia, a party may, within thirty days of the judgment of the European Court of Human Rights becoming final, file a petition with the court in the Republic of Croatia which adjudicated at first instance in the proceedings in which the decision violating the human right or fundamental freedom was rendered, to set aside the decision [in question]. (2) The proceedings referred to in paragraph 1 of this section shall be conducted by applying, mutatis mutandis, the provisions on reopening of proceedings. (3) In the reopened proceedings the courts are required to observe the legal views expressed in the final judgment of the European Court of Human Rights finding a violation of a fundamental human right or freedom.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 25. The applicant complained that her dismissal on account of her media statements had been in breach of her freedom of expression and thus contrary to Article 10 of the Convention, which reads as follows: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” 26. The Government contested that argument. A. Admissibility 27. 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 submissions of the parties (a) The applicant 28. Firstly, the applicant explained the background to the conflict between her and M.U. which had prompted their statements in the media. She submitted that on 27 April 2000 the Municipality of Kostrena had taken a decision authorising the company to collect parking fees in all the parking lots located on the territory of the Municipality. However, it had soon become apparent that the land on which certain of the parking lots (Žurkovo and Viktor Lenac) had been built or planned was not owned by the Municipality but by third parties. The applicant, as the director of the company, had therefore notified the Municipality that the collection of parking fees and the carrying out of some other projects (such as the construction of a dry dock marina) on such land could not commence until the property issues had been resolved, that is until the Municipality had become the owner of the land. 29. The Municipality had promised to resolve the property issues but they had still not been dealt with to the present day. Since M.U., the municipal mayor at the time, had advised her that the Municipality would be registered as the owner of the land forming the Viktor Lenac parking lot in a matter of days, the applicant had agreed to start collecting parking fees from that lot. However, that had resulted in two civil proceedings (for repayment of parking fees and for a declaration of ownership) with the owner of the parking lot (see paragraphs 19-20 above), both of which the company had lost. The applicant had stopped charging parking fees for that land as soon as the company had been sued to repay the fees it had collected. 30. When therefore at the end of 2005 M.U. had started to put pressure on the applicant to collect parking fees at Žurkovo Bay, the applicant had refused because that car park had also been located on land owned by third parties and not by the Municipality (the applicant supplied an extract from the land register to that effect). In reaction to her refusal, M.U. had criticised her in the media (see paragraph 7 above) by saying that she had not been doing her job properly because: - the company was not carrying out the activities for which it had been established; - it had been stagnating under her leadership; - she had not been collecting parking fees from the two parking lots which had (a long time beforehand) been leased out to third parties; - and that by all those actions she had caused a loss of income and decreased the possibilities for the employment of local people. 31. The applicant submitted that Kostrena was a small community where she, as a public figure, had been known to all its inhabitants. She had therefore had to defend herself against M.U. ’ s public criticism and explain that the company had in fact been stagnating because of the unresolved property issues (see paragraphs 27-28 above) and not because of her alleged incompetence. She had also stated that if anyone considered that she had not been doing her job properly, the authorities could come to the company and check her work, a statement which had been her defence to M.U. ’ s false and groundless accusations. The applicant emphasised that her statements could not be taken in isolation from those of M.U. 32. The applicant also argued that she had made the impugned statements in good faith, only with a view to denying the false accusations against her, and that by doing so she had exercised her right of reply (correction) guaranteed by Article 38 § 4 of the Constitution (see paragraph 22 above). She added that she had not had any other means of replying to M.U. ’ s groundless criticism. In particular, even though she had lodged two criminal complaints against M.U. on different grounds, there had been no grounds to do so in respect of charging for parking at the Žurkovo Bay parking lot because she had resisted the pressure he had put on her to apply those charges (see paragraph 30 above). Likewise, there had been no grounds for lodging a criminal complaint about charging for parking at the Viktor Lenac lot because the applicant had stopped levying those charges as soon as her company had been sued by the company which owned it (see paragraph 29 above). 33. The applicant argued that the true reason for her dismissal had been that she had disobeyed the mayor, who had realised that as long as she was director of the municipal utility company the Municipality would not earn the income he had expected from the unlawful projects he had intended to carry out through the company. He had therefore used the applicant ’ s statements to the media and his position as chairman of the General Meeting to remove her from her post as director. 34. The applicant also pointed out that even though the main aim of her statements had been to deny M.U. ’ s accusations rather than to point to irregularities in the running of the company, the information she had given in reply had been of public interest. Furthermore, that information had been accurate, fair and authentic. In particular, her statement that collecting parking fees was unlawful before the issue of ownership had been resolved had been a true fact. The applicant could not see how disclosing that information to the public, which had not been a business secret, with a view to denying publicly made false accusations against her, could have harmed the company ’ s business reputation, or why disclosing such information constituted an important fact that had rendered the continuation of her employment impossible. (b) The Government 35. The Government admitted that the applicant ’ s dismissal on account of her statements to the media had amounted to an interference with her freedom of expression. However, they argued that the interference had been in accordance with the law, had pursued a legitimate aim, and had been necessary in a democratic society. 36. The Government noted that the applicant had been summarily dismissed because of statements she had made in the media which had suggested that the company she had headed had been charging for parking illegally, and because she had publicly urged the prosecuting authorities to examine the legality of the company ’ s operations. The Supreme Court had considered the applicant ’ s dismissal lawful because those statements had tarnished the business reputation of KD Kostrena, the company of which she had been the director, which had been a particularly important fact in terms of section 107 of the Labour Act (see paragraph 23 above) and which had meant that her employment at the company could not continue. 37. In view of that, the Government argued that the decision to dismiss the applicant had been lawful because it had been based on section 107 of the Labour Act (see paragraph 23 above), and had sought to protect the reputation and the rights of others, namely the business reputation of KD Kostrena. That interference had also been “necessary in a democratic society”, having regard to the criteria established in the Court ’ s case-law (the Government cited Heinisch v. Germany, no. 28274/08, ECHR 2011 (extracts), and Balenović v. Croatia (dec.), no. 28369/07, 30 September 2010), that is: - the motive behind the applicant ’ s statements; - the authenticity of the information disclosed; - the availability of other effective, but more discreet, means of remedying the alleged wrongdoing; - the damage suffered by the company; - the public interest involved in the information that was disclosed. 38. As regards the applicant ’ s motive, the Government argued that there was no dispute about the fact that she had made the impugned statements in reaction to the previous media statements by M.U., who had been the municipal mayor and the chairman of the company ’ s General Meeting. He had publicly criticised the quality of her performance as the director of the company by stressing that the company had stagnated under her leadership, an opinion which he had illustrated by mentioning some of her business decisions which he had considered unsound (see paragraph 7 above). In other words, when making the impugned statements and revealing the alleged unlawful activities of the company she had headed, the applicant had been motivated exclusively by a wish to protect her public image rather than by a genuine concern for the company ’ s business interests or the interests of those who used its services. For that reason the present case should not be regarded as a so-called whistle-blower case, nor should her detailed explanation for the origin of her conflict with M.U. (see paragraphs 28-30 above) be of any relevance. In that connection the Government referred to the Court ’ s case-law (see Guja v. Moldova [GC], no. 14277/04, § 77, ECHR 2008) under which acts motivated by a personal grievance or personal antagonism did not justify a particularly strong level of protection under Article 10 of the Convention. 39. As regards the authenticity of the information she had disclosed, the Government submitted that not a single State authority (the State Attorney ’ s Office, domestic courts or the State Audit Office) had ever established any instance of unlawfulness in relation to KD Kostrena ’ s charging for parking, let alone that it had constituted a criminal offence, as insinuated by the applicant in her statements to the press. In particular, the two sets of civil proceedings referred to by the applicant (see paragraphs 19-20 and 29 above) were still ongoing. The Government also noted that the applicant had offered no evidence of such alleged unlawfulness before the courts that had decided on the lawfulness of her dismissal. In the Government ’ s view those allegations thus remained nothing but arbitrary and unproven assertions detrimental to the business reputation of the municipal utility company. That view was further reinforced by the fact that in her observations to the Court the applicant had not even attempted to explain why she had believed that the prosecuting authorities should have intervened over the allegedly unlawful charging for parking. On the contrary, she had submitted that there had been no grounds to lodge a criminal complaint in that regard (see paragraph 32 above). That suggested that the applicant had been aware that no crime had been committed but had nevertheless called for the intervention of the prosecuting authorities. That further meant that she had deliberately misled the public to believe that the company she had headed had been involved in criminal activities. 40. As regards the availability of other effective, but more discreet, means of remedying the alleged wrongdoing, the Government, referring to the applicant ’ s motives set out above (see paragraph 38), argued that the proper channel for defending her rights and reputation had been to bring a civil action against M.U. rather than publicly insinuating that criminal activities were being carried by the company and drawing it, through no fault of its own, into the public debate she had had with him. In that way the applicant would have protected her public image (as well as the public interest, if any, see paragraph 34 above and paragraph 42 below) without any risk to her employment (see section 108 of the Labour Act, cited in paragraph 23 above). 41. As regards the damage suffered by the company, the Government noted, firstly, that the Court had itself held that even State-owned companies could have an interest in their own commercial viability (see Heinisch, cited above, § 89 ). Therefore, even though KD Kostrena primarily provided public utility services (see paragraph 6 above) that did not mean that it had no commercial interests to protect, which could be jeopardised by tarnishing its business reputation. That was especially so because, apart from public utility services, the company also provided some commercial services (such as leasing sports facilities) and as such competed on the open market. Tarnishing its business reputation could therefore lead to difficulties in charging for the public utility services and to reduced interest in its commercial services. The Government stressed that the applicant ’ s statements insinuating that the company had been engaged in criminal activities had been particularly harmful for its business reputation and, consequently, for its commercial interests because she had been the company ’ s director and as such, in the eyes of the average reader, a trustworthy source of information. 42. Lastly, as regards the public interest involved, the Government did not deny that the public had an interest in knowing if public utility companies engaged in criminal activities. However, they reiterated their view that the applicant had not acted bona fide (see paragraphs 38-39 above). Moreover, the Government found it difficult to imagine what public interest would have been served by the applicant ’ s obviously false insinuations about the company carrying out criminal activities, where even the applicant herself had known that no crime had been committed (see paragraph 39 above). 43. In conclusion, the Government submitted that the applicant, by making the above-mentioned unproven allegations in the media which had been harmful for the business reputation of the company she had headed, had breached her duty of loyalty towards the company as her employer. Her only motivation for doing so had been to protect her own interests in the public debate with the mayor of the municipality, which had been the company ’ s sole shareholder. In his media statements M.U. had criticised the applicant only for unsound business decisions rather than for any unlawfulness in doing business, meaning she had not needed to defend herself. The applicant had indisputably had the right to publicly deny media allegations which harmed her reputation, or institute the relevant proceedings, or do both of those things. However, in response to M.U. ’ s criticism the applicant had picked as her “weapon of choice” in the public debate the alleged unlawful charging for parking, which she had also mentioned as being of interest to the prosecuting authorities. That was how she had involved the company of which she had been the director in her media debate with the mayor, causing harm to its business reputation. That was also why she had been dismissed from her job, a measure which, albeit severe, had not been disproportionate in the circumstances and which had therefore been “necessary in a democratic society”, it being understood that no employer should tolerate being slandered in public by its employees. 44. For those reasons, the Government asked the Court to find no violation of Article 10 of the Convention. 2. The Court ’ s assessment (a) Whether there was an interference 45. The Government conceded that the applicant ’ s dismissal on account of her statements to the press had constituted an interference with her right to freedom of expression, as guaranteed by Article 10 § 1 of the Convention (see paragraph 35 above). The Court, having regard to its case-law (see, for example, Heinisch, cited above, § § 44-45; Balenović, cited above; and Wojtas-Kaleta v. Poland, no. 20436/02, § 42, 16 July 2009 ), sees no reason to hold otherwise. (b) Lawfulness and legitimate aim 46. The Court further notes that the Supreme Court in its judgment of 6 October 2009 (see paragraph 16 above) considered the applicant ’ s dismissal lawful because, by her statements in the press, she had harmed the reputation of KD Kostrena, the company of which she had been the director. As held by the Supreme Court, those statements had constituted an important fact making the continuation of her employment impossible and had therefore been grounds for summary dismissal under section 107(1) of the Labour Act (see paragraphs 16 and 23 above). 47. That being so, the Court therefore accepts that the interference was prescribed by law and that it pursued the legitimate aim of protecting the reputation or rights of others, namely the business reputation and interests of KD Kostrena (see, mutatis mutandis, Balenović, cited above ). 48. Having established that the interference with the applicant ’ s freedom of expression in the present case was lawful and pursued a legitimate aim, the only question for the Court to determine is whether that interference was “necessary in a democratic society”. (c) “Necessary in a democratic society” 49. The general principles in the Court ’ s case-law on the requirement of necessity in a democratic society in the context of Article 10 of the Convention are summarised in Perinçek v. Switzerland ([GC], no. 27510/08, § 196, ECHR 2015 (extracts)) and Europapress Holding d.o.o. v. Croatia (no. 25333/06, § 54, 22 October 2009). 50. The applicant argued (see paragraphs 31-32 above) that she had made the impugned media statements in the exercise of her constitutionally guaranteed right of reply. She added that she had acted primarily with a view to responding to what she had seen as groundless criticism of her in the same newspaper by another officer of the same company, namely the chairman of its General Meeting, who had also been the municipal mayor. In that connection the Court reiterates that the right of rectification or of reply, as an important element of freedom of expression, falls within the scope of Article 10 of the Convention (see Kaperzyński v. Poland, no. 43206/07, § 66, 3 April 2012, and Melnychuk v. Ukraine (dec.), no. 28743/03, ECHR 2005-IX). This flows from the need not only to be able to contest untruthful information, but also to ensure a plurality of opinions, especially in matters of general interest (ibid.). At the same time, the restrictions and limitations of the second paragraph of Article 10 are equally pertinent to the exercise of that right (see Melnychuk, cited above). 51. The Government argued (see paragraph 37 above) that those restrictions and limitations, especially the requirement that they must be “necessary in a democratic society”, should in the present case be viewed in the light of the criteria developed by the Court in its case-law concerning freedom of expression in the workplace (see, among many other authorities, Guja, cited above, §§ 69-96; Heinisch, cited above, §§ 62-92; Balenović, cited above; Wojtas-Kaleta, cited above, §§ 41-53; and Fuentes Bobo v. Spain, no. 39293/98, §§ 43-50, 29 February 2000), namely having regard to: - the motive behind the actions of the employee; - the authenticity of the information disclosed; - the availability of other effective, but more discreet, means of remedying the wrongdoing which the reporting employee intended to uncover; - the damage suffered by the employer; - the public interest involved in the disclosed information. 52. The Court, however, considers that the present case is different from those cases in one crucial respect. In particular, the Court cannot disregard the fact that the applicant made the impugned statements only after she had herself been criticised in the media by the chairman of the company ’ s General Meeting. It is true that “a duty of loyalty, reserve and discretion” normally prevents employees from publicly criticising the work of their employers (see, for example, Wojtas-Kaleta, cited above, § 43, 16 July 2009, and Guja, cited above, § 70). However, in the present case it was another officer of the company, namely the chairman of the company ’ s General Meeting, who had been the first to resort to the media and had publicly criticised the applicant ’ s work. The Court considers that in such specific circumstances it could not have been expected of the applicant that she should remain silent and not defend her reputation in the same way. To do so would overstretch her duty of loyalty, contrary to Article 10 of the Convention which, inter alia, requires that an employee ’ s freedom of expression is secured against unreasonable demands of loyalty by his or her employer (see Predota v. Austria (dec.), no. 28962/95, 18 January 2000, and Rommelfanger v. Germany, no. 12242/86, Commission decision of 6 September 1989, Decisions and Reports (DR) 62, pp. 151 and 161). 53. This means in addition that several of the criteria relied on by the Government concerning freedom of expression in the workplace (see paragraphs 37 and 51 above) are either inapplicable or of limited relevance to the present case. 54. In particular, since the right of reply is the right to defend oneself against public criticism in the same forum where the criticism was published (see, implicitly, Kaperzyński, cited above, loc. cit.) the Court finds irrelevant the Government ’ s arguments that the applicant had other effective, but more discreet, means of protecting her reputation, and that she was motivated exclusively by the wish to protect her public image rather than to inform the public of matters of general concern (see paragraphs 38 and 40 above). 55. Furthermore, as regards the damage suffered by the company (see paragraph 41 above), the Court accepts that the applicant ’ s statements could have been harmful for the business reputation of the company. 56. In that connection the Court also notes that in circumstances such as those in the present case it has to take into account the role played by M.U., who made the statements critical of the applicant and who was an officer of the company whose business reputation was allegedly hurt by her reply. For example, in the case of Nilsen and Johnsen v. Norway ([GC], no. 23118/93, ECHR 1999 ‑ VIII) the applicants had been punished for statements they had made as representatives of police associations in response to certain reports publicising allegations of police misconduct. The Court, in finding a violation of Article 10 of the Convention, took into account, inter alia, the harsh criticism initially voiced by the plaintiff, holding that the applicants had therefore not been entirely unjustified in claiming that they had been entitled to “hit back in the same way” (ibid., § 52). 57. As regards the public interest involved in the disclosed information, the Court reiterates first of all that the right of reply not only protects the reputation of the person exercising it, but also ensures a plurality of opinions, especially in matters of general interest (see paragraph 50 above and the cases cited therein). The Court further considers that the operation of a municipal public utility company is a matter of general interest for the local community. The Court therefore agrees with the applicant that even though the main aim of her statements had been to deny M.U. ’ s accusations rather than to point to irregularities, the information she gave in reply was of public interest (see paragraph 34 above). 58. However, even in a debate on matters of serious public concern, there may be limits to the right to freedom of expression. Therefore, in exercising her right of reply the applicant had to act within the bounds set for the protection of the reputation and the rights of others (see paragraph 47 above). What is in issue is whether the applicant exceeded the limits of permissible criticism (see, mutatis mutandis, Nilsen and Johnsen, cited above, § 47). 59. This issue is closely linked with another criterion, relied on by the Government, concerning the authenticity of the information disclosed. The Government seemed to argue (see paragraph 39 above) that by urging the prosecuting authorities to check her work the applicant had gone too far in defending her reputation as that invitation had implied that the company she headed was engaged in unlawful and criminal activities. 60. As regards the alleged unlawful collection of parking fees, the Court notes that the applicant did not expressly state in the impugned article that the company had been collecting parking fees “unlawfully” or “illegally”. Rather, she stated that the company had been charging for parking on land which was not owned by Kostrena Municipality (see paragraph 8 above). The Government did not seem to call into question the fact that the company had indeed been collecting fees from the parking lots at issue. Likewise, apart from submitting that the relevant proceedings were ongoing (see paragraph 39 above), the Government did not challenge the fact that those parking lots had been located on someone else ’ s land. That being so, and having regard to the information in the land register (see paragraphs 19 and 30 above), the Court considers that the applicant ’ s statement concerning the collection of parking fees did not contain factual inaccuracies. 61. However, having regard to the applicant ’ s observations (see paragraph 34 above), where she expressly stated that collecting parking fees had been unlawful, the Court is ready to accept that that was the message she had intended to convey by stating in the impugned article that the company had been charging for parking on land not owned by the municipality. Even though both parties seem to agree that that was a statement of fact (see paragraphs 34 and 39 above), the Court disagrees because the use of the adjective “unlawful” suggests that the applicant was merely drawing an inference from the facts discussed above (see the preceding paragraph). The Court reiterates that drawing inferences from existing facts is generally intended to convey opinions, and is thus more akin to value judgments (see Stojanović v. Croatia, no. 23160/09, § 69, 19 September 2013). Therefore, the applicant ’ s statement implying that the company had been unlawfully charging for parking is to be seen as a value judgment which had a sufficient factual basis because it could reasonably be argued that collecting parking fees on someone else ’ s land was unlawful. 62. Lastly, the Court considers that that statement was directly relevant to the aim she had intended to achieve by her public declaration, namely to defend her professional reputation against what she saw as groundless criticism by M.U. In particular, the applicant tried to explain that the company had not been stagnating because of her unsound business decisions but because of unresolved property issues the municipality should have dealt with. More specifically, she had wanted to explain how those unresolved issues had prevented her from raising income for the company by charging for parking at the parking lots in question. 63. As regards the Government ’ s argument that the applicant had insinuated that the company had been engaged in criminal activities, the Court finds it useful to repeat her exact words, as reported in the article of 27 September 2009. The applicant stated, in particular (see paragraph 8 above): “ Given that my work has been called into question I demand an audit of KD Kostrena, and the involvement of [the prosecuting authorities]. ” That sentence, taken together with the general defensive tone of her other statements in the same article, cannot, in the Court ’ s view, leave an impression in the mind of the average reader that the company was involved in criminal activities. That statement holds true if for no other reason than that the applicant, being the company ’ s director, would otherwise have effectively implicated herself in such activities. On the contrary, reading the impugned article, and that sentence in particular, leaves the impression that the applicant was so firmly persuaded that there was nothing wrong in the way she had been running the company that she was even ready to submit to an audit and an investigation by the prosecuting authorities with a view to definitively dispelling any uncertainty in that respect. Therefore, contrary to the Supreme Court ’ s view, which was reiterated by the Government (see paragraphs 16 and 42-43 above), the Court does not find that the applicant insinuated that what, in her view, had amounted to unlawful charging for parking by the company had also constituted a criminal offence. 64. For those reasons (see paragraphs 50-63 above), the Court considers that the applicant ’ s statements in reply to those of M.U. were not disproportionate and did not exceed the limits of permissible criticism. Accordingly, the Court finds that the interference with the applicant ’ s freedom of expression in the form of her summary dismissal was not “necessary in a democratic society” for the protection of the business reputation and the rights of the company she headed. 65. This finding obviates the need to further examine the nature and severity of the sanction imposed, namely the applicant ’ s dismissal, as factors to be taken into account when assessing the proportionality of the interference (see, for example, Europapress Holding d.o.o., cited above, loc. cit.). 66. There has accordingly been a violation of Article 10 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 67. 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 68. The applicant claimed a total of 104,789.31 euros (EUR) in respect of pecuniary damage. Of that, EUR 97,590 constituted loss of earnings for the salary she would have received as KD Kostrena ’ s director had she not been dismissed. The remaining EUR 7,199.31 is the increased interest and costs for a loan she had to renegotiate because she had been dismissed. 69. The applicant also claimed EUR 57,320 in respect of non-pecuniary damage. 70. The Government contested these claims. 71. As regards the applicant ’ s claim for pecuniary damage, the Court reiterates that a judgment in which it finds a breach imposes on the respondent State a legal obligation to put an end to the breach and make reparation for its consequences. If national law does not allow – or allows only partial – reparation to be made, Article 41 empowers the Court to afford the injured party such satisfaction as appears to it to be appropriate (see Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, §§ 32-33, ECHR 2000-XI). In this connection the Court notes that under section 428a of the Civil Procedure Act (see paragraph 24 above) an applicant may seek the reopening of the civil proceedings in respect of which the Court has found a violation of the Convention. Given the nature of the applicant ’ s complaint under Article 10 of the Convention and the reasons for which it has found a violation of that Article, the Court considers that in the present case the most appropriate way to repair the consequences of that violation would be to reopen the proceedings complained of. As domestic law allows such reparation to be made, the Court considers that there is no call to award the applicant any sum in respect of pecuniary damage. It therefore rejects that claim. 72. On the other hand, the Court finds that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, the Court awards her EUR 1,500 under that head, plus any tax that may be chargeable on that amount. B. Costs and expenses 73. The applicant also claimed EUR 9,805 for the costs and expenses incurred before the domestic courts. 74. The Government contested that claim. 75. The Court notes that the applicant did not submit any claim for costs and expenses incurred in the proceedings before it. The Court therefore considers that there is no call to award her any sum on that account. 76. The applicant ’ s claim for costs and expenses incurred in the domestic proceedings must likewise be rejected, given that she will be able to claim those costs in the proceedings following her petition for reopening (see paragraph 71 above, and Stojanović v. Croatia, no. 23160/09, § 84, 19 September 2013 ). C. Default interest 77. 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 applicant’s freedom of expression in the form of her summary dismissal had not been necessary in a democratic society to protect the reputation and rights of the company. The Court noted in particular that, while a duty of loyalty, reserve and discretion normally prevented employees from publicly criticising the work of their employers, crucially in the applicant’s case it was another officer of the company who was the first to resort to the media and to publicly criticise the applicant’s work. In such specific circumstances the applicant could not have been expected to remain silent and not to defend her reputation in the same way. It would be to overstretch her duty of loyalty to require otherwise. |
729 | Environmental risks and access to information | II. RELEVANT DOMESTIC LAW 162. At the Court ’ s request, the Government submitted numerous particulars of legal instruments adopted with a view to protecting the safety of divers. In the light of the factual circumstances complained of in the instant case, the following legal texts appear particularly noteworthy. 163. From the Royal Decree of 15 May 1964, laid down pursuant to the Continental Shelf Act of 21 June 1963 ( kontinentalsokkelloven ), it followed that exploration on the Shelf had to be carried out "in a prudent manner". This was continued in the Royal Decree of 9 April 1965, with a view to exploration for and exploitation of petroleum deposits, while emphasising that the relevant ministry could issue more specific safety rules ( Article 37) and appoint inspectors ( Article 45). 164. The first independent safety regulations relating to exploration and drilling (not production), laid down in the Royal Decree of 25 August 1967, maintained the requirement that exploration and drilling should take place in a prudent manner in accordance with good and reasonable practices ( Article 4), and in Article 121 contained special rules regarding diving: “A plan shall be submitted for approval, to the Ministry or anyone authorised by it on how diving operations are to be conducted before the work is commenced. The plan shall contain details concerning the equipment to be used and what safety precautions will be taken to protect the life and health of the diver. Unless the diver has an approved Norwegian diver ’ s certificate, permission must be obtained in advance from the Ministry or anyone authorised by it before diving operations can commence. Diving operations must be carried out in a safe manner according to the regulations in force at any time.” 165. Authority under this provision was delegated to the Norwegian Labour Inspection Authority, which on 26 March 1971 sent a circular to ‘ All diving operators ... on the Norwegian Continental Shelf ’. The circular included, inter alia, an English translation of Article 121, together with a requirement that diving bells were always to be used under certain specific circumstances. 166. On 1 July 1978 the Petroleum Directorate adopted with immediate effect a Temporary Regulation on Diving on the Norwegian Continental Shelf, a comprehensive set of rules setting out specific safety requirements for diving operations, including supervision of decompression, divers, diving contractors, diving supervisors, diving equipment, breathing gas, evacuation under pressure, fire protection, and log booking. The latter was to contain, inter alia, the maximum depth reached on each dive, the bottom time on each dive, the type of equipment and breathing mixtures used, the work done by the diver on each occasion, the decompression procedure followed by the diver on each occasion (including the designation of the decompression tables used and possible deviations from these), any decompression sickness, other illness, discomfort or injury suffered by the diver, any other factors relevant to the safety and health of the diver, and any dangerous occurrences or irregularities. 167. The 1978 Regulation also set specific requirements as regards the medical fitness and qualifications of divers, the safety of the divers ’ environment (temperature, humidity, noise and sanitary conditions and heating systems), and breathing mixture, amongst others. It further provided that the diving contractor was to have a liaison agreement with a medical doctor experienced in hyperbaric medicine and approved by the Directorate of Health. That doctor was to work out instructions and follow up the diving operations and the diving tables by assessment of reports with regard to medical matters referred to in the diving operations logbook, within a reasonable time and not later than six weeks after the dive, so that necessary improvements with respect to plant, equipment and procedures could be made. The above-mentioned assessments should always be available to the Petroleum Directorate. 168. Article 3.4 (“Approval procedure”) of the Regulation provided: “No diving operation shall start before the Petroleum Directorate have approved the diving rules in accordance with Appendix 1 and details about the equipment which will be used during the operations. The above- mentioned documents shall be submitted to the Petroleum Directorate at least twenty-one days prior to commencement of the diving operations.” Article 3(k) of the Appendix listed “compression and decompression tables” among the elements defined as procedures during diving. Pursuant to Article 5.3 (“Accessibility to the diving rules”) of the Regulation, “[a]ny person engaged in or likely to be engaged in diving operations, shall have access to a copy of the diving rules or a document setting out the effect of the rules as far as they concern that person.” 169. In 19 80 the Directorate issued a revised version of the 1978 Regulation introducing for instance diving licence requirements, new competency requirements, time limitations on the periods during which a diver could be kept in saturation, in water and in a diving bell, and stricter requirements for reporting accidents. 170. The Government also submitted copies of Regulations of 1980 and 1984 on diving systems control, of four Royal Decrees of 28 June 1985, on safety supervision, internal control, internal control for ship owners and supervision of safety measures, which had been issued following the adoption of the Petroleum Activities Act 1985 ( petroleumsloven ). In addition they submitted a series of more recent regulations issued in 1990, 2001 and 2003, as well as several royal decrees and regulations from 2010. The Government drew attention to a legislative amendment of 8 March 1995 whereby the 1977 Working Environment Act was made fully applicable to offshore activities. THE LAW I. ALLEGED VIOLATION OF ARTICLES 2 AND 8 OF THE CONVENTION 171. The applicants complained that they had sustained damage to their health after working in diving operations in the North Sea and, as regards the second, third and fourth applicants, also following their participation in certain test dives. This had resulted from the failure of the Norwegian authorities to protect their rights under Articles 2 and 8 of the Convention which, in so far as is relevant, read: 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 8 “1. Everyone has the right to respect for his private ... life ... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of ... the economic well-being of the country ..., for the protection of health ..., or for the protection of the rights and freedoms of others.” 172. The Government contested that argument. A. Admissibility 173. In their written pleadings to the Court the Government conceded that Mr Vilnes and Mr Muledal had exhausted domestic remedies but argued that, in the absence of any information to the contrary, Mr Lindahl, Mr Sigurdur P. Hafsteinsson, Mr Nygård, Mr Nesdal and Mr Jakobsen had not. However, they refrained from pursuing the argument at the oral hearing before the Court. 174. The Government also affirmed that they would not challenge the applicants ’ victim status within the meaning of Article 34 on account of the various amounts paid to them in compensation in acknowledgment of political and moral responsibility. 175. On the other hand, the Government invited the Court to declare the complaints of all seven applicants inadmissible as incompatible ratione materiae with the provisions of the Convention, or in any event as manifestly ill-founded, in accordance with Article 35 §§ 3 and 4. 176. The applicants asked the Court to reject the Government ’ s invitation to declare their complaints inadmissible on substantive grounds. 177. As regards the issue of exhaustion of domestic remedies, the third to seventh applicants pointed out that with the agreement of the Government the judicial proceedings concerning these applicants had been adjourned pending the outcome of, inter alia, Mr Vilnes and Mr Muledal ’ s case (see paragraphs 114 to 117 above). From the Supreme Court ’ s judgment of 8 October 2009 it was clear that the third to seventh applicants would have had no prospects of success if they had pursued their case before the domestic courts (see paragraphs 144 to 159 above). 178. The Court, having regard to the parties ’ submissions, is satisfied that both the first and second applicants have exhausted domestic remedies as required by Article 35 § 1 of the Convention with respect to their complaints under Articles 2 and 8 of the Convention. Moreover, in view of the reasoning and outcome of the proceedings pursued by them and which ended in the Supreme Court ’ s judgment of 8 October 2009 (see paragraphs 143 to 159 above), the Court accepts that there were special circumstances which absolved the third to seventh applicants from their normal obligation to exhaust domestic remedies with respect to their complaints under the same provisions ( see Akdivar and Others v. Turkey, 16 September 1996, § 67, Reports of Judgments and Decisions 1996 IV, and Van Oosterwijck v. Belgium, 6 November 1980, §§ 36 to 40, Series A no. 40 ). The Court further observes that the said complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention nor inadmissible on any other grounds. The applicants ’ complaints under Articles 2 and 8 must therefore be declared admissible. B. Merits 1. The applicants ’ submissions 179. The applicants complained generally, with reference to Article 2, that the respondent State had failed to take necessary measures to prevent the divers ’ lives from being put at risk that was avoidable; in particular, they had failed to ensure that a legal framework of safety regulations was in place to protect the divers, had automatically and widely granted exemptions from safety regulations, had failed to carry out adequate supervision in order to identify and take corrective measures in respect of defects endangering human lives, and had made it possible for the diving companies to use too - rapid decompression tables, despite the frequent occurrence of decompression sickness among divers. Adequate measures would have included the harmonising of decompression tables, the provision of on-the- spot medical assistance during diving operations, requirements for diving competence and other professional competence and technical expertise, the availability of real means of evacuation, proper maintenance of equipment, fewer dispensations being given and further legislative and licensing measures being taken. As early as the 1970s it ought to have been possible for the State to take such measures, many of which could have been taken without any additional funding and legislation being needed. The applicants prayed in aid the following judgments by the Court : L.C.B., cited above, §§ 36-41 and 46; Öneryıldız, cited above, § 71; Budayeva and Others, cited above, §§ 130 and 175; and Öçkan and Others v. Turkey ( no. 46771/99, §§ 40-50 and 57, 28 March 2006 ). The applicants emphasised that Article 2 covered the workplace ( see Pereira Henriques v. Luxembourg, no. 60255/00, §§ 59-63, 9 May 2006 ) and the State ’ s duty to take appropriate steps to safeguard citizens from being avoidably put at risk applied to all dangerous activities, in particular industrial risks ( see Budayeva, cited above, §§ 130 and 175). 180. More specifically on the subject of decompression tables, the applicants submitted that, according to information provided by diving companies, decompression sickness had occurred at a rate of five per cent. It followed that a diver would contract the illness after every twentieth decompression. If on average four divers took part in every diving operation, decompression would occur every fifth operation. Accordingly, most divers would contract the illness in the course of their career. 181. The State had been aware that the rapid decompression tables had been a central factor in competition between diving companies, a factor that the State could have eliminated even during the pioneer period by requiring, inter alia, the standardising of tables and/or the setting of conditions for the approval of individual diving operations. Decompression sickness had been practically eradicated in 1990 after the introduction, on the initiative of diving companies, of standard requirements for diving tables. All the companies had been positive about this. As a consequence, diving tables were no longer a competitive factor. 182. The applicants argued that the State ought to have ensured that the diving tables used were among the most conservative ones, that the tables formed part of the basis for authorising diving operations, and that the choice of tables be eliminated as a competitive factor. It ought to have been possible for the State to impose transparency about and the harmonising of tables. Leaving this matter to the diving companies and/or the operators had been irresponsible, since these were in competition and the non-disclosure of rapid tables had increased their opportunity to obtain contracts. 183. The respondent State had failed in its duty to provide information ( see Öneryıldız, cited above). It would not have been difficult for the State – in its capacity as a legislative and executive authority and as an authority granting authorisations – to require openness about tables and the harmonisation of tables. The applicants had not been sufficiently informed about the risk to which they had exposed themselves when accepting diving assignments in the North Sea. 184. On the contrary, Mr Vilnes stressed, he had been informed that the dives had been authorised by the State, that decompression sickness would not lead to lasting disabilities (except for bone necrosis) and that such illness could be safely treated if done according to available tables. He had not been informed that by accepting diving assignments he risked permanent damage to his brain, bone marrow, nerves, and hearing, and extensive psychological damage after diving, even after using the tables. Mr Vilnes argued that he had never been given any insight into the tables. The principles of the tables had not only been recognised as confidential but had also been incomprehensible to those concerned. 185. Similarly, the other six applicants complained that not only had the Norwegian authorities refrained from abolishing dangerous diving tables but also that, because of their confidentiality, the divers had not known whether or not they were agreeing to work with the use of dangerous diving tables when they agreed to work for a diving company. A further aspect of the matter had been that when diving sickness occurred, the divers had not benefitted from any medical advice on the spot, but critical treatment had been carried out “by colleagues, according to a table booklet which they had been given at the time.” 186. The applicants submitted that, despite the frequent occurrence of decompression sickness among divers, the authorities had allowed the companies to keep decompression tables secret, whilst being aware that decompression speed was a competition factor between the diving companies, and that regard for divers ’ health thus ran counter to strong commercial interests. An illustration of this was the Petroleum Directorate ’ s letter of 21 June 1984 to the Diving Medical Advisory Committee in 1984 (see paragraph 84 above). There could be no doubt that the Norwegian authorities had been aware of the risks involved in North Sea diving operations. They had a duty to take appropriate, effective measures. To share the information with those at risk would often be the easiest accessible and most rudimentary measure to safeguard Convention rights laid down in Articles 2 and 8 of the Convention. According to the Court ’ s case-law, the respondent State had a duty to provide effective protection for the applicants, with a particular emphasis on the duty to provide information about the risks involved in diving operations and rapid tables. 187. In North Sea diving operations the word was that diving was prudent and state- approved, which also followed from the statutory regulations. Without the objective facts about the disturbing differences between tables, and the high occurrence and consequences of decompression sickness related to the tables in use, divers had no opportunity to make a meaningful assessment of the risks involved in the operations. Therefore, the Norwegian authorities had a duty to provide divers with the information necessary to assess the real risk level, including the escalation of risk connected to table competition. The State should in the least have made the risks involved in the diving tables known to the applicants by requiring disclosure of the tables, by providing the divers with a risk assessment of the use of the tables on operations without doctors available for treatment, and by providing information about the conditions on which the authorities approved the tables - or rather the absence of any such conditions. 188. Mr Vilnes had never consented to or acted in a way that could be taken to mean that he had consented to the use of rapid tables, nor had any of the other applicants given such consent. Their health had been adversely affected by the use of rapid decompression tables, as they had had immediate and prolonged symptoms of decompression sickness as well as long - term illnesses causing occupational disability. As the High Court had found, Mr Vilnes ’ brain and spinal cord damage had probably been caused wholly or in part by a combination of a too- rapid table and the absence of a medical doctor for treatment. The applicants submitted that their respective cases of brain, nerve, and lung damage had been caused by the tables in question, as had Mr Lindahl ’ s hearing impairment. 189. The Government had provided no reasonable explanation to justify why for twenty-five years they had not obliged the diving companies to disclose their decompression tables or to comply with the most conservative tables and their own standard of due care. Notwithstanding the standard of due care applicable to diving procedures pursuant to Article 121 of the Royal Decree of 1967 (see paragraph 164 above), the Labour Inspection Authority had approved the procedures regardless of the diving tables, and in most cases without even having access to them (Lossius Report page 74). 190. Had they been given access to all the diving tables, the applicants might have been able to compare the tables and to assess the risks themselves. They might have been alarmed by the great differences in decompression times and might have opted to work elsewhere. The disclosure of the tables ought to have been combined with a risk assessment by the authorities, in order to give the divers sufficient knowledge to assess the risks involved. 191. Moreover, the disclosure of the tables would have generated public pressure on the diving companies, fear on their part of being unable to obtain contracts and to recruit divers, and might conceivably have compelled them to use the most conservative tables. Had the authorities in addition discontinued or improved their own practice of pre - approving tables regardless of whether they were safe, there would clearly have been a significant effect on the diving companies ’ use of rapid tables. 192. The Norwegian Labour Inspection Authority ’ s letter to the University of Zurich of 16 April 1973 (see paragraph 83 [5] above) showed that even at the very beginning of the applicants ’ careers in the North Sea, the State considered that the disclosure of decompression tables would result in harmonisation of the decompression tables, focusing on the divers ’ health and lives, not only on the financial benefits of rapid decompression. 193. Mr Vilnes in addition complained that four specific acts or omissions highlighted in his appeal to the Supreme Court (the prior authorisations of the diving operations from (i) Arctic Surveyor (ii) Tender Comet; (iii) the dispensation given from the requirement as to the maximum length of umbilical used and (iv) the failure to stop the Tender Comet diving operation ) constituted a failure on the part of the authorities of the respondent State to protect his right to life under Article 2 of the Convention. 194. Mr Muledal, Mr Lindahl and Mr Sigurdur P. Hafsteinsson added to their complaint certain grievances related to their experiences of test diving (see paragraphs 44, 50, 57, and 109 to 112 above). They alleged that the State should not have permitted such experiments on human beings for the sole purpose of boosting economic prosperity, but should rather have allocated resources to the development of technical means of solving the issue of maintenance of deep- water pipes. The test diving had endangered the lives of divers who had been unable to withdraw voluntarily, in violation of their right to protection of life and with reference to the Helsinki declaration. 195. The State had been one of the owners of the NUI facilities until 1985, and had laid down the conditions for petroleum exploitation in the North Sea, obliging the oil companies to prove that it was possible to install and maintain pipes down to 400 metres, thus obliging test dives to take place. The State also had observers at the test site. Several medical experts had publicly expressed worries that health concerns had been pushed aside. On site, the authorities observed that dives were not aborted : even when divers lost consciousness or demanded an "all stop" there was no intervention. Although aware of the ongoing activities and the risks and damage to health involved, the State had not intervened to set any limits on test diving. 196. In the NUTEC preparation of the Troll dive in 1985, down to 450 metres, and in which Mr Sigurdur P. Hafsteinsson had participated, the divers were informed that the relevant diving tables had previously been used during the Deep Ex dives, in which there had been no signs of decompression sickness. However, the divers who had participated in the Deep Ex dives had experienced serious signs of decompression sickness. 197. The participant divers also received an Instruction for Training Programme for Onshore Manned Verification from their employer. The Instruction advised the test divers that doppler ultrasound technique would be used to monitor the presence or absence of gas emboli in the carotid artery. Moreover, they were informed that this procedure had been used previously on two deep dives at NUTEC with satisfactory results. However, when the same procedure was used during the Deep Ex I and II dives, it revealed that gas bubbles were entering the divers ’ heads during decompression but disturbingly never exited their heads. Those who were still alive were questioning the long- term effects of these cerebral bubbles. Whilst all the test divers who had taken part in the Deep Ex dives had been injured, the information given by the employers to the Troll test divers, namely that the procedure had been used previously with satisfactory results, was therefore misleading and not in compliance with the Helsinki declaration requirements of an informed consent. 198. On several occasions the Ethical Committee had approved test dives which had already taken place, thereby revealing that the ethical control of the dive and the protection of the divers were illusory. For instance, the Comex test dive down to 350 metres had commenced before it was approved by the Ethical Committee. On 27 November 1980 the Ethical Committee had approved the Deep Ex I dive, which had in fact taken place from 4 to 23 November 1980, thus prior to the approval. Given the fact that NUI/NUTEC could carry out experimental diving without seeking the prior consent of the Ethical Committee, it was clear that the experimental dive would be approved under any circumstances. The State had in fact not documented a single incident where a dive had not been approved. The review of experimental diving by the Ethical Committee thereby gave the divers a false sense of protection against dangerous and unethical experimental activity. 2. The Government ’ s submissions 199. The Government invited the Court to rely on the assessment of facts made by the Supreme Court and, concurring with the reasoning of the latter (see paragraphs 146 to 160 above) requested the Court to find no violation of Articles 2 and 8 of the Convention in the present case. 200. An important consideration was that the applicants had of their own volition and in return for considerable sums in remuneration entered into the activities in respect of which they now complained of having been victims of Convention violations. 201. Article 2 was inapplicable since, as the Court held in Makaratzis v. Greece ( [GC], no. 50385/99, § 50, ECHR 2004 ‑ XI ), “it [was] only in exceptional circumstances that physical ill-treatment ... which [did] not result in death [might] disclose a violation of Article 2 of the Convention.” In the present case, the Government stressed, the applicants were alive; the fact that other divers operating in the North Sea in the same period as the applicants had died from a variety of causes should not influence the Court ’ s assessment of whether the applicants ’ rights under Article 2 had been breached. 202. In any event, the Government were of the firm view that the respondent State had satisfied its duty to put in place a legislative and administrative framework designed to provide effective deterrence against threats to the applicants ’ right to life and enjoyed a margin of appreciation in its choice of particular measures (see Budayeva and Others, cited above, § 134). Were the Court to find a violation in the instant case it would entail placing an impossible or disproportionate burden on the Norwegian authorities (see Budayava and Others, cited above, § 135). There were no examples in the Court ’ s case-law where occupational hazards and the element of voluntary participation in dangerous activities had played a significant role in the Court ’ s assessment of whether the positive obligations under Article 2 had been complied with. 203. Nor were the matters complained of covered by the applicants ’ right to respect for “private life” within the meaning of Article 8. Whilst the applicants, relying on Roche ( cited above), claimed that Article 8 applied to the working environment, it should be noted however that in the aforementioned case the Court had found Article 8 applicable because it concerned a complaint about access to essential information which related to the particular source of risk at issue in that case ( ibid., § 155 ). The Court had taken a similar approach in McGinley and Egan v. the United Kingdom, 9 June 1998, §§ 96 and 97, Reports of Judgments and Decisions 1998 ‑ III ) where, stressing the particular circumstances at issue there, it had found Article 8 applicable because the applicants had experienced anxiety and uncertainty – feelings that impacted on their “private life” – as a combined result of their exposure to extremely hazardous and intangible dangers and their inability to procure essential information about the same dangers. 204. In so far as the Government were aware, the Court had not applied Article 8 in cases regarding occupational risk where the State ’ s obligation to protect workers from injuries had been cited. They invited the Court to adopt the same approach as in Bykov v. Ukraine (no. 26675/07 (dec.) 16 April 2009 ), where it found the applicants ’ complaints under Article 8 inadmissible as incompatible ratione materiae in so far as they cited the right to respect for private life. 205. The Government moreover asked the Court to reject the applicants ’ submission that the fact that during saturation diving they had remained in diving chambers had brought their right to respect for “home” into play. 206. Further, on the specific issue whether the authorities of the respondent State had a duty to provide the applicants with information regarding the risks involved in diving operations, in particular those related to the use of rapid decompression tables, the Government argued as follows. The case under consideration differed significantly from previous cases concerning the existence of a duty on the part of the State to provide information. Whilst McGinley and Egan and Roche (both cited above), had concerned the duty to provide information after the occurrence of health hazards, the instant case concerned a claim that the information should have been provided to individuals prior to their agreeing to carry out the professional activities in question. A further distinguishing feature was that the State ’ s involvement in the relevant activities had been confined to being a regulator and supervisor on the Norwegian Continental Shelf. The divers had not been in the employment of the Norwegian Government but had been employed, or had engaged themselves, in private ventures. To establish a duty for the authorities to actively ensure that an occupational group, prior to undertaking its work tasks, be informed about factors that could be relevant for assessing the health risks potentially involved in their private enterprise, would be to stretch the extent of positive obligations under the Convention way too far. The existing standard on access to information enunciated in Roche (cited above, § 160), requiring the establishment of “an effective and accessible procedure” enabling the persons concerned “to seek all relevant and appropriate information” had clearly been complied with in the applicants ’ case. 207. The authorities had indeed required the diving companies to impart information regarding their tables, and the latter had submitted information regarding diving procedures to the former. This arrangement had already been provided for in Article 121 of the 1967 Norwegian Diving Regulations, and had subsequently been confirmed in the 197 8 Temporary Diving Regulations. 208. It was also a fact that the applicants, as individuals who had performed the dives according to the tables, had access to the tables used in their own dives. According to Article 5.3 of the 1978 Temporary Diving Regulations (see paragraph 168 above), the divers were obliged to “be familiar” with the operational procedures to be used. Moreover, since many divers were not permanently employed by just one company but were engaged by different companies for different operations, they had also had access to the tables used by their respective employers. The applicants undoubtedly had access to the various tables today. Also, information relating to the comparison of tables had been available in a report on that subject prepared by the Petroleum Directorate in 1991. Even when the dives had been undertaken the divers had been acquainted with the challenges posed by the use of rapid tables, as specifically stated in section 5.7.4 of the Lossius Report (see paragraph 83 above). 209. More generally, by virtue of the Freedom of Information Act, whatever information was available to the authorities was in principle also accessible to the applicants. The fact that the companies regarded the tables as confidential business information might have prevented the applicants from gaining access. Whether that would have been the case could not be known, since the divers did not pursue such legal avenues. 210. The basic requirements under the positive obligations doctrine were twofold, firstly that the authorities in fact knew or ought to have known the risks involved, and secondly that on the basis of such knowledge they failed to act reasonably in accordance with it. Relying on the Supreme Court ’ s reasoning as summarised in paragraph 147 (e) and (f) above, the Government maintained that the Norwegian authorities did not fail in this regard. 211. As to what the authorities knew or ought to have known, the Government stressed that there was a broad-based opinion that diving did not have serious long-term effects if there was no decompression sickness. Decompression sickness in itself was not considered to be particularly dangerous. At the same time, it was established that the harmful mental effects of extreme life-threatening situations were known. This was essential information. The authorities did not deny that deep - sea diving could have adverse effects on the health of divers. However, there could only be certainty that those hazardous effects would occur in the event of extreme and life-threatening situations. The Norwegian authorities ’ responsibility must be measured against what was known at the time the applicants conducted their dives. In this respect, it ought to be recognised that awareness of possible health hazards related to deep dives had come gradually for all parties involved, in accordance with evolving experience, scientific development and new studies. This had been emphasised in the consensus statement from the 1993 Godøysund conference. The point that awareness had developed gradually for all parties concerned, had again been made in the report from the follow-up consensus conference in Bergen in 2005. 212. As to what the Norwegian authorities in fact did in response to what was known at the time, it ought to be observed in the first place that they took active steps to ensure that the tables in use did not constitute health risks. This was for instance the case in 1984, when some diving companies had submitted new tables for saturation diving. The Petroleum Directorate had that year initiated a project which in 1986 resulted in what became the Hempleman Report. 213. Moreover, as was shown in a table prepared by the Petroleum Directorate, from as early as 1980 there had been a dramatic reduction in the number of incidents of decompression sickness. This reduction indicated that the joint efforts of Norwegian authorities and the diving industry was already proving effective at that early stage. 214. The concept of “ harmonising ” of tables ought not to be confused, as the applicants apparently did, with two other forms of effort undertaken by the authorities : on the one hand, their general work on collecting information and experience regarding tables to enable them to evaluate ( as exemplified by the Hempleman Report from 1986, see paragraphs 85 to 88 above) the tables disclosed by the companies, and, on the other hand, their effort to develop specific national tables in the early 1970s ( mentioned in section 5.7.4 of the Lossius Report, (see paragraph 83 above ). 215. The Government further submitted that as early as 1990, when the work on harmonisation was initiated, there were “only small differences” between the companies ’ decompression tables, as evidenced by the Petroleum Directorate ’ s Report of 1991. Thus, the harmonising of tables, which was completed in 1991, was a supplement, or rather a complement, to what had already been accomplished with regard to divers ’ safety. Harmonisation was in itself not crucial for the reduction of decompression sickness. 216. In this connection, it should be borne in mind that, to the Government ’ s knowledge, no other country has yet introduced standardised tables for saturation dives. 217. Ever since operations on the Norwegian Continental Shelf began in the 1960s the Norwegian authorities had been active in reducing the risks involved in offshore diving. The extent to which they had been involved in North Sea activities through regulatory and supervisory measures had been demonstrated in detail before the Court. To this it could be added that, in order to find a scientific basis for decompression procedures and tables that would safeguard divers ’ health, they pushed research and development, allocating over time an estimated EUR 125 ,000,000 for these purposes (see section 4.2 of the Lossius Report and the Kromberg Report ). 218. Finally, the Government pointed out that the applicants had not provided the Court with sufficiently precise details to enable the Court to ascertain that there was a link of causality between the alleged violations committed by the Norwegian authorities and their individual health problems. In particular, it would not be possible for the Court to hold, on the evidence of the present case, that it was in fact omissions on the part of Norwegian authorities which had prevented the divers from assessing the health risks involved in rapid tables that had been the cause of their health problems. In the absence of the requisite details submitted by the applicants, there might be a whole range of other possible reasons why the applicants ’ health had deteriorated. 3. The Court ’ s assessment (a) Introduction 219. The Court is unable to accept the Government ’ s argument, based on Makaratzis, that Article 2 was inapplicable. That case concerned, inter alia, the use of force by police officers in a hot-pursuit operation which had not in the event been lethal. Irrespective of whether the police had actually intended to kill him, the applicant was found to be the victim of conduct which by its very nature had put his life at risk, even though he survived. The Court found there that Article 2 was applicable and sees no reason for arriving at a different conclusion in the present case. 220. In applying this provision to the instant case, the Court will have regard to the general principles stated in Öneryıldız and further elaborated in Budayeva and Others, both cited above, as summarised in Kolyadenko and Others v. Russia, nos. 17423/05, 20534/05, 20678/05, 23263/05, 24283/05 and 35673/05, §§ 157-161, 28 February 2012: “157. The Court reiterates that the positive obligation to take all appropriate steps to safeguard life for the purposes of Article 2 (see paragraph 151 above ) entails above all a primary duty on the State to put in place a legislative and administrative framework designed to provide effective deterrence against threats to the right to life (see Öneryıldız, cited above, § 89, and Budayeva and Others, cited above, § 129 ). 158. The Court considers that this 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, and a fortiori in the case of industrial activities, which by their very nature are dangerous. In the particular context of dangerous activities special emphasis must be placed on regulations geared to the special features of the activity in question, particularly with regard to the level of the potential risk to human lives. They must govern the licensing, setting up, operation, security and supervision of the activity and must make it compulsory for all those concerned to take practical measures to ensure the effective protection of citizens whose lives might be endangered by the inherent risks (see Öneryıldız, cited above, §§ 71 and 90). 159. Among these preventive measures particular emphasis should be placed on the public ’ s right to information, as established in the case-law of the Convention institutions. The relevant regulations must also provide for appropriate procedures, taking into account the technical aspects of the activity in question, for identifying shortcomings in the processes concerned and any errors committed by those responsible at different levels (see Öneryıldız, cited above, §§ 89- 90, and Budayeva and Others, cited above, § 132 ). 160. As to the choice of particular practical measures, the Court has consistently held that where the State is required to take positive measures, the choice of means is in principle a matter that falls within the Contracting State ’ s margin of appreciation. There are different avenues to ensure Convention rights, and even if the State has failed to apply one particular measure provided by domestic law, it may still fulfil its positive duty by other means. In this respect an impossible or disproportionate burden must not be imposed on the authorities without consideration being given, in particular, to the operational choices which they must make in terms of priorities and resources; this results from the wide margin of appreciation States enjoy, as the Court has previously held, in difficult social and technical spheres (see Budayeva and Others, cited above, §§ 134-35). 161. In assessing whether the respondent State complied with its positive obligation, the Court must consider the particular circumstances of the case, regard being had, among other elements, to the domestic legality of the authorities ’ acts or omissions, the domestic decision-making process, including the appropriate investigations and studies, and the complexity of the issue, especially where conflicting Convention interests are involved. 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 (see Budayeva and Others, cited above, §§ 136-37).” 221. The Court cannot but note that, apart from the seriousness of the applicants ’ allegations under the Convention, the present case is characterised by a high degree of complexity and the presence of a number of imponderable factors. Not only are the facts complained of extensive and dating far back in time, the grievances alleged by the applicants also concern a wide range of alleged failures by the authorities of the respondent State to protect them against occupational injuries raising issues of a highly technical nature. 222. The Supreme Court pointed out that diving was a risky activity and that this ought to be the starting point for the assessment. Nonetheless, the Supreme Court continued, it had been clear that the risk to which the North Sea divers had been exposed exceeded what they had the right to expect. When the diving had taken place, uncertainty had prevailed as to the injuries that later materialised. The view that many deep sea dives could lead to neurological injuries had emerged gradually. Even when the Lossius Commission had produced its report at the end of 2002, it concluded that well controlled research on later and delayed effects was missing ( NOU 2003:5, p. 43). Under these circumstances, the divers could not be regarded as having accepted the risk of after-effects that were unknown to them. (see paragraph 145 above). The Supreme Court also stated that since under the applicable regulations it had been the task of the authorities to consider whether the diving could be carried out in a safe manner, they had been actively involved in the matter and had been in a position to prevent a given diving operation from taking place (see paragraph 147 (b) above). At the same time, regard ought to be had to the knowledge possessed at the material time – an assessment of liability ought not to be based on hindsight – and the fact that, as already mentioned, diving was in itself a risky activity, especially deep - sea diving related to the development of oilfields (see paragraph 147 (c) above). 223. The Court will take the above-mentioned considerations as a starting point for its own examination of the case under the Convention. Unlike the national courts, who examined the matter from the angle of national compensation law ( see the summary of the Supreme Court judgment at paragraph 146 ), it sees no need to consider in detail the degree of involvement of the respondent State in the hazardous activity in question, since the Convention obligation applies to “any activity, whether public or not” (see Kolyadenko and Others, cited above, § 158). ( b ) As regards the applicants ’ general grievances 224. Having regard to the careful and thorough review carried out by the national courts at three levels of jurisdiction, notably in their examination of the questions of liability under domestic compensation law, the Court would be cautious about substituting its own assessment of the facts for theirs (see, mutatis mutandis, Klaas v. Germany, 22 September 1993, § § 29 and 30, Series A no. 269); it sees no reason to call into doubt the following assessments made by the Supreme Court and also the High Court (the latter especially on some points not admitted for review by the Supreme Court) : (i) That the regulatory framework in place at the relevant time showed that the authorities had sought to protect divers ’ safety responsibly and to actively improve the protection of their safety (see paragraph 147 (d) above); (ii) That the publicly funded supervision had not been organised in an irresponsible manner (see paragraph 147 ( f ) above); (iii) That the authorities had in the main been aware of the North Sea divers ’ working conditions and demands for improvements but, because of deficient reporting, had probably not had a complete picture of accidents and other undesirable occurrences (see paragraph 147 ( g ) above); (iv) As regards the knowledge possessed at the time of the effects, including long-term ones, of diving, and of the psychological effects of extreme and life- threatening situations (see paragraphs 147 ( h )-( i ) above); (v) That the administrative dispensation practices regarding the applicable saturation time and length of the umbilical, and the relatively strict rules combined with a lenient attitude to the issue of dispensations had been based on a balancing of interests, hence the view that such practices would lead to better control than under more liberal rules (see paragraph 147 (j ) above); (vi) That, as regards the applicants ’ general criticism of the inspections, those carried out by the Labour Inspection Authority had been fewer in number than those by the Petroleum Directorate, which could mainly be explained by the resources at their disposal (see paragraph 147 ( m ) above); (vii) That there was no information to the effect that a lack of professional qualifications on the part of other divers had created situations that had endangered Mr Vilnes and Mr Muledal (see paragraph 147 ( n ) above); (viii) That the rules imposed on the diving companies contained detailed safety requirements regarding diving equipment, that there was little information about episodes concerning the appellants and that no blameworthy passivity on the part of the authorities had been documented (see paragraphs 147 ( o ) above). ( ix ) That the issue of hyperbaric evacuation (re. case of Mr Muledal) had been addressed in the 1978 Regulations, and that no passivity on the part of the Labour Inspection Authority or the Petroleum Directorate had been shown, nor could it be assumed that the problem had had any consequences for the appellants (see paragraph 147 ( p ) above). ( c ) As regards grievances related to test diving 225. The Court also notes that, after a detailed assessment of, inter alia, Mr Muledal ’ s complaints regarding the test diving, the Supreme Court found no basis for holding the Labour Inspection Authority liable on account of negligence in respect of its authorisation and supervision thereof (see paragraphs 149 and 150 above) nor did it find the authorities responsible for any breach of Articles 3 or 8 of the Convention (see paragraph 160 above). The divers had been informed about the test dives beforehand, the test dives had been approved by the competent bodies after a thorough examination according to relevant medical and ethical norms and guidelines and in the light of information available at the relevant time. There was no support for holding that the delayed injuries sustained by Mr Muledal were attributable to these test dives. The Court finds no grounds to arrive at a different conclusion. Nor does it find any grounds to regard differently the complaints made by Mr Lindahl and Mr Sigurdur P. Hafsteinsson in respect of the test dives in which they had participated (see paragraph 109 above). The suggestion that the Deep Ex I dive had been implemented before approval by the ethics committee is not borne out by the documents presented to the Court, from which it appears that the recommendation of approval pre-dated rather than post-dated the beginning of the dive (see paragraph 109 above, item (e) ). 226. The Court is equally not persuaded by their argument that the experiences in the Deep Ex I and II dives had been presented as trouble- free to those who had later participated in the Troll dive ( see paragraph 110 above) or that the authorities were responsible for any misleading information being given about those experiences by the employers to the divers on the latter occasion. 227. In the Court ’ s view, it was in the nature of things that test dives, whether they were experimental diving or verification diving (see paragraph 107 above), involved certain risks which made it difficult to compare that kind of activity with North Sea diving operations generally. ( d ) Other incidents complained of 228. As regards Mr Vilnes ’ complaints about what he described as the authorities ’ four acts or failures to act in relation to certain incidents at Arctic Surveyor in 1977 and at Tender Comet in 1983 (in respect of which he was denied leave to appeal by the Supreme Court) (see paragraph 143 above), the Court observes that his submissions that on the former occasion he had been exposed to serious decompression sickness owing to excessively rapid decompressions were quite specific and reasonably clear, as was his allegation regarding decompression tables used on the latter occasion. The Court will return to these matters below. 229. On the other hand, most or all of Mr Vilnes ’ remaining submissions concerning other incidents at the Arctic Surveyor in 1977 were too vague as to what he considered had caused them and, in particular, to what extent they had been imputable to any of the specific shortcomings for which he criticised the State, to enable the Court to pronounce any view on the matter. This was the case, for instance, in respect of his account of the umbilical being pinned under a cement block; his being pulled by the umbilical as the vessel moved in a drift; the gas cut; and the vessel being damaged in a hurricane while he was undergoing saturation (see paragraphs 24 and 25 above). Nor is it clear to what extent Mr Vilnes had been personally affected by the various other deficiencies at the Tender Comet which he criticised in a general way (see paragraphs 31 to 37 above) and which the High Court noted (see paragraph 140 above) had been upheld. However, when viewed from the angle of the State ’ s positive obligations under Articles 2 and 8 of the Convention, the Court considers that Mr Vilnes ’ grievances under these headings are unfounded. ( e ) Partial conclusion 230. Thus far, the Court sees no reason for disagreeing with the findings of the national High Court and the Supreme Court in respect of Mr Vilnes and Mr Muledal (see paragraphs 129 to 140 and 146 to 160 above), which it finds equally valid for those five applicants who were awaiting the outcome of those proceedings. 231. What is more, when considering the regulatory framework referred to above, it ought to be relevant that it was possible under national law to establish liability to pay compensation, that Mr Vilnes and Mr Muledal had the merits of their compensation claims heard by the City Court, the High Court and the Supreme Court, and that this opportunity was also available to the remaining five applicants. Furthermore, regardless of the national law on compensation, the respondent State and Statoil had set up special compensation schemes under which divers were eligible to apply for substantial amounts of compensation, which all seven applicants did successfully (see paragraphs 17 to 19 above). 232. Having regard to all of the above considerations, the Court finds it established that the authorities of the respondent State went to some lengths in their efforts to secure the protection of the divers ’ safety and health by taking a wide range of measures, and that in so doing they acted in a manner that was consistent with their positive obligations not only under Article 2 but also Article 8 of the Convention. ( f ) As regards the issue of information on decompression tables 233. It remains, however, that the Court is less convinced that, as argued by the Government, the respondent State bore no responsibility for the fact that diving companies continued to use rapid decompression tables for as long as they did. It observes that the High Court found that Mr Vilnes ’ decompression sickness in 1977 had most likely been caused by the facts that the diving company had used too rapid a decompression table and there was no medical doctor who could assist him. This incident had probably been a strong contributory cause of his brain and spinal injuries (see paragraph 139 above). Mr Muledal, Mr Lindahl, Mr Sigurdur P. Hafsteinsson, Mr Nesdal and Mr Jakobsen all submitted specialist medical statements indicating that they had suffered from various forms of bends (see paragraphs 39, 40, 43, 48, 51, 65 And 71 above). Mr Nygård, whose grievances mainly focussed on accidents and near ‑ accidents, as did the relevant medical expert statement, also described experiences of decompression sickness when seeking compensation at the national level (see paragraph 62 above), and the Court accepts his account. All seven applicants furnished evidence of disability, including medical evidence and the grant of disability pensions (see paragraphs 41, 46, 51, 53, 57, 62, 68, 70, 75 above). The Court, having regard to the parties ’ arguments in the light of the material submitted, finds a strong likelihood that the applicants ’ health had significantly deteriorated as a result of decompression sickness, amongst other factors. This state of affairs had presumably been caused by the use of too- rapid decompression tables. In this regard it cannot but note that, as observed by the Supreme Court, standardised tables had not been achieved until 1990, following a project financed by the Petroleum Directorate, and that decompression sickness had since then become an extremely rare occurrence. Thus, with hindsight at least, it seems probable that had the authorities intervened to forestall the use of rapid decompression tables earlier, they would have succeeded in removing more rapidly what appears to have been a major cause of excessive risk to the applicants ’ safety and health in the present case. 234. A preliminary question is whether it would be appropriate to review such an omission under Article 2 of the Convention. From the findings stated in paragraphs 224 to 230 above it follows that the applicants were not personally exposed to life-threatening experiences as a result of any shortcomings on the part of the respondent State. Since the core problem relates to the long-term effects on human health of the use of excessively rapid tables, not to sudden changes in pressure that could have lethal effects, it would seem more appropriate to deal with the matter from the angle of the State ’ s positive obligations under Article 8 of the Convention. 235. In this regard, the Court reiterates that since Guerra and Others, cited above, § § 57-60; developing López Ostra, cited above, § 55; see moreover McGinley and Egan, cited above, § § 98-104; and Roche, cited above, §§ 157-69 ), the Court has affirmed a positive obligation for States, in relation to Article 8, to provide access to essential information enabling individuals to assess risks to their health and lives. In the Court ’ s view, this obligation may in certain circumstances also encompass a duty to provide such information, as can be inferred from the concluding paragraph 60 (concerning Article 8) in Guerra and Others, (cited above) and the affirmation of the “public ’ s right to information” with reference to the latter in the context of Article 2 (see Öneryıldız, cited above, § 90, and Budayeva and Others, cited above, § 132 ). It does not follow from the foregoing that this right ought to be confined, as suggested by the Government, to information concerning risks that have already materialised. In relation to Article 2 the Court has held that “among [the] preventive measures [to be taken] particular emphasis should be placed on the public ’ s right to information” (emphasis added here) (see Kolyadenko and Others, cited above, § 159, quoted at paragraph 220 above), and the position in relation to Article 8 can hardly be different. Nor does it follow that the right in question should not apply to occupational risks, another argument advanced by the Government which is not supported by the decision they cited (see paragraph 204 above). 236. In applying the above principles to the present case, the Court considers that the decompression tables used in diving operations may suitably be viewed as carriers of information which is essential in enabling the divers to assess the health risks involved, in the sense that diving carried out in accordance with the tables would be assumed to be relatively safe, whilst diving which did not respect minimum decompression standards would be deemed unsafe, a perception likely to be reinforced by diving operations being subject to prior administrative authorisation. Thus, the question arises whether, in view of the practices related to the use of rapid decompression tables, the divers received the essential information needed to be able to assess the risk to their health (see Guerra and Others, cited above, §§ 57 to 60, Öneryıldız, cited above, § 90, and Budayeva and Others, cited above, § 132 ) and whether they had given informed consent to the taking of such risks. This question, it is noted in passing, was among a very broad range of other issues raised in substance before the national courts, albeit without featuring at the centre of the national pleadings, unlike in the Convention proceedings. 237. The Court is not persuaded, as suggested by the Government, that by virtue of Article 121 of the 1967 Diving Regulation the authorities had already required the diving companies to provide information about the diving tables to be used, and that the companies had complied. As observed by the Supreme Court (while making reference to pp. 74-76 (section 5.7.4) of the Lossius Report), “the Labour Inspection Authority did not have access to tables for saturation diving and in late 1972 took the initiative to develop their own Norwegian tables” (see paragraph 147 (h) above). Moreover, in section 5.7.4 of the said report it was stated that “the Norwegian authorities gradually gained access to decompression tables for saturation diving [emphasis added]” (see paragraph 83 [14] above). The High Court noted that under certain provisions of the 1978 Regulation (Article 3.4 (1) in conjunction with Article 3(k) of its Appendix), the Petroleum Directorate could demand the production of the diving table used in a given diving operation (see paragraphs 128 and 168 above). The High Court commented in response to this that whether it was safe to use a table should have formed part of the basis for authorising a diving operation, and that it did not seem reassuring that tables had not been reviewed because employees of the Petroleum Directorate had not understood them (see paragraph 128 above). 238. It rather appears therefore that neither the Labour Inspection Authority nor the Petroleum Directorate required the diving companies to produce the diving tables in order to assess their safety before granting them authorisation to carry out individual diving operations. It seems that the diving companies were left with little accountability vis-à-vis the authorities, and were allowed to deal with the tables as their business secrets and thus enjoyed for a considerable period a wide latitude in opting for decompression tables that offered competitive advantages serving their own business interests. According to the Lossius Report ( section 5.7.4), regard for divers ’ health thus ran counter to strong commercial interests, and this issue was well known to the oil companies, the diving companies, divers themselves, diving doctors and the Norwegian authorities (see paragraphs 83 above). The relevant supervisory authorities were aware that the diving companies kept the tables confidential for competitive reasons (see paragraphs 111 to 112 of the Supreme Court judgment quoted at paragraph 147 ( k ) above). 239. In this connection the Court agrees with the view of the High Court, endorsed by the Supreme Court, that the assessment of what could be regarded as a justifiable risk ought to be based on the knowledge and perceptions of this matter at the time in question (see paragraphs 129 to 130 and 147 (c) above). As regards the effects of diving, the Supreme Court reiterated that it had been known that sudden changes in pressure could have a great impact on the body (and, as pointed out by the High Court, those effects could in the worst cases be life-threatening) but there had been less knowledge about the long-term effects. At a consensus conference in Stavanger in 1983, American, British and French specialists in diving medicine had held that diving in accordance with the regulations had been safe. Others, including Norwegian researchers, had not been convinced of this (see paragraph 147 ( f ) above). At the consensus conference held ten years later at Godøysund the position was largely the same, with a leaning towards the possibility that diving under these conditions might have neurological and psychiatric after-effects. In 2002 the Lossius Commission had concluded that there was no clear evidence that could answer the question ( ibid. ). The Supreme Court noted that on the evidence the High Court had found it established that it was widely believed that diving did not have serious long-term effects in the absence of decompression sickness. Where such illness only involved temporary pain, notably after treatment in a compression chamber, the condition had also been regarded as relatively risk- free. It appeared that decompression sickness had been regarded as a part of diving, an inconvenience to be avoided but one which had to be accepted. It had been treated with recompression and this treatment had been regarded as final ( NOU 2003 :5, p. 76) ( ibid. ). The Court sees no reason to call this assessment into doubt. In similar vein, it appreciates that scientific research into the matter not only required considerable investment but was also very complex and time ‑ consuming (see paragraphs 85 to 88 above). 240. At the same time, the Court finds it equally unquestionable that the prevailing view was also that decompression tables contained information that was essential for the assessment of risk to personal health involved in a given diving operation. That this was the raison d ’ etre of such tables was well illustrated, for example, by the letter of 10 July 1969 from the University of Newcastle -upon- Tyne to the Norwegian Labour Inspection Authority (see paragraph 81 above) and by the letter of 21 June 1984 from the Petroleum Directorate to the Diving Medical Advisory Committee (see paragraph 84 above). 241. In the last- mentioned document it was stated that the Petroleum Directorate had recently gone through most of the diving tables available and at that time used in the North Sea, and had found “the difference between the slowest and the fastest table disturbing. The difference in decompression time from 1, 000 feet [was] close to a week when comparing the fastest and the slowest table. In fact, the fastest table ... considered [was] faster than the Duke Emergency Decompression profile from saturation dive. This Duke table [was] in other companies used as the dive profile for aborted dives in serious emergencies. ... The ... Directorate [was] concerned about these differences and problems as they [were] considered to relate directly to the health and safety of divers ” (see paragraph 84 above). 242. However, it does not appear that the authorities took any measures with a view to bringing to the attention of the applicants, or to other divers like them, information enabling them to appreciate whether a table used in a diving operation was comparatively fast or whether it was conservative. As already mentioned above, a considerable period elapsed without the authorities requiring the diving companies to assume full openness about the tables. Nor does it seem that the authorities informed the applicants and other divers of their concerns about the differences between tables and the problems this posed with regard to divers ’ health and safety. 243. The Court has taken note of the Government ’ s argument that a diver would normally be acquainted with the table he would use in carrying out a diving operation for a given company, and might also be in a position to compare tables when working for other companies. However, whilst it cannot be excluded that some comparative information regarding decompression tables could have reached the applicants in this way, this would only have been at random and could hardly be regarded as sufficient for the purpose of enlightening them about the risks and to enable them to give an informed consent to the taking of such risks. 244. Having regard to all of the above-mentioned considerations, in particular the authorities ’ role in authorising diving operations and in protecting the safety of such operations as well as the lack of scientific consensus at the time regarding the long- term effects of decompression sickness and the uncertainty about these matters which existed at the time (see paragraph 147 ( h ) above), in order to minimise the possibility of damage a very cautious approach was called for (see paragraph 85 above). In the Court ’ s view it would therefore have been reasonable for the authorities to take the precaution of ensuring that the companies observe full transparency about the diving tables used and that the applicants, and other divers like them, receive information on the differences between tables, as well as on their concerns for the divers ’ safety and health, which constituted essential information that they needed to be able to assess the risk to their health and to give informed consent to the risks involved. This the authorities could have done when, for example, granting authorisation of diving operations and upon inspections. Had they done so they might conceivably have helped to eliminate sooner the use of rapid tables as a means for companies to promote their own commercial interests, potentially adding to the risks to divers ’ health and safety. By failing to do so the respondent State did not fulfil its obligation to secure the applicants ’ right to respect for their private life, in violation of Article 8 of the Convention. There has accordingly been a violation of this provision. ( g ) Recapitulation 245. In sum, the Court concludes that there has been a violation of Article 8 of the Convention on account of the failure of the respondent State to ensure that the applicants received essential information regarding decompression tables enabling them to assess the risks to their health and safety. Having reached this conclusion, the Court considers that no separate issue arises under Article 2 and sees no need for it to consider whether there has also been a violation of the latter in this respect. II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 246. The first to fourth applicants complained of a violation of Article 3 of the Convention, which in so far as is relevant provides: “ No one shall be subjected ... to inhuman or degrading treatment .... ” 247. The Government contested that argument. A. Admissibility 248. Referring to its reasoning at paragraph 178 above, the Court does not find this complaint inadmissible on the ground of failure to exhaust domestic remedies under Article 35 § 1. It further finds that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention nor inadmissible on any other grounds. Accordingly, the first to fourth applicants ’ complaints under Article 3 must therefore be declared admissible. B. Merits 1. The applicants ’ submissions 249. Mr Vilnes maintained that in violation of Article 3 of the Convention the State had failed to protect him against inhuman and degrading treatment. He had been exposed to life-threatening risks, considerable pain resulting from decompression in accordance with tables “approved” by the State, continuously to noises, gases, internal humidity levels in decompression chambers reaching 90-100%, and pollution from oil and slag. He had not been offered adequate medical treatment after serious spinal decompression sickness and had been exposed to such stress levels that he had been diagnosed as suffering from PTSD (see paragraphs 39 to 41 above). In this connection the applicant referred to the various alternative measures the State could have taken to protect him, mentioned above in relation to his Article 2 complaint. 250. Mr Muledal, Mr Lindahl and Mr Sigurdur P. Hafsteinsson complained that by failing to prevent the test diving in which they had participated from taking place (see paragraphs 109 to 112 above) and/or also by failing to establish an effective supervisory mechanism and/or stop the test diving when the divers had demanded withdrawal, the State had violated their right to protection against inhuman treatment under Article 3 of the Convention. They had not been adequately informed about the experiments and its consequences of the test diving, nor had this been carried out in accordance with their prior consent. 2. The Government ’ s submissions 251. The Government endorsed the Supreme Court ’ s findings (see paragraphs 159 and 160 above) that there had been no violation of Article 3 of the Convention. They did not deny that the applicants had suffered as a result of their diving, and that they had consequently found or were still finding themselves in unfortunate circumstances. They might also feel that they had been treated unfairly and unjustly by the Norwegian authorities in that they had not succeeded domestically with their Convention complaints. However, their situation could not sensibly be viewed as inhuman or degrading treatment as understood in the Court ’ s case-law. Whilst any “suffering or humiliation involved must ... go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment ( see Kudła v. Poland [GC], no. 30210/96, § 92, ECHR 2000 ‑ XI ), the applicants had engaged in diving activities voluntarily and their employment ought to be regarded as “legitimate” for the purposes of the Court ’ s assessment. 252. In the event that Article 3 were to come into play, the Government were of the firm opinion that Norwegian authorities had established “a framework of law” that “provides adequate protection”, and, further, that the authorities did take “reasonable steps to avoid a risk of ill-treatment” ( see Mahmut Kaya v. Turkey, no. 22535/93, § 115, ECHR 2000 ‑ III ) having regard to what the authorities knew and ought to have known. 3. The Court ’ s assessment 253. As far as Mr Vilnes ’ complaint is concerned, the Court refers to its findings above under Article 8 that the respondent State ’ s shortcomings were confined to a failure to provide access to information regarding risks involved in the use of rapid decompression tables (see paragraphs 244 and 245 above). In the light of the nature of this omission and the limited extent to which there was knowledge about the long-term effects of decompression sickness (see paragraph 239 above), the Court does not find that the respondent State can be held liable for inhuman and degrading treatment in respect of Mr Vilnes in breach of Article 3. 254. As regards the complaint under Article 3 of Mr Muledal, Mr Lindahl and Mr Sigurdur P. Hafsteinsson, the Court notes that they relate to the same facts (concerning test diving) as those considered above in the context of Articles 2 and 8 above (see paragraphs 225 to 227 ) and, referring to its reasoning and conclusion above, it finds no violation of Article 3 in their case. 255. Accordingly, there has been no violation of Article 3 of the Convention. III. MISCELLANEOUS ALLEGATIONS BY MR VILNES OF VIOLATIONS 256. Mr Vilnes further alleged a breach of Article 14 of the Convention, arguing that as a diver he had not enjoyed the protection of the safety rules under the Employment Environment Act, unlike workers performing the same type of jobs onshore. This omission had put his life in danger. He also cited the procedural limb of Article 2, complaining that a police investigation, which had been hindered by the Petroleum Directorate, had not been completed. Later in the proceedings he also cited Articles 6, 11 and 13, arguing that the joinder in the national proceedings of his case to that of others, including Mr Muledal, had resulted in his being compelled to associate with them, being denied a fair hearing, and that no effective remedy had been available to him in this regard. 257. In respect of the Article 14 complaint, the Government disputed that Mr Vilnes had been subjected to any differential treatment or that any such could not be regarded as objectively justified (legitimate aim, proportionality ) bearing in mind the respondent State ’ s margin of appreciation. His situation had been too loosely identified for it to be encompassed by the Court ’ s approach to the term “other status” ( see Clift v. the United Kingdom, no. 7205/07, § § 56-59, 13 July 2010 ). The Government offered no comment on the complaints under Articles 6, 11 and 13. 258. The Court, agreeing with the findings of the Supreme Court (see paragraph 161 above), observes that Mr Vilnes ’ Article 14 complaint is not sufficiently substantiated to warrant an examination on the merits and should therefore be rejected as being manifestly ill-founded. 259. As regards Mr Vilnes ’ procedural complaint under Article 2, it does not appear that he raised this either expressly or in substance before the Supreme Court, for which reason he failed to exhaust domestic remedies. His complaints under Articles 6 and 13 were raised in substance only in his comments of 29 January 2012 to the Government ’ s observations, more than six months after the impugned joinder and the final national decision in his case. 260. It therefore follows that these complaints are inadmissible under Article 35 §§ 1 and 4 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 261. 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 (a) The applicants ’ claims 262. The applicants claimed the following sums in respect of pecuniary damage: 1) Mr Vilnes: 30, 278, 358 Norwegian kroner (NOK) (approximately 3,984,000 euros (EUR) ); 2) Mr Muledal: NOK 9,048,599 (approximately EUR 1,191,000); 3) Mr Lindahl: NOK 7, 848,430 (approximately EUR 1,033,000); 4) Mr Sigurdur P. Hafsteinsson: NOK 9,018,538 (approximately 1,187,000 EUR ); 5) Mr Nygård : NOK 8,792,178 (approximately EUR 1,157,000); 6) Mr Nesdal : NOK 7,409,777 (approximately EUR 975,000); 7) Mr Jakobsen : NOK 10,241,492 (approximately EUR 1,348,000). 263. Mr Vilnes ’ s claim represented his loss of earnings per year, with interest, for twenty-eight years, up to the retirement age of 67 ( using his income of NOK 265,500 for 1978 as a starting point and increasing the annual figure in accordance with nominal wage growth ). This was a hypothetical income based on his probable natural career without the injuries. He agreed that deduction should be made of the NOK 3,613,657 (approximately EUR 476,000) he had received under the various special compensation schemes (see paragraph 41 above). 264. Mr Muledal, Mr Lindahl, Mr Sigurdur P. Hafsteinsson, Mr Nygård, Mr Nesdal and Mr Jakobsen explained that the above-mentioned amounts had been calculated on the basis of deduction being made of the amounts that they had received in compensation under the said compensation schemes, except that the NOK 200,000 received in ex-gratia compensation ought not be taken into account (see paragraph 47, 52, 58, 63, 69, and 76 above). As a result of diving in the North Sea they had sustained injuries and health damages. Some had been able to do other work for some years until their health problems had manifested themselves in an occupational disability, while others had never worked again. However, all of them had suffered major loss of income compared to what they would have earned had they stayed healthy and continued diving in the North-Sea until the age of 55. Thereafter they would have continued in other petroleum - related occupations, such as for example as diving supervisor or superintendent, a common career path, until the regular retirement age of 67. Any benefits provided by the State, such as sickness and disability benefits, had been deducted from their claims. In addition they claimed interests. (b) The Government ’ s submissions 265. The Government pointed out that the general tenor of the applicants ’ view was that they had sustained injuries and damage to their health as a result of diving in the North Sea. That was not the same, however, as demonstrating to the Court ’ s satisfaction that their health issues were the result of a violation of the Convention. 266. The Government maintained that the applicants had not furnished the Court with requisite evidence that there was indeed a causal link between the financial loss for which compensation was now being sought and the alleged breaches by the Norwegian authorities. Their health problems might be the result of their diving activities carried out on the Norwegian Shelf not involving rapid tables, or of activities as divers outside the jurisdiction of the Norwegian authorities, or they could be the result of the applicants ’ taking risks which Norwegian authorities could not sensibly have been able to forestall. 267. On this basis the Government asked the Court to reject the applicants ’ pecuniary damage claims. 268. In any event, the sums received by the applicants in ex gratia compensation from the Norwegian authorities and from Statoil ought to be deducted if the Court made an award under Article 41, and the sums claimed were excessive. (c) The Court ’ s assessment 269. 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, and Muñoz Díaz v. Spain, no. 49151/07, § 85, ECHR 2009 ). 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 Muñoz Díaz, cited above ). 270. However, bearing in mind its findings above, regarding notably the prevailing perceptions and lack of precise knowledge at the material time about the possible long- term effects of decompression sickness, the Court is not able to speculate on what the applicants ’ position would have been had the violation found of Article 8 of the Convention not occurred. The evidence before it does not show a sufficient causal link between the respondent State ’ s failings as described in paragraph 244 above and the applicants ’ losses in past and future earnings. In any event, even assuming that parts of the losses claimed are attributable to decompression sickness, the state of the evidence is not such as would enable the Court to make an equitable award under the Convention that exceeds the amounts that they have already received under the various national compensation schemes and which would have to be deducted from any such award. It therefore rejects the applicants ’ claims under this heading. 2. Non-pecuniary damage (a) The applicants ’ claims 271. In respect of non-pecuniary damage Mr Vilnes claimed NOK 5,000,000 (approximately EUR 658,000) and the other six applicants each claimed NOK 64,000 (approximately EUR 8,400), the latter referring to Roche (cited above, § 179 ) where the Court had awarded EUR 8,000 in comparable circumstances. The applicants maintained that they had suffered feelings of frustration, uncertainty and anxiety. (b) The Government ’ s submissions 272. The Government asked the Court to reject the applicants ’ claim for compensation for non-pecuniary damage. The latter had not furnished the Court with any documentary evidence that they had suffered feelings of frustration, uncertainty and anxiety as a result of any breach of the Convention by the Norwegian authorities. The amount claimed by Mr Vilnes, in particular, was clearly excessive. In any event, having regard to the amounts already granted to the applicants by way of compensation under the special compensation schemes, a finding of violation by the Court would constitute adequate just satisfaction for the purposes of Article 41. (c) The Court ’ s assessment 273. The Court considers that the applicants must all have experienced psychological problems on account of anguish and distress as a result of the violation found of the Convention and that this finding will not suffice as “just satisfaction” for the purposes of Article 41. The Court notes that an amount of NOK 200,000 (approximately EUR 26,000 ) had already been granted to each of the applicants in ex gratia compensation for non ‑ pecuniary damage by Parliament or the Special Compensation Board (see paragraphs 42, 47, 52, 58, 63, 69, and 76 above). Deciding on an equitable basis, it awards each applicant EUR 8,000 under this heading, plus any tax that may be chargeable on that amount. B. Costs and expenses 274. Mr Vilnes claimed reimbursement of legal costs and expenses totalling NOK 664,128 (approximately EUR 87,000 ), in respect of the following items: (a) NOK 526,190 for his lawyers ’ work in the proceedings before the Court (mostly at the rate of NOK 1,300 per hour); ( b ) NOK 131,547 for value- added tax (“VAT”) in respect of the above; (c) NOK 6,391 for expenses incurred for travel and accommodation in connection with the oral hearing before the Court; 275. The remaining six applicants sought reimbursement of legal costs and expenses totalling NOK 1,280,868 (approximately EUR 169,000 ) in respect of the following items (all inclusive of VAT) : (d) NOK 815,816 for the lawyers ’ work (538 hours) before the Court until 4 October 2010; (e) NOK 120,000 for their remaining work thereafter, of sixty-five hours before the Court; (f) NOK 345,052 incurred by the Offshore Divers ’ Union before the national courts. 276. The Government argued that the applicants ’ claims for reimbursement for legal costs were considerable and excessive, not least having regard to the fact that the very same claims of Convention breaches had been made before domestic courts, including the Supreme Court, and also to the fact that the individual plaintiffs in the domestic proceedings had been granted free legal aid. The amounts now sought before the Court were neither reasonable nor necessarily incurred. 277. The Court reiterates that, according to its case-law, an applicant is entitled to 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. 278. In the present case, regard being had to the documents in its possession and the above criteria, the Court first notes that only part of the costs was necessarily incurred in order to obtain redress for the matter found to constitute a violation of the Convention. 279. Accordingly, as regards Mr Vilnes ’ claim, the Court considers that items (a) and (b) should only be reimbursed in part, whilst item (c) should be refunded in its entirety. Making an assessment on an equitable basis, the Court awards him EUR 40,000, plus any tax that may be chargeable on that amount. 280. Likewise, as regards the other six applicants, items (d) and (e) should be reimbursed only in part. The Court rejects item (f) since it does not concern a party to these proceedings nor costs that appear to have been actually and necessarily incurred by the applicants in order to obtain redress for the violation before the domestic courts. Making an assessment on an equitable basis, the Court awards the other six applicants jointly EUR 50,000 in respect of items (d) and (e), plus any tax that may be chargeable on that amount C. Default interest 281. 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, on account of the failure of the Norwegian authorities to ensure that the applicants received essential information enabling them to assess the risks to their health and lives resulting from the use of rapid decompression tables. In the light of the authorities’ role in authorising diving operations and protecting divers’ safety, and of the uncertainty and lack of scientific consensus at the time regarding the long-term effects of decompression sickness, the Court found in particular that a very cautious approach had been called for. It would have been reasonable for the authorities to take the precaution of ensuring that companies observed full transparency about the diving tables and that divers received the information on the differences between the tables and on the concerns for their safety and health they required to enable them to assess the risks and give informed consent. The fact that these steps were not taken meant that Norway had not fulfilled its obligation to secure the applicants’ right to respect for their private life. The Court further held that there had been no violation of Article 2 (right to life) or Article 8 of the Convention as regards the remainder of the applicants’ complaints about the authorities’ failure to prevent their health and lives from being put in jeopardy, and that there had been no violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention. |
570 | Cases in which the Court found a violation of Article 4 of Protocol No. 4 to the Convention | THE LAW JOINDER OF THE APPLICATIONS 118. In accordance with Rule 42 § 1 of the Rules of Court, the Court decides to join the applications, given that they concern similar facts and raise identical legal issues under the Convention. ADMISSIBILITYThe issue of jurisdiction under Article 1 of the Convention The issue of jurisdiction under Article 1 of the Convention The issue of jurisdiction under Article 1 of the Convention 119. 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.” The parties’ submissions (a) The Government 120. In their submissions to the Court, the Government pointed out that the present cases were of a specific character as they involved decisions to refuse entry into Poland issued by the border authorities at the border checkpoints on the Polish-Belarusian border. The Government indicated that the applicants had been on Polish territory only briefly and had not been legally admitted to this territory. As a result, the jurisdiction of the Polish authorities over them had been limited to the issuance of the decisions refusing them entry. 121. The Government submitted that in this respect the present cases were different from a number of previous cases examined by the Court ( Khlaifia and Others v. Italy [GC], no. 16483/12, 15 December 2016; Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, ECHR 2012; Louled Massoud v. Malta, no. 24340/08, 27 July 2010; Suso Musa v. Malta, no. 42337/12, 23 July 2013; and Gebremedhin [Gaberamadhien] v. France, no. 25389/05, ECHR 2007 ‑ II) in which the applicants were under the territorial jurisdiction of the Contracting States for an extended amount of time and – particularly in cases concerning irregular migration by sea – were at imminent risk of losing their life or health if returned to the sea or the maritime border. (b) The applicants 122. The applicants submitted that under Article 1, the Convention applied to all persons under a Contracting Party’s jurisdiction, which was not limited to its territory. They argued that the Convention applied in all situations in which the effective control by the authorities of the Contracting Party was exercised. 123. The applicants pointed out that the Terespol border checkpoint, where they had been subjected to border checks, was situated 2,600 metres into Polish territory and that the officers of the Border Guard, who conducted the border control of foreigners, exercised full authority over foreigners seeking entry into Poland. 124. Moreover, the applicants submitted that under both international law (including the Geneva Convention) and under European Union law (including Directive 2013/32/EU and Regulation (EU) 2016/399 (“the Schengen Borders Code”)) it was clear that the principle of non-refoulement protected persons who were subjected to border checks even before they were allowed entry into a State by its border authorities. (c) Third-party interveners 125. The third-party interveners submitted that where the State exercised effective authority or control over persons, it also exercised jurisdiction – thus triggering the protective obligations of the State under the Convention. The Court’s assessment (a) General principles governing jurisdiction within the meaning of Article 1 of the Convention 126. Under Article 1 of the Convention, the Contracting States undertake to “secure” to everyone within their “jurisdiction” the rights and freedoms defined in Section I of the Convention (see Banković and Others v. Belgium and Others (dec.) [GC], no. 52207/99, § 66, ECHR 2001 ‑ XII). 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 that 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). 127. The jurisdiction of a State, within the meaning of Article 1, is essentially territorial (see Banković and Others, §§ 61 and 67, and Ilaşcu and Others, § 312, both cited above). It is presumed to be exercised normally throughout the State’s territory (see Assanidze v. Georgia [GC], no. 71503/01, § 139, ECHR 2004-II, and N.D. and N.T. v. Spain [GC], nos. 8675/15 and 8697/15, § 103, 13 February 2020). 128. In keeping with the essentially territorial notion of jurisdiction, the Court has accepted only in exceptional cases that acts of the Contracting States performed, or producing effects, outside their territories can constitute an exercise of jurisdiction by them within the meaning of Article 1 of the Convention (see Drozd and Janousek v. France and Spain, 26 June 1992, § 91, Series A no. 240; Bankoviç and Others, cited above, § 67; and Ilaşcu and Others, cited above, § 314). It has established, in particular, that whenever a State, through its agents operating outside its territory, exercises control and authority over an individual, and thus jurisdiction, it is under an obligation to secure to that individual the rights and freedoms under Section I of the Convention that are relevant to his or her situation (see Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, §§ 133-37, ECHR 2011; Hirsi Jamaa and Others, cited above, § 74; Hassan v. the United Kingdom [GC], no. 29750/09, § 74, ECHR 2014; and M.N. and Others v. Belgium ( dec .) [GC], no. 3599/18, §§ 102-09 and 120, 5 March 2020). (b) Application of the above principles to the present case 129. It is not disputed before the Court that the events in issue occurred at the railway border checkpoint at Terespol and – on one occasion – the road border checkpoint at Czeremcha-Połowce. Both checkpoints are located at the border with the neighbouring State and are operated by the relevant units of the Polish Border Guard. In consequence, the presumption of the jurisdiction of the Polish State applies to all actions taken with respect to the applicants presenting themselves at those checkpoints. 130. Moreover, the events in question concern the procedure followed in respect of border checks, granting or refusing the applicants entry into Poland, and accepting for review their applications for international protection. All those procedures were conducted exclusively by the officials of the Polish State and were regulated by domestic and EU law. It is therefore evident that the actions complained of by the applicants were attributable to Poland and thereby fell within its jurisdiction within the meaning of Article 1 of the Convention (see M.A. and Others v. Lithuania, no. 59793/17, § 70, 11 December 2018). 131. In addition, Poland cannot circumvent its “jurisdiction” under the Convention by pointing out that the decisions concerning the refusal of entry into Poland were taken within a few hours of the applicants’ arrival on Polish territory and, in consequence, that the control process in respect of the applicants was of relatively short duration (see paragraph 120 above). 132. Accordingly, the Court concludes that the events giving rise to the alleged violations fall within Poland’s “jurisdiction”, within the meaning of Article 1 of the Convention. Exhaustion of domestic remedies 133. The Government submitted that the applications were inadmissible due to the non-exhaustion of domestic remedies. The parties’ submissions (a) The Government 134. The Government submitted that the applicants had failed to appeal against most of the decisions refusing them entry into Poland. They indicated that the option of appealing against those decisions to the head of the National Border Guard had been available to the applicants and would have resulted in the re-examination of the applicants’ cases. Moreover, in the event that the head of the National Border Guard upheld the decisions, the applicants could have lodged an appeal with the administrative court. 135. The Government indicated that in respect of a small number of instances in which the applicants had appealed against the refusal to grant them entry, the relevant proceedings were still pending before either the head of the National Border Guard (see paragraphs 43 and 62 above) or before the Warsaw Regional Administrative Court (see paragraphs 14, 18 and 57 above). Therefore, in the Government’s opinion, all three applications were premature. 136. The Government also referred to examples of judgments of the Warsaw Regional Administrative Court in which decisions concerning refusal of entry to Poland had been quashed. They submitted that the existence of such judgments proved that an appeal to the administrative court could have constituted an effective remedy in cases similar to the situation of the applicants. 137. Referring to the Guidelines on Human Rights Protection in the Context of Accelerated Asylum Procedures adopted by the Committee of Ministers (see paragraph 97 above), the Government argued that in the present cases the applicants had not presented any arguable claim that they would have faced a risk of persecution or inhuman and degrading treatment in Belarus or Russia and that the lack of suspensive effect of an appeal against the decision on the refusal of entry therefore did not render this remedy ineffective for the purposes of Article 35 § 1 of the Convention. (b) The applicants 138. The applicants submitted that the right to lodge an appeal against the decision refusing them entry did not constitute an effective remedy and that no other effective remedy was available to them. They indicated that an appeal to the head of the National Border Guard would not provide them with an independent and timely review of their cases that would protect them from being exposed to treatment that was in breach of Article 3 of the Convention. 139. In the first place, the applicants stressed that decisions concerning the refusal to grant them entry were immediately enforceable and that an appeal against them would not have suspensive effect. Moreover, such an examination would take considerable time. The applicants submitted that in all cases in which they had appealed, the head of the National Border Guard had upheld the decisions issued at first instance, and the proceedings were pending before the administrative courts. Such proceedings could take a few years to reach a conclusion. Given that they had been returned to Belarus, during this period the applicants would be deprived of protection from treatment that was in breach of Article 3 of the Convention. Moreover, as they had exceeded their ninety-day visa-free period of residence in Belarus, they were under constant threat of being deported to Russia, where they risked being subjected to torture and inhuman and degrading treatment. 140. In addition, they submitted that the National Border Guard was a hierarchical formation, subordinate to and supervised by the Minister of the Interior and Administration and as such implemented a wider governmental policy of not accepting for review applications for international protection submitted by refugees presenting themselves at the Polish border. Therefore, in the applicants’ opinion, any review executed by the head of the National Border Guard would not be independent. 141. The applicants also alleged that when they had been at the border checkpoints at Terespol and Czeremcha-Połowce they had not been duly informed of their right to appeal against the decisions of the officers of the Border Guard. They also submitted that the fact that they had been returned to Belarus had hindered the possibility of their lodging an appeal. They added that it was only thanks to the assistance of Polish lawyers that they had been able to lodge appeals against some of the decisions issued in their cases. The Court’s assessment (a) General principles 142. The Court has indicated numerous times that the rule of exhaustion of domestic remedies is based on the assumption – reflected in Article 13 of the Convention, with which it has close affinity – that there is an effective remedy available in respect of the alleged violation (see A.E.A. v. Greece, no. 39034/12, § 47, 15 March 2018). 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. The scope of the Contracting States’ obligations under Article 13 varies, depending on the nature of the applicant’s complaint. However, the remedy required by Article 13 must be “effective” in practice as well as in law. The “effectiveness” of a “remedy” within the meaning of the Convention does not depend on the certainty of a favourable outcome for the applicant. Nor does the “authority” referred to in that provision necessarily have to be a judicial authority; however, if it is not, its powers and the guarantees that it affords are relevant in determining whether the remedy before it is effective (see, among many other authorities, Kudła v. Poland [GC], no. 30210/96, § 157, ECHR 2000 ‑ XI, and Gebremedhin [Gaberamadhien], cited above, § 53). 143. In view of the importance that the Court attaches to Article 3 of the Convention and the irreversible nature of the damage that may result if a risk of torture or ill-treatment materialises, it has already held that the effectiveness of a remedy available to an applicant who alleges that his or her removal to a third State would expose him or her to treatment prohibited under Article 3 of the Convention 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 breaching Article 3 (see Jabari v. Turkey, no. 40035/98, § 50, ECHR 2000 ‑ VIII), and a particularly prompt response (see Batı and Others v. Turkey, nos. 33097/96 and 57834/00, § 136, ECHR 2004 ‑ IV (extracts)); it also requires that the person concerned should have access to a remedy with automatic suspensive effect (see Čonka v. Belgium, no. 51564/99, §§ 81-83, ECHR 2002 ‑ I; Gebremedhin [Gaberamadhien], cited above, § 66; M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 293, ECHR 2011; and A.E.A. v. Greece, cited above, § 69). 144. The Court has reached a similar conclusion in relation to complaints made under Article 4 of Protocol No. 4 to the Convention, stating that a remedy against an alleged violation of this provision does not meet the requirements of effectiveness if it does not have suspensive effect. The notion of an effective remedy under the Convention requires that the remedy be capable of preventing the execution of measures that are contrary to the Convention and whose effects are potentially irreversible (see Čonka, § 79, and Hirsi Jamaa and Others, § 199, both cited above). (b) Application of the above principles to the present case 145. The Court observes that all the complaints raised by the applicants in the present cases (whether made under Article 3 of the Convention, Article 4 of Protocol No. 4 to the Convention, Article 13 of the Convention in conjunction with Article 3 of the Convention and Article 4 of Protocol No. 4 or under Article 34 of the Convention) relate to the same circumstances, namely the fact that the applicants were returned from the Polish border and sent back to Belarus without an asylum procedure being instigated. Therefore, the effectiveness of the remedy available to them has to be examined with regard to the execution of this measure, jointly for all of the complaints. 146. The Court notes that the applicants had the possibility of lodging an appeal against each of the decisions concerning refusal of entry within fourteen days of being informed of those decisions. However, there is no dispute that under Polish law such appeals would not have had suspensive effect on the return process (see paragraph 74 above). It follows that the applicants did not have access to a procedure by which their personal circumstances could be independently and rigorously assessed by any domestic authority before they were returned to Belarus (see M.A. and Others v. Lithuania, cited above, § 84). 147. In the instant case the applicants’ complaints concerned allegations that their return to Belarus would expose them to a real risk of suffering treatment contrary to Article 3 of the Convention. Therefore, the Court considers that the sole fact that an appeal against the decision on refusal of entry would not have had suspensive effect (and, in consequence, could not have prevented the applicants from being turned away to Belarus) is sufficient to establish that such an appeal – and any further appeals to the administrative court that could have been brought subsequently to it – did not constitute an effective remedy within the meaning of the Convention (see paragraph 143 above). Consequently, the Court does not deem it necessary to consider the remainder of the applicants’ arguments concerning the lack of adequate information and legal assistance in the appeal procedure, the lack of independence of the head of the National Border Guard, the potential length of the proceedings before the administrative courts, or the obstacles resulting from the need to lodge such an appeal from abroad. 148. Accordingly, the Court dismisses the Government’s objection concerning the non-exhaustion of domestic remedies. Conclusion on admissibility 149. The Court further notes that the applications are not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. They are not inadmissible on any other grounds and must therefore be declared admissible. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION 150. The applicants complained that they had been exposed to the risk of torture or inhuman or degrading treatment in Chechnya as a result of having been returned to Belarus, from where they would probably be sent back to Russia, and that their treatment by the Polish authorities had amounted to degrading treatment. They relied on Article 3 of the Convention, which provides: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 151. The Court observes that the applicants’ arguments focus on two different aspects of the alleged violation of Article 3 of the Convention: firstly, the risk that they would suffer inhuman and degrading treatment when sent back to Belarus and, subsequently, to Russia, and the fact that despite that risk the Polish authorities sent them back to Belarus without having properly reviewed their claims; and, secondly, the treatment of the applicants by the Polish authorities during the so-called “second line” border-control procedure. With respect to the latter aspect of this complaint, the applicants argued that the whole situation – that is to say, the fact that the statements they made at the border were bluntly disregarded and the fact that they were denied the procedure to which they were entitled under the law and instead returned to Belarus – constituted degrading treatment. Alleged violation of Article 3 of the Convention on account of the applicants being denied access to the asylum procedure and exposed to a risk of inhuman and degrading treatment and torture in ChechnyaThe parties’ submissions The parties’ submissions The parties’ submissions (a) The applicants 152. The applicants did not contest the Government’s submission that the Polish authorities were bound by both the domestic legislation and EU law regulating border checks (see paragraph 158 below). They noted, however, that all the legislation cited by the Government provided the protection of fundamental rights – particularly in respect of the non-refoulement principle. They submitted that the actions taken at the border checkpoints at Terespol and Czeremcha-Połowce had violated those provisions. 153. The applicants reiterated that each time that they had been interviewed at the second line of border control, they had expressed their wish to apply for international protection and had presented their respective accounts of undergoing persecution in Chechnya. In their opinion, the officers of the Border Guard had been bound to treat them as persons in search of international protection whose claims under Article 3 of the Convention should have been heard by the relevant domestic authority. Instead, the border guards had disregarded their statements and – in some cases – written applications for international protection. The applicants submitted that such a practice had been routine at the Polish-Belarusian border crossing at Terespol. 154. The applicants also argued that the official notes drafted by the officers of the Border Guard did not accurately reflect the content of the statements given by them and should not be regarded as constituting valid evidence of those statements. They noted that the official notes had been drafted in Polish (a language that the applicants did not understand) and had not been signed by them. They cited the decision of the Warsaw Regional Administrative Court of 2 June 2017 (case no. IV SA/Wa 3021/16), in which the domestic court had held that owing to its significance for the decision to refuse entry, each interview conducted at the border should have been recorded in the form of minutes signed by both the officer of the Border Guard and the foreigner interviewed. 155. The applicants alleged that their return to Belarus had put them at risk of being deported to Chechnya owing to the fact that Belarus was not a safe country for refugees from Russia. They cited official statistics according to which all applications for international protection made by Russian citizens in Belarus since 2004 had been refused. They also cited a few instances in which Russian citizens who had applied for international protection in Belarus (or had unsuccessfully tried to apply for it at Polish ‑ Belarusian border crossings and had returned to Belarus) had been deported to Russia or handed over directly to the Russian authorities. They stressed that in many of those cases the procedural rights of the persons deported or handed over to the Russian authorities had been disregarded. 156. The applicants submitted that they all had a history of being persecuted in Chechnya and had presented the border authorities with written statements concerning those facts, as well as – in respect of the applicant in case no. 40503/17 and the first and second applicants in case no. 43643/17 – psychologists’ opinions indicating that they were suffering the psychological consequences of being torture victims. The applicants relied on a number of reports describing the general situation in Chechnya as comprising extrajudicial executions, forced disappearances, the widespread use of torture, mistreatment and illegal detention. They indicated that instances of serious human rights abuses were not properly investigated by the Russian authorities. In the applicants’ opinion, those reports supported their claims related to their fear of being persecuted if returned to the Chechen Republic. 157. In addition, the applicants, relying on I.K. v. Austria (no. 2964/12, 28 March 2013), stated that according to the Court’s case ‑ law, the sole fact that Russia was a Party to the Convention did not automatically mean that the expulsion of asylum-seekers to Russia could not be considered to constitute a violation of Article 3 of the Convention. (b) The Government 158. The Government noted that the Polish-Belarusian border was at the same time the external border of the European Union. In consequence, the authorities that conducted border checks were bound by both domestic legislation and European Union law ( inter alia, the Schengen Borders Code). The Government also emphasised the main responsibilities of the Border Guard – namely, border protection and border traffic control, as well as the prevention of illegal migration and the entry into State territory of foreigners not fulfilling the conditions required. 159. The Government explained that all foreigners who presented themselves at the Polish-Belarusian border were subjected to the same procedure, which was regulated by Polish legislation and EU law. At the first line of border control their documents (travel documents and visas) were checked. If they did not fulfil the conditions for entry, they were directed to the second line of border control, at which detailed interviews were carried out by officers of the Border Guard. This interview, during which only an officer of the Border Guard and the foreigner in question were present, was a crucial element of this part of the border checks, and the statements given by a foreigner on that occasion would have been the only element allowing him or her to be identified as someone seeking international protection. In the event that it was evident from the statements made by the foreigner that he or she was seeking such protection, the application in this regard was accepted and forwarded to the relevant authority for review within forty-eight hours and the foreigner was directed to the Biała Podlaska Centre for Aliens. However, in the event that the foreigners in question expressed other reasons for their attempt to enter Poland (economic or personal, for example) a decision refusing entry was issued and immediately executed. 160. The Government emphasised that the above-mentioned procedure had its basis in the Schengen Borders Code and that the fact that the officers of the Border Guard complied with it resulted from Poland’s membership of the European Union. They stated that, when applying this procedure, the domestic authorities remained bound by the obligations they had entered into upon acceding to the Convention in the light of the presumption of the equivalence of the protection of EU law and the Convention, as established in the case-law of the Court. They invoked in particular the judgments in the cases of Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland ([GC], no. 45036/98, ECHR 2005 ‑ VI) and Avotiņš v. Latvia ([GC], no. 17502/07, 23 May 2016). 161. Referring to the circumstances of the present cases, the Government stated that on all occasions on which the applicants had arrived at the border checkpoints at Terespol and (in respect of the applicants in case no. 43643/17) at Czeremcha-Połowce they had been subjected to the second line of border control and interviewed by officers of the Border Guard. The Government submitted that at no point had any of the applicants given reasons that would have justified the granting of international protection. As a result, no applications had been forwarded to the head of the Aliens Office. 162. The Government stressed that all the applicants had arrived in Belarus some time before lodging their applications with the Court (almost a year with respect to the applicant in case no. 40503/17; four months with respect to the applicants in case no. 42902/17; and five months with respect to the applicants in case no. 43643/17). The applicants had not, in their oral statements given to the border guards, referred to any treatment that had been in breach of Article 3 of the Convention or any risk of their receiving such treatment while staying in Belarus. The Government submitted that the mere fact that the applicants were staying in Belarus illegally (as their visas had expired) did not automatically mean that they would run the risk of ill ‑ treatment, even if forced by the Belarusian authorities to return to Russia. In this connection the Government noted that Russia was a Contracting Party to the Convention and had undertaken to secure the fundamental rights guaranteed by the Convention. 163. With regard to the applicant in case no. 40503/17, the Government also noted that the statements given by him on two occasions to the officers of the Border Guard contradicted the content of the documents that he had been carrying with him (see paragraph 22 above). In the Government’s opinion, this undermined the credibility of that applicant and the accounts of his situation. 164. Accordingly, the Government submitted that in the present cases there was no evidence that the applicants were at risk of being subjected to treatment violating Article 3 of the Convention. (c) Third-party interveners 165. The third-party interveners submitted that it was prohibited for a Contracting Party to the Convention to refuse entry or to return a person to face a serious violation of human rights – including a violation of the prohibition on torture and inhuman or degrading treatment. They emphasised the special vulnerability of children in respect of asylum procedures and noted that children were particularly affected by being disoriented owing to the loss of familiar surroundings and relationships. The Court’s assessment (a) General principles 166. As the Court has stated on many occasions, the prohibition of inhuman or degrading treatment, enshrined in Article 3 of the Convention, is one of the most fundamental values of democratic societies. It is also a value of civilisation closely bound up with respect for human dignity, part of the very essence of the Convention (see Khlaifia and Others, cited above, § 158, and Ilias and Ahmed v. Hungary [GC], no. 47287/15, § 124, 21 November 2019). Even in the most difficult circumstances, such as the fight against terrorism and organised crime, the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment. Unlike most of the substantive clauses of the Convention and of Protocol No. 1 and Protocol No. 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 Assenov and Others v. Bulgaria, 28 October 1998, § 93, Reports of Judgments and Decisions 1998 ‑ VIII). The Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the victim’s conduct (see Chahal v. the United Kingdom, 15 November 1996, § 79, Reports 1996 ‑ V, and Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000 ‑ IV). 167. The Court has on many occasions acknowledged the importance of the principle of non-refoulement (see, for example, M.S.S. v. Belgium and Greece, cited above, § 286, and M.A. v. Cyprus, no. 41872/10, § 133, ECHR 2013 (extracts)). The Court’s main concern in cases concerning the expulsion of asylum ‑ seekers 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, among other authorities, M.S.S. v. Belgium and Greece, cited above, § 286; Müslim v. Turkey, no. 53566/99, §§ 72-76, 26 April 2005; and T.I. v. the United Kingdom (dec.), no. 43844/98, ECHR 2000 ‑ III). 168. The Court reiterates 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 (see, among other authorities, Hirsi Jamaa and Others, cited above, § 113, and Üner v. the Netherlands [GC], no. 46410/99, § 54, ECHR 2006 ‑ XII). 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 breaching Article 3 in the destination country. In these circumstances, Article 3 implies an obligation not to return the person in question to that country (see Saadi v. Italy [GC], no. 37201/06, §§ 124-25, ECHR 2008; F.G. v. Sweden [GC], no. 43611/11, §§ 110-11, 23 March 2016; and Ilias and Ahmed, cited above, § 126). Since protection against the treatment prohibited by Article 3 is absolute, there can be no derogation from that rule (see Saadi, cited above, § 138). 169. In cases concerning the return of asylum-seekers, the Court has observed that it does not itself examine actual asylum applications. 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, for example, M.S.S. v. Belgium and Greece, cited above, § 286). The Court’s assessment of the existence of a real risk must necessarily be a rigorous one (see, for example, F.G. v. Sweden, cited above, § 113) and inevitably involves an examination by the competent national authorities and later by the Court of the conditions in the receiving country against the standards of Article 3 (see Ilias and Ahmed, cited above, § 127). 170. It is in principle for the person seeking international protection in a Contracting State to submit, as soon as possible, his or her claim for asylum, together with reasons in support of it, and to adduce evidence capable of proving that there are substantial grounds for believing that deportation to his or her home country would entail a real and concrete risk of treatment in breach of Article 3 (see F.G. v. Sweden, cited above, § 125). However, the Court acknowledges that, owing to the special situation in which asylum-seekers often find themselves, it is frequently necessary to give them the benefit of the doubt when it comes to assessing the credibility of their statements and the documents submitted in support thereof (ibid., § 113). That assessment must focus on the foreseeable consequences of the applicant’s return to the country of destination, in the light of the general situation there and of his or her personal circumstances (see Vilvarajah and Others v. the United Kingdom, 30 October 1991, § 108, Series A no. 215). 171. Moreover, the Court has noted that the exact content of the expelling State’s duties under the Convention may differ depending on whether it removes applicants to their country of origin or to a third country (see Ilias and Ahmed, cited above, § 128). In cases where the authorities choose to remove asylum-seekers to a third country, the Court has stated that this leaves the responsibility of the Contracting State intact with regard to its duty not to deport them if substantial grounds have been shown for believing that such action would expose them, directly (that is to say in that third country) or indirectly (for example, in the country of origin or another country), to treatment contrary to, in particular, Article 3 (see M.S.S. v. Belgium and Greece, cited above, §§ 342-43 and 362-68). 172. Consequently, the Court has indicated that where a Contracting State seeks to remove an asylum-seeker to a third country without examining the asylum request on the merits, the main issue before the expelling authorities is whether or not the individual will have access to an adequate asylum procedure in the receiving third country. This is because the removing country acts on the basis that it would be for the receiving third country to examine the asylum request on the merits, if such a request is made to the relevant authorities of that country (see Ilias and Ahmed, cited above, § 131). 173. The Court has further clarified that in all cases of removal of an asylum-seeker from a Contracting State to a third intermediary country without examination of the asylum request on the merits, regardless of whether or not the receiving third country is an EU member State or a State Party to the Convention, it is the duty of the removing State to examine thoroughly the question of whether or not there is a real risk of the asylum-seeker being denied access, in the receiving third country, to an adequate asylum procedure, protecting him or her against refoulement. If it is established that the existing guarantees in this regard are insufficient, Article 3 implies a duty that the asylum-seeker should not be removed to the third country concerned (ibid., § 134). (b) Application of the above principles to the present case 174. The Court notes first of all that the Government disputed whether the applicants, when presenting themselves on numerous occasions at the Polish border, expressed a wish to lodge applications for international protection or communicated any fear for their own safety. The Government submitted that the applicants did not raise any claims in that respect and – in consequence – could not be considered asylum-seekers. The Court attaches more weight to the applicants’ version of the events at the border because it is corroborated by a large number of accounts collected from other witnesses by the national human rights institutions (in particular by the Children’s Ombudsman – see paragraphs 109-14 above). The reports by those bodies indicate the existence of a systemic practice of misrepresenting the statements given by asylum-seekers in the official notes drafted by the officers of the Border Guard serving at the border checkpoints between Poland and Belarus. Moreover, the irregularities in the procedure concerning the questioning of foreigners arriving at the Polish-Belarusian border at the relevant time, including the lack of a proper investigation into the reasons for which they sought entry into Poland, were confirmed by judgments of the Supreme Administrative Court (see paragraphs 76-77 above). 175. The applicants’ account of the statements that they gave at the border is also corroborated by a number of documents presented by them to the Court at all stages of the proceedings, especially by copies of the applications for international protection carried by the applicants at the time when they presented themselves at the border. The Court does not find it credible that the applicants possessed those documents (which they submitted to the Court – specifically when requesting that interim measures be indicated in their cases) but failed to hand them to the officers of the Border Guard who were about to decide whether to admit them into Poland or to return them to Belarus. Moreover, the applicants’ version of events in this respect is also supported by the fact that they made numerous attempts to cross the border and sought representation by Polish and Belarusian lawyers, who assisted them with drafting their statements, and who – in the case of the applicants in cases nos. 40503/17 and 43643/17 – on one occasion were present at the border in order to provide representation to the applicants, but were not allowed to meet with them (see paragraphs 11 and 54 above). 176. In any event, the Court points to the fact that the applicants’ applications for international protection, which comprised at least a general account of the reasons for their fear of persecution, and the documents provided by them in support of their claims were sent to the Government at the times when they were informed by the Court of the application of the interim measures in the applicants’ cases – namely, on 8, 16 and 20 June 2017 respectively (see paragraphs 16, 33 and 59 above). Furthermore, on 14 and 30 June and 4 July 2017 respectively, the Court (the duty judge) informed the Government that in the light of the fact that those documents had been transferred to the Government, it considered that the applicants had lodged requests for international protection (see paragraphs 21, 37 and 61 above). Information about the applicants’ claims was also subsequently submitted by electronic means directly to the Border Guard by the applicants’ representatives (see paragraphs 23, 35 and 64 above). It follows that, from those dates onwards, the Government were aware of the applications made by the applicants and of the existence of the documents substantiating them and were obliged to take those materials into account when assessing each applicant’s situation. 177. Accordingly, the Court cannot accept the argument of the Polish Government that the applicants had presented no evidence whatsoever that they were at risk of being subjected to treatment violating Article 3. The applicants indicated individual circumstances that – in their opinion – substantiated their applications for international protection and produced a number of documents (their testimony concerning a history of torture or threats, psychologists’ opinions, and official documents) substantiating their claims. They also raised arguments concerning the reasons for not considering Belarus to be a safe third country for them and why, in their opinion, returning them to Belarus would put them at risk of “chain refoulement ”. Those arguments were substantiated by the official statistics, which indicated that the asylum procedure in Belarus was not effective as far as Russian citizens were concerned. 178. The Court is therefore satisfied that the applicants could arguably claim that there was no guarantee that their asylum applications would be seriously examined by the Belarusian authorities and that their return to Chechnya could violate Article 3 of the Convention. The assessment of those claims should have been carried out by the Polish authorities acting in compliance with their procedural obligations under Article 3 of the Convention. Moreover, the Polish State was under an obligation to ensure the applicants’ safety, in particular by allowing them to remain within Polish jurisdiction until such time as their claims had been properly reviewed by a competent domestic authority. Taking into account the absolute nature of the right guaranteed under Article 3, the scope of that obligation was not dependent on whether the applicants had been carrying documents authorising them to cross the Polish border or whether they had been legally admitted to Polish territory on other grounds. 179. Moreover, in the Court’s view, in order for the State’s obligation under Article 3 of the Convention to be effectively fulfilled, a person seeking international protection must be provided with safeguards against having to return to his or her country of origin before such time as his or her allegations are thoroughly examined. Therefore, the Court considers that, pending an application for international protection, a State cannot deny access to its territory to a person presenting himself or herself at a border checkpoint who alleges that he or she may be subjected to ill-treatment if he or she remains on the territory of the neighbouring State, unless adequate measures are taken to eliminate such a risk. 180. The Court furthermore notes the Government’s argument that by refusing the applicants entry into Poland, the respondent State had acted in accordance with the legal obligations incumbent on it arising from Poland’s membership of the European Union. 181. The Court indicates, however, that the provisions of European Union law, including the Schengen Borders Code and Directive 2013/32/EU, clearly embrace the principle of non-refoulement, as guaranteed by the Geneva Convention, and also apply it to persons who are subjected to border checks before being admitted to the territory of one of the member States (see paragraphs 78-84 above). Those provisions (i) are clearly aimed at providing all asylum-seekers with effective access to the proper procedure by which their claims for international protection may be reviewed (see also Sharifi and Others v. Italy and Greece, no. 16643/09, § 169, 21 October 2014), and (ii) oblige the State to ensure that individuals who lodge applications for international protection are allowed to remain in the State in question until their applications are reviewed (see paragraph 91 above). 182. The Court thus notes that, under the Schengen Borders Code, the Polish authorities could have refrained from sending the applicants back to Belarus if they had accepted their application for international protection for review by the relevant authorities. Consequently, the Court considers that the impugned measure taken by the Polish authorities fell outside the scope of Poland’s strict international legal obligations (see, for a similar outcome, M.S.S. v. Belgium and Greece, § 340, and Ilias and Ahmed, § 97, both cited above). 183. The Court also notes that the very real character of the risk of ill ‑ treatment in the present cases is illustrated by the alleged events following the return of the first applicant in case no. 42902/17 to Belarus and, subsequently, to Russia, where he claims to have been captured, detained and tortured (see paragraphs 44-45 and 47 above). 184. In the light of the foregoing, the Court considers that the applicants did not have the benefit of effective guarantees that would have protected them from exposure to a real risk of being subjected to inhuman or degrading treatment, as well as torture. 185. The fact that no proceedings in which the applicants’ applications for international protection could be reviewed were initiated on the thirty ‑ five, eight and nineteen or more occasions when the respective applicants were at the Polish border crossings constituted a violation of Article 3 of the Convention. Moreover, given the situation in the neighbouring State, as described above, the Polish authorities, by failing to allow the applicants to remain on Polish territory pending the examination of their applications, knowingly exposed them to a serious risk of chain refoulement and treatment prohibited by Article 3 of the Convention. 186. There has accordingly been a violation of Article 3 of the Convention. Alleged violation of Article 3 of the Convention on account of the applicants’ treatment by the Polish authorities during border checks 187. The applicants also argued that there had been a violation of the prohibition of degrading treatment on account of the manner in which they had been treated during border checks at the Terespol and Czeremcha-Połowce border checkpoints (see paragraph 151 above). In that respect, they submitted that they had been placed in a situation in which statements made by them at the border had been bluntly disregarded by the border guards and that they had been denied the procedure to which they were entitled under the domestic law. The Court notes that those arguments are closely related to the issue of the applicants’ lack of access to the asylum procedure. Consequently, having regard to the finding of a violation of Article 3 on account of the applicants’ exposure to the risk of inhuman and degrading treatment, as well as torture, in Chechnya and their lack of access to the asylum procedure (see paragraph 186 above), the Court considers that it is not necessary to examine whether there has been a violation of Article 3 with respect to the way in which the applicants were treated during the border checks. ALLEGED VIOLATION OF ARTICLE 4 OF PROTOCOL No. 4 TO THE CONVENTION 188. The applicants furthermore complained that they had been subjected to a collective expulsion of aliens. They relied on Article 4 of Protocol No. 4 to the Convention, which provides: “Collective expulsion of aliens is prohibited.” The parties’ submissionsThe applicants The applicants The applicants 189. The applicants submitted that various human rights organisations had reported an increase in the number of allegations made by individuals (mostly of Chechen origin) that despite their repeated and clearly formulated statements at the Polish-Belarusian border indicating a wish to lodge an application for international protection, they had been denied such a possibility. They referred, inter alia, to the above-mentioned report by the Polish Ombudsman, indicating that it proved that the interviews carried out by the officers of the Border Guard had not been aimed at establishing the individual situation of foreigners arriving at the Polish border but at demonstrating that the reasons such foreigners sought entry into Poland were mainly of an economic nature (see paragraphs 98-105 above). They noted that foreigners, even if they directly expressed their fear of torture or other forms of persecution, were still asked in detail about their economic, professional and personal situation and not about their experiences relating to any fears that they had expressed. Statements lodged by foreigners expressing the intention to lodge applications for international protection and the reasons indicated therefor were ignored. 190. The applicants also referred to the statements given to the press by the Polish Minister of the Interior and Administration on 31 August 2016 (see paragraph 115 above). The applicants also submitted that the statistics presented by the Government showed that in 2017 there had been a significant decrease in the number of applications for international protection being received at the Polish-Belarusian border (particularly at the Terespol border checkpoint). According to the applicants, this decrease had resulted from the execution by the Polish Border Guard of a policy adopted by the Government of pushing back refugees. 191. The applicants furthermore argued that the collective nature of the policy of expelling foreigners was well illustrated by the events that had taken place on 17 March 2017, when a number of persons seeking entry into Poland (including the applicants in cases nos. 40503/17 and 43643/17) had been returned to Belarus without the possibility of meeting with their representatives (see paragraphs 11 and 54 above). 192. The applicants also submitted that as a matter of general practice neither lawyers nor representatives of non-governmental organisations or representatives of the UNHCR were allowed to observe or take part in interviews conducted at the second line of border control. In their opinion, the lack of any possibility for those being interviewed to consult a lawyer or a member of an organisation assisting refugees demonstrated the lack of transparency of the actions taken by the Border Guard. It was also one of the elements supporting the conclusion that the applicants had not been provided with the possibility to have their cases reviewed individually and, in consequence, that their expulsion had been of a collective nature. The Government 193. The Government submitted that every decision refusing entry into Poland issued with respect to the applicants had been based on an individual assessment of their situation and, in consequence, had not involved the collective expulsion of aliens. 194. Firstly, the Government reiterated that as the applicants had not had valid visas to enter Poland they had been directed to the second line of border control, at which individual interviews had been carried out in a language understood by the applicants. Those interviews had been aimed at obtaining full knowledge of the reasons for which the applicants had arrived at the border without the necessary documents. Each adult applicant had been interviewed separately; the minor applicants had not been interviewed – instead, the decisions issued in respect of their parents had also applied to them. Secondly, the Government submitted that each interview had been recorded in the form of an official note detailing the reasons given by each of the applicants for seeking entry into Poland and – if necessary – any other circumstances in respect of their cases. Thirdly, the Government indicated that the decisions denying entry had been prepared as separate documents in respect of each of the adult applicants (that is to say, on an individual basis) after a careful examination of his or her respective situation. All the applicants had been presented with the decisions. In some cases the applicants had refused to sign the respective decision and accept a copy thereof. Fourthly, the Government emphasised the fact that the number of attempts a foreigner had made to cross the border did not influence the decisions taken by the border guards. 195. The Government stated that the decisions concerning refusal of entry had been issued on the standardised form and – in the light of that fact – might have seemed similar to each other; however, they had in each instance been issued on the basis of an individual assessment of the situation of each of the applicants. 196. The Government also stressed that the fact that the decisions concerning refusal of entry had been taken on the basis of an individual assessment of each foreigner’s individual situation was corroborated by the relevant statistics. They submitted that in 2016 at the Terespol border checkpoint applications from 8,313 persons had been received and forwarded to the head of the Aliens Office for review, whereas in the first half of 2017 the applications of 1,212 persons had been received. The Court’s assessmentGeneral principles General principles General principles 197. According to the Court’s case-law, collective expulsion is to be understood as “any measure compelling 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 Sultani v. France, no. 45223/05, § 81, ECHR 2007 ‑ IV (extracts), and Georgia v. Russia (I) [GC], no. 13255/07, § 167, ECHR 2014 (extracts)). This does not mean, however, that where the latter condition is satisfied the background to the execution of an expulsion order plays no further role in determining whether there has been compliance with Article 4 of Protocol No. 4 (see Čonka, § 59, and Khlaifia and Others, § 237, both cited above). 198. The Court has previously held that the notion of expulsion used in Article 4 of Protocol No. 4 should be interpreted in the generic meaning in current use (that is to say “to drive away from a place”) (see Hirsi Jamaa and Others, cited above, § 174) and should be applied to all measures that may be characterised as constituting a formal act or conduct attributable to a State by which a foreigner is compelled to leave the territory of that State, even if under domestic law such measures are classified differently (for instance as the “refusal of entry with removal” rather than “expulsion” or “deportation” – see, in particular, Khlaifia and Others, cited above, § 243). This understanding of the notion of expulsion has been recently confirmed by the Grand Chamber in N.D. and N.T. v. Spain (cited above, § 185). 199. With regard to the scope of the application of Article 4 of Protocol No. 4, the Court notes that the wording of this provision, unlike Article 2 of Protocol No. 4 and Article 1 of Protocol No. 7, does not refer to the legal situation of the persons concerned. Moreover, it can be seen from the commentary on the draft of Protocol No. 4 that, according to the Committee of Experts, the aliens to whom Article 4 refers are not only those lawfully residing within a State’s territory, but also “all those who have no actual right to nationality in a State, whether they are merely passing through a country or reside or are domiciled in it, whether they are refugees or entered the country on their own initiative, or whether they are stateless or possess another nationality” (see Article 4 of the Committee’s final draft, p. 505, § 34; see also Georgia v. Russia (I), cited above, § 168). 200. In accordance with that interpretation, the Court has applied Article 4 of Protocol No. 4 not only to persons who were residing within the territory of a State but also to persons who arrived at the territory of the respondent State and were stopped and returned to the originating State (see Čonka, § 63, and Sultani, §§ 81-84, both cited above), irrespective of whether or not they arrived in the respondent State legally (see, among other authorities, Sharifi and Others, §§ 210-13, and Georgia v. Russia (I), § 170, both cited above). The Court has also applied Article 4 of Protocol No. 4 to persons who were intercepted on the high seas while trying to reach the territory of a respondent State and were stopped and returned to the originating State (see Hirsi Jamaa and Others, cited above, § 182), as well as to persons who were apprehended in an attempt to cross a national border by land and were immediately removed from a State’s territory by border guards (see N.D. and N.T. v. Spain, cited above, § 187). 201. The purpose of Article 4 of Protocol No. 4 is to prevent States from being able to return a certain number of foreigners without examining their personal circumstances and therefore without enabling them to put forward their arguments against the measure taken by the relevant authority (see Sharifi and Others, § 210, and Hirsi Jamaa and Others, § 177, both cited above). In order to determine whether there has been a sufficiently individualised examination, it is necessary to consider the circumstances of each such case and to verify whether a decision to return a foreigner took into consideration the specific situation of the individuals concerned (see Hirsi Jamaa and Others, cited above, § 183). Regard must also be had to the particular circumstances of the expulsion and to the “general context at the material time” (see Georgia v. Russia (I), cited above, § 171). 202. As the Court has previously observed, the fact that a number of aliens are subject to similar decisions does not in itself lead to the conclusion that there has been a collective expulsion if each person concerned has been given the opportunity to put arguments against his or her expulsion to the relevant authorities on an individual basis (see, among other authorities, M.A. v. Cyprus, §§ 246 and 254, and Khlaifia and Others, § 239, both cited above). In the past, when assessing the collective nature of expulsion, the Court has taken into consideration certain factors such as the fact that the decisions concerning the return of the applicants made no reference to their asylum request (even though the asylum procedure had not yet been completed), that the actions aimed at the return of foreigners had taken place in conditions that made it very difficult for the applicants to contact a lawyer, and that the relevant political bodies had announced that there would be operations of that kind (see Čonka, cited above, §§ 60 ‑ 63). The Court has also considered whether, before being subjected to “automatic returns”, applicants have had any effective possibility of seeking asylum (see Sharifi and Others, cited above, §§ 214-25). 203. In addition, the Court has taken the applicants’ own conduct into consideration when 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 absence of an individual expulsion decision can be attributed to the applicant’s own culpable conduct (see Khlaifia and Others, cited above, § 240). The Court has held, in particular, that a lack of active cooperation on the part of applicants with the available procedure for conducting an individual examination of their circumstances or recourse to unauthorised and clearly disruptive means of attempting to enter the State’s territory despite the existence of a genuine and effective access to means of legal entry might prompt the Court to find that the Government cannot be held responsible for the fact that the applicants’ circumstances were not individually examined (see N.D. and N.T. v. Spain, cited above, § 200). Application of the above principles to the present case 204. The Court must first address whether the decisions to refuse the applicants entry into Poland issued at the border checkpoints constituted an “expulsion” within the meaning of Article 4 of Protocol No. 4. In this context, the Court notes that in the case of Hirsi Jamaa and Others it held that Article 4 of Protocol No. 4 applied to migrants intercepted by the authorities of a State on the high seas and their removal to their countries of transit or origin (cited above, § 180). Given that the prohibition on the collective expulsion of aliens expressed in that provision was held to be applicable in respect of the actions of a State, the effect of which was to prevent migrants from reaching the borders of that State, then it is even more evident that it applies to a situation in which the aliens present themselves at a land border and are returned from there to the neighbouring country (see also N.D. and N.T. v. Spain, cited above, § 187). 205. Furthermore, as held above (see paragraphs 129-32 above), when subjected to border checks, the applicants were under the territorial jurisdiction of the Polish authorities. As a result of the decisions refusing them entry into Poland they were sent back, against their will, to Belarus, where they alleged that they remained at risk of being returned to Russia. The Court therefore concludes that they were expelled within the meaning of this provision (see Khlaifia and Others, cited above, § 243). It remains to be established whether that expulsion was “collective” in nature. 206. In this context the Court notes the Government’s argument that each time the applicants presented themselves at the Polish border, they were interviewed by the officers of the Border Guard and received individual decisions concerning the refusal to allow them entry into Poland. However, the Court has already indicated that it considers that during this procedure the applicants’ statements concerning their wish to apply for international protection were disregarded (see paragraph 174 above) and that even though individual decisions were issued with respect to each applicant, they did not properly reflect the reasons given by the applicants to justify their fear of persecution. The Court also points to the fact that the applicants were not allowed to consult lawyers and were denied access to them even when – in respect of the applicants in cases nos. 40503/17 and 43643/17 – their lawyers were at the border checkpoint and demanded to be allowed to meet with their clients (see paragraphs 11 and 54 above). 207. The Court further stresses that the applicants in the present case were trying to make use of the procedure of lodging applications for international protection that should have been available to them under domestic law. They attempted to cross the border in a legal manner, using an official checkpoint and subjecting themselves to border checks as required by the relevant law. Hence, the fact that the State refused to entertain their arguments concerning the justification for their applications for international protection cannot be attributed to their own conduct (compare N.D. and N.T. v. Spain, cited above, § 231). 208. Moreover, the independent reports concerning the situation (in particular regarding the border checkpoint at Terespol) indicate that the applicants’ cases constituted an exemplification of a wider State policy of refusing entry to foreigners coming from Belarus, regardless of whether they were clearly economic migrants or whether they expressed a fear of persecution in their countries of origin. Those reports noted a consistent practice of: holding very brief interviews, during which the foreigners’ statements concerning the justification for their seeking international protection were disregarded; emphasis being placed on the arguments that allowed them to be categorised as economic migrants; and misrepresenting the statements made by the foreigners in very brief official notes, which constituted the sole basis for issuing refusal-of-entry decisions and returning them to Belarus, even in the event that the foreigners in question had made it clear that they wished to apply for international protection in Poland (see paragraphs 98-114 above). 209. The conclusion concerning the existence of a wider State policy of not accepting for review applications for international protection and of returning individuals seeking such protection to Belarus is also supported by the statement of the then Minister of the Interior and Administration referred to by the applicants (see paragraphs 115 and 190 above). The statement in question, formulated by the Minister, who at the time oversaw the Border Guard, clearly expressed opposition towards accepting migrants from the Chechen Republic (see, mutatis mutandis, El ‑ Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 163, ECHR 2012). 210. The Court concludes that the decisions refusing entry into Poland issued in the applicants’ cases were not taken with proper regard to the individual situation of each of the applicants and were part of a wider policy of not receiving applications for international protection from persons presenting themselves at the Polish-Belarusian border and of returning those persons to Belarus, in violation of domestic and international law. Those decisions constituted a collective expulsion of aliens within the meaning of Article 4 of Protocol No. 4. 211. Accordingly, the Court considers that in the present case there has been a violation of Article 4 of Protocol No. 4 to the Convention. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 3 OF THE CONVENTION AND ARTICLE 4 OF PROTOCOL No. 4 TO THE CONVENTION 212. The applicants furthermore complained that they had not been afforded an effective remedy under Polish law by which to lodge with the domestic authorities their complaints under Article 3 of the Convention and Article 4 of Protocol No. 4. 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.” The parties’ submissionsThe applicants The applicants The applicants 213. The applicants stressed that they had presented substantial grounds for believing that if they were returned to Belarus they would face the risk of a violation of Article 3. In consequence, they should have had access to a remedy with automatic suspensive effect. However, the decisions concerning refusal of entry had been enforceable immediately and the lodging of appeals against those decisions would not have suspended their execution. 214. The applicants reiterated that, in their opinion, the head of the National Border Guard (who acted as the second-instance administrative authority in respect of cases of refusal of entry) could not be considered to constitute an independent body. In addition, the applicants submitted that the relevant statistics demonstrated that there was no genuine chance of their receiving a positive decision from the head of the National Border Guard, given the fact that in the period from 1 January 2016 until 15 September 2017 that body had received 203 appeals against decisions refusing entry into Poland. All decisions appealed against in this period had been upheld. 215. The applicants acknowledged that in the event of the head of the National Border Guard issuing a negative decision they could have lodged an appeal with the administrative courts, but they argued that proceedings before that court could take up to three years in total. In their view that rendered such an appeal ineffective, given the circumstances of their cases. The Government 216. The Government submitted that the applicants had had at their disposal an effective remedy – namely an appeal to the head of the National Border Guard against the decisions concerning refusal of entry. The Government acknowledged that an appeal did not have suspensive effect, but they argued that the domestic provisions were in this respect in accordance with European Union law, which obliged them to ensure that a third-country national who had been refused entry into a member State did not enter the territory of that State. The Government emphasised that the lack of suspensive effect of the appeal in question resulted from the special character of the decision on refusal of entry. They argued that if a foreigner did not fulfil the conditions for entry into Poland, the decision on refusal of entry had to be executed immediately, as there would be no grounds for the foreigner in question to remain on the territory of Poland. The Government also pointed out that in the event that the head of the National Border Guard issued a negative decision, domestic law provided the possibility of lodging a complaint with the administrative court. 217. The Government noted that in each of the three cases, the applicants had only appealed against some of the decisions concerning the refusal to allow them entry and that in respect of all the cases, proceedings were still pending. 218. Moreover, the Government argued that the decisions to refuse the applicants entry had been taken individually by officers of the Border Guard after taking into account the conditions existing at the moment when the decision had been taken. They stressed that although proceedings concerning the applicants’ appeals were pending, nothing was stopping them from coming to the border checkpoint again and – in the event that they fulfilled the conditions for entry – being admitted to the territory of Poland. The Court’s assessment 219. The Court has already concluded that the return of the applicants to Belarus amounted to a violation of Article 3 of the Convention and Article 4 of Protocol No. 4 (see paragraphs 186 and 211 above). The complaints lodged by the applicants on these points are therefore “arguable” for the purposes of Article 13 (see, in particular, Hirsi Jamaa and Others, cited above, § 201). Furthermore, the Court has ruled that the applicants in the present cases were to be treated as asylum-seekers (see paragraph 174 above); it has also established that their claims concerning the risk that they would be subjected to treatment in breach of Article 3 if returned to Belarus were disregarded by the authorities responsible for border control and that their personal situation was not taken into account (see paragraph 210 above). 220. In addition, the Court has already held that an appeal against a refusal of entry and a further appeal to the administrative courts were not effective remedies within the meaning of the Convention because they did not have automatic suspensive effect (see paragraph 147 above). The Government did not indicate any other remedies which might satisfy the criteria under Article 13 of the Convention. Accordingly, the Court finds that there has been a violation of Article 13 of the Convention taken in conjunction with Article 3 of the Convention and Article 4 of Protocol No. 4 to the Convention. ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION 221. Lastly, the applicants complained that the Government had failed to comply with the interim measures indicated by the Court in the applicants’ cases. They relied on Article 34 of the Convention, which provides: “The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.” Rule 39 of the Rules of Court provides: “1. The Chamber or, where appropriate, the President of the Section or a duty judge appointed pursuant to paragraph 4 of this Rule may, at the request of a party or of any other person concerned, or of their own motion, indicate to the parties any interim measure which they consider should be adopted in the interests of the parties or of the proper conduct of the proceedings. 2. Where it is considered appropriate, immediate notice of the measure adopted in a particular case may be given to the Committee of Ministers. 3. The Chamber or, where appropriate, the President of the Section or a duty judge appointed pursuant to paragraph 4 of this Rule may request information from the parties on any matter connected with the implementation of any interim measure indicated. 4. The President of the Court may appoint Vice-Presidents of Sections as duty judges to decide on requests for interim measures.” The parties’ submissionsThe applicants The applicants The applicants 222. The applicants argued that the failure by the Government to comply with the interim measures indicated by the Court in respect of their cases constituted a violation of Article 34. They indicated that they had provided the Court with sufficient information in support of their requests for interim measures, which had resulted in those measures being granted. The applicants stressed that according to the Court’s case-law, it was not open to a Contracting State to substitute its own judgment for that of the Court. Therefore, for as long as the measure was in place, the Government in question were bound by it. The applicants pointed out that in respect of their cases the Government had contested the interim measures from the very day on which they had been indicated to them, and had deliberately failed to comply with them. 223. The applicants reiterated that the period during which they could stay in Belarus without a visa had expired and that they were at risk of being returned to Russia, where they faced the danger of treatment breaching Article 3 of the Convention. They also indicated that, after the Government’s non-compliance with the interim measures, the applicants in all three cases had decided to leave Belarus for fear of being deported and had continued to flee in fear for their security. 224. Moreover, the applicants pointed out that the fact that they were represented by lawyers who had lodged applications on their behalf was irrelevant for the purposes of an assessment of the alleged violation of Article 34 of the Convention with regard to the Government’s non ‑ compliance with the above-mentioned interim measure. The applicants in cases nos. 40503/17 and 43643/17, who were represented by lawyers practicing in Poland, also noted that the fact that they could not enter Poland made contact with their lawyers more difficult and deprived them of the possibility to directly participate in the proceedings concerning their appeals against the decisions concerning refusal of entry that were pending before the domestic authorities. The Government 225. The Government argued that the respondent State had created no hindrance to the effective exercise of the applicants’ right of application. The Government stated in particular that their not executing the interim measures indicated by the Court on 8 and 16 June and 20 July 2017 respectively had not breached – in the circumstances of the present cases – Article 34 of the Convention. They indicated that the applicants’ right provided by this provision remained effective and had been exercised by the applicants. They also indicated that the required conditions for the imposition of the interim measures had not been met and that the measures ought therefore to be lifted. 226. The Government pointed out that Rule 39 of the Rules of Court could be applied only in restricted circumstances, when there was an imminent risk of irreparable damage. In the Government’s opinion, in the applicants’ cases no imminent risk of irreversible harm to any of the rights guaranteed by the Convention had occurred. The applicants had remained on the territory of Belarus for a significant period of time (almost a year in respect of the applicant in case no. 40503/17; four months in respect of the applicants in case no. 42902/17; and five months in respect of the applicants in case no. 43643/17) before they had submitted their applications for interim measures. According to the Government, they had not faced any real risk of harm; nor had they proved that continuing to stay in Belarus would give rise to such a risk. 227. Moreover, the Government submitted that the applicants’ stay in Belarus had in no way hindered their communications with the Court and had not negatively impacted their right to lodge and pursue their applications, especially as they had been represented at all stages of the proceedings before the Court. The Government also emphasised that the possibility for the applicants to lodge an application against Poland was not dependent on their presence on Polish territory and stressed that the Convention did not create an obligation for the respondent State to allow unauthorised entry onto its territory to anyone who lodged an application against it with the Court. Third-party interveners 228. The third-party interveners submitted that the very nature and function of interim measures necessitated that they have binding effect. They argued that full compliance with an interim measure required the State to rigorously apply and enforce the measure indicated by the Court. They also stressed that the binding force of interim measures on all international authorities was based on the necessity to preserve the facts pending adjudication of the case and to prevent irreparable damage to the interests of one of the parties before human rights courts and tribunals; it also served to preserve the capacity of a court or tribunal to provide real and effective protection of the human rights guaranteed by the governing treaty. The third-party interveners referred, inter alia, to interim measures that could be indicated in proceedings before the Inter-American Court of Human Rights, the Inter-American Commission on Human Rights or the UN Human Rights Committee. The Court’s assessmentGeneral principles General principles General principles 229. The Court reiterates that, pursuant to Article 34 of the Convention, Contracting States undertake to refrain from any act or omission that may hinder the effective exercise of the right of individual application, and this has been consistently reaffirmed as a cornerstone of the Convention system (see Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 102, ECHR 2005-I). Although the object of Article 34 is essentially that of protecting an individual against any arbitrary interference by the authorities, it does not merely compel States to abstain from such interference. There are positive obligations inherent in Article 34 requiring the authorities to furnish all necessary facilities to make possible the proper and effective examination of applications. Such an obligation will arise in particular in situations where applicants are particularly vulnerable (see Iulian Popescu v. Romania, no. 24999/04, § 33, 4 June 2013, and Amirov v. Russia, no. 51857/13, § 65, 27 November 2014). 230. According to the Court’s established case-law, since interim measures provided for by Rule 39 are indicated by the Court for the purpose of ensuring the effectiveness of the right of individual petition, a respondent State’s failure to comply with such measures entails a violation of the right of individual application (see Mamatkulov and Askarov, cited above, § 125; Abdulkhakov v. Russia, no. 14743/11, § 222, 2 October 2012; and Paladi v. Moldova [GC], no. 39806/05, § 88, 10 March 2009). 231. The crucial significance of interim measures is highlighted by the fact that the Court issues them, as a matter of principle, only in exceptional cases and on the basis of a rigorous examination of all the relevant circumstances. In most such cases, the applicants face a genuine threat to life and limb, with the ensuing real risk of grave, irreversible harm, in breach of the core provisions of the Convention. The vital role played by interim measures in the Convention system not only underpins their binding legal effect on the States concerned, as upheld by the established case-law, but also commands that the utmost importance be attached to the question of the States Parties’ compliance with the Court’s indications in that regard. Any laxity on this question would unacceptably weaken the protection of the core rights in the Convention and would not be compatible with its values and spirit (see Soering v. the United Kingdom, 7 July 1989, § 88, Series A no. 161; Mamatkulov and Askarov, cited above, §§ 100 and 125; and Amirov, cited above, § 67). 232. Furthermore, the Court would stress that it follows from the very nature of interim measures that a decision on whether they should be indicated in a given case will often have to be made within a very short space of time, with a view to preventing imminent potential harm from being done. Consequently, the full facts of the case will often remain undetermined until the Court’s judgment on the merits of the complaint to which the measure is related. It is precisely for the purpose of preserving the Court’s ability to render such a judgment after an effective examination of the complaint that such measures are indicated. Until that time, it may be unavoidable for the Court to indicate interim measures on the basis of facts which, despite making a prima facie case in favour of such measures, are subsequently added to or challenged to the point of calling into question the measures’ justification (see Paladi, cited above, § 89). 233. Consequently, it is not open to a Contracting State to substitute its own judgment for that of the Court in verifying whether or not there existed a real risk of immediate and irreparable damage to an applicant at the time when the interim measure was indicated. It is for the Court to verify compliance with the interim measure, while a State which considers that it is in possession of material capable of convincing the Court to annul the interim measure should inform the Court accordingly (see, mutatis mutandis, Tanrıkulu v. Turkey [GC], no. 23763/94, § 131, ECHR 1999-IV, and Paladi, cited above, § 90). At the same time a High Contracting Party may lodge at any time a request to lift an interim measure. 234. The point of departure for verifying whether a respondent State has complied with the measure is the formulation of the interim measure itself. The Court will therefore examine whether the respondent State complied with the letter and the spirit of the interim measure indicated to it. Article 34 will be breached if the authorities of a Contracting State fail to take all steps that could reasonably have been taken in order to comply with the measure indicated by the Court. It is for the Government to demonstrate to the Court that the interim measure was complied with (or, exceptionally, that there was an objective impediment which prevented compliance), and that the Government took all reasonable steps to remove that impediment and to keep the Court informed about the situation. In examining a complaint under Article 34 concerning the alleged failure of a Contracting State to comply with an interim measure, the Court will not, however, re ‑ examine whether its decision to apply that interim measure was correct (see, mutatis mutandis, Aleksanyan v. Russia, no. 46468/06, §§ 228 ‑ 32, 22 December 2008, and Paladi, cited above, §§ 91-92). Application of the above principles to the present case 235. The Court notes, firstly, that the interim measures indicated in respect of the applicants’ cases on 8 and 16 June and 20 July 2017, respectively, included instructions to the authorities to refrain from returning the applicants to Belarus. In cases nos. 40503/17 and 42902/17, the Court furthermore specified that the measures in question should be interpreted in such a way that – when the applicants presented themselves at a Polish border checkpoint – their applications for asylum should be received and registered by the Border Guard and forwarded for examination by the relevant authorities; the Court moreover specified that, pending examination of their asylum applications, the applicants should not be sent back to Belarus. Despite the indication of the interim measures, the applicants were turned away to Belarus not only on the days on which the measures were indicated (see paragraphs 16, 33 and 59 above) but also at least a few times thereafter (see paragraphs 22, 34, 38 and 62 above). It should be noted that on a number of those occasions the applicants were carrying with them copies of letters informing them of the indication of an interim measure in respect of their cases and that their representatives had sent copies of those letters directly to the Border Guard. 236. The Court furthermore observes that the Government have continuously questioned the possibility of complying with the interim measures, by indicating – even after the Court explained how to interpret the interim measures in question – that the applicants were never legally admitted to Poland in the first place and that they therefore could not have been removed. The Government also disputed the legitimacy of interim measures being indicated in respect of the present cases; they submitted that there had not been a sufficient factual basis for them and that the applicants had abused this tool in order to force the Border Guard to admit them to Poland. The Court would point out that the Government have continued to rely on those arguments even after the Court rejected them by dismissing the Government’s applications for the measures to be lifted (see paragraphs 21, 37 and 61 above). 237. The Court furthermore notes that in respect of cases nos. 40503/17 and 43643/17, the interim measures initially indicated on 8 June and 20 July 2017 have still not been complied with and remain in force. In respect of case no. 42902/17, the applicants were finally admitted to Poland on 7 January 2018 (the second applicant, together with her children) and 20 March 2018 (the first applicant), and the procedure concerning their applications for international protection has been initiated. It follows, therefore, that the interim measure in their case has been complied with; however that measure was undertaken only after a significant delay, which resulted in the applicants being put at risk of the kind of treatment that the measures were aimed at protecting them against (see, particularly with respect to the first applicant, paragraphs 47 and 183 above). 238. Accordingly, the Court concludes that Poland has failed to discharge its obligations under Article 34 of the Convention. RULE 39 OF THE RULES OF COURT 239. 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 the request to refer under Article 43 of the Convention. 240. It considers that the indications made to the Government under Rule 39 of the Rules of Court in cases nos. 40503/17 and 43643/17 (see paragraphs 16 and 59 above) must remain in force until the present judgment becomes final or until the Court takes a further decision in this connection. APPLICATION OF ARTICLE 41 OF THE CONVENTION 241. 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 242. The applicant in case no. 40503/17 claimed no less than 10,000 euros (EUR) in respect of non-pecuniary damage, leaving the exact amount to the Court’s discretion. 243. The applicants in case no. 42902/17 claimed jointly EUR 210,000 in respect of non-pecuniary damage and EUR 4,200 in respect of pecuniary damage for living expenses incurred while they were residing in Brest. 244. The applicants in case no. 43643/17 claimed no less than EUR 35,000 in respect of non-pecuniary damage (leaving the determination of the exact amount to the Court) and EUR 11,100 in respect of pecuniary damage for living expenses incurred while they were residing in Brest. 245. The Government submitted that the amounts indicated by the applicants were excessive and unjustified. 246. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects these claims. On the other hand, in respect of non-pecuniary damage, ruling on an equitable basis, it awards the applicant in case no. 40503/17 EUR 34,000, the applicants in case no. 42902/17 EUR 34,000 jointly, and the applicants in case no. 43643/17 EUR 34,000 jointly. Costs and expenses 247. The applicant in case no. 40503/17 also claimed EUR 440 in respect of the costs and expenses incurred before the domestic authorities (including court fees incurred before the Warsaw Regional Administrative Court and the cost of train tickets from Brest to Terespol). He did not lodge any claim in respect of the costs incurred before the Court. 248. The applicants in case no. 42902/17 claimed EUR 120 in respect of the costs and expenses incurred before the domestic authorities (including the cost of train tickets from Brest to Terespol) and EUR 38.70 in respect of the costs incurred before the Court. 249. The applicants in case no. 43643/17 claimed EUR 740 in respect of the costs and expenses incurred before the domestic authorities (including court fees incurred before the Warsaw Regional Administrative Court and the cost of train tickets from Brest to Terespol). They did not lodge any claim in respect of the costs incurred before the Court. 250. The Government submitted that there was no reason to reimburse the applicants the cost of their train tickets. They did not comment on the remainder of the applicants’ claims concerning costs and expenses. 251. 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 in case no. 40503/17 EUR 140, the applicants in case no. 42902/17 EUR 39, and the applicants in case no. 43643/17 EUR 140, covering costs under all heads. Default interest 252. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 4 of Protocol No. 4 to the Convention, finding that the decisions refusing the applicants entry to Poland had not been taken with proper regard to their individual situations and had been part of a wider policy of refusing to receive asylum applications from persons presenting at the Polish-Belarusian border and of returning those persons to Belarus. The Court also found a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention on account of having denied the applicants access to the asylum procedure and removing them to Belarus, and a violation of Article 13 (right to an effective remedy) in conjunction with Article 3 and in conjunction with Article 4 of Protocol No. 4, due to the absence of a remedy with automatic suspensive effect. It lastly found that Poland had failed to discharge its obligations under Article 34 (right to individual application) of the Convention: it complied with the interim measures indicated by the Court with significant delay or not at all. |
543 | Violent acts by private individuals | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Criminal Code 1. Offences with which the assailants were charged 56. For the offence of murder stemming from an act of hooliganism the Criminal Code, as in force in 1996, envisaged a sentence of fifteen to twenty years'imprisonment, life imprisonment or death ( Article 116 (10) ). In 1998 the death penalty was replaced with “life imprisonment without the possibility of substitution”. For juveniles aged from sixteen to eighteen years, the sentence was five to twelve years'imprisonment ( Article 63 § 2 (1) ) and for those from fourteen to sixteen years – up to ten years'imprisonment ( Article 63 § 1 (1) and (2) ). The statute of limitation was twenty-two-and-a-half years for juveniles aged from sixteen to eighteen years ( Article 80 § 1 (2) in conjunction with § 2 and Article 81 § 3 ) and fifteen years for those aged from fourteen to sixteen years ( Article 80 § 1 (3) in conjunction with § 2 and Article 81 § 3 ). 57. For negligent homicide resulting from an inflicted median bodily injury, the Criminal Code envisaged a sentence of two to eight years'imprisonment (Article 124 § 1), which for juveniles aged fourteen to sixteen years was up to three years'imprisonment ( Article 63 § 1 (3) and (4) ). The statute of limitation for such juveniles was seven-and-a-half years ( Article 80 § 1 (4) in conjunction with § 2 and Article 81 § 3 ). 58. For hooliganism of exceptional cynicism and impudence, the Criminal Code envisaged a sentence of up to five years'imprisonment ( Article 325 § 2 (2) ), which for juveniles aged fourteen to sixteen years was up to two years'imprisonment ( Article 63 § 1 (4) ). The statute of limitation for such juveniles was seven-and-a-half years ( Article 80 § 1 (4) in conjunction with § 2 and Article 81 § 3 ). 59. For making false statements to the authorities incriminating someone in having committed an offence, as a result of which charges were brought against that individual, the Criminal Code envisaged a sentence of one to ten years'imprisonment (Article 286 § 3), which for juveniles aged fourteen to sixteen years was up to three years'imprisonment ( Article 63 § 1 (3) and (4) ). The statute of limitation for such juveniles was seven-and-a-half years ( Article 80 § 1 (4) in conjunction with § 2 and Article 81 § 3 ). 2. Racially motivated offences 60. Article 162 of the Criminal Code criminalises the propagation and incitement of hostility and hatred, as well as violence based, inter alia, on racial grounds. The relevant part of the Article provides : “1. [A person] who propagates or incites towards racial... hostility or hatred, or towards racial discrimination, shall be punished with imprisonment of up to three years and a public reprimand. 2. [A person] who [resorts to] violence against another or damages [his/her] property because of [his/her]... race... shall be punished with imprisonment of up to three years and a public reprimand. 3. [A person] who forms or leads an organisation or group, the set goal of which is the perpetration of an offence under the preceding paragraphs, shall be punished with imprisonment of between one to six years and a public reprimand. 4. A member of such an organisation or group shall be punished with imprisonment of up to three years and a public reprimand .” 61. Article 163 of the Criminal Code criminalises, inter alia, racially motivated mob violence. The relevant part of the Article provides : “1. Persons who participate in a mob rallied in order to attack groups of [people], individuals or their property because of their... racial affiliation shall be punished [as follows]: (1) the instigators and leaders – with imprisonment of up to five years; (2) the remainder – with imprisonment of up to one year or probation. 2. If the mob or some of its participants are armed, the punishment shall be: (1) for the instigators and leaders – imprisonment of one to six years; (2) for the remainder – imprisonment of up to three years. 3. If an attack is carried out and, as a result, a serious bodily injury or death occurs, the instigators and leaders shall be punished with imprisonment of three to fifteen years, while the remainder shall be punished with imprisonment of up to five years, unless they are subject to a more severe punishment.” 62. Articles 416 to 418 of the Criminal Code criminalise racially motivated genocide and apartheid. 63. Article 54 § 1 provides that domestic courts are to take into account, inter alia, the motives of the perpetrator when determining the sentence to be imposed. B. Code of Criminal Procedure (1974) 64. Article 192, as in force at the relevant time, provided that criminal proceedings concerning publicly prosecutable offences could only be initiated by a prosecutor or an investigator, acting on a complaint or ex officio. The offences with which the assailants were charged were publicly prosecutable offences. 65. Under Article 237 § 6, as worded until 1 January 2000, a victim had a right of appeal to a higher ranking prosecutor against a decision not to proceed with pending criminal proceedings. After 30 April 2001 the victim had the right of appeal against such a decision by a prosecutor to the domestic courts. The victim had no other means to challenge a refusal to prosecute. 66. Victims of crime, or their successors, had the right to join the criminal proceedings as civil claimants and, in that connection, to claim damages, inspect the case file, make copies of relevant documents, adduce evidence, raise objections and make applications (Articles 60 § 1 and 63). They had the right to appeal against decisions of the courts which impinged on their rights and interests, which right they also had in respect of decisions of the investigating and prosecuting authorities until 2 May 2003 (Article 63 § 1). C. Code of Criminal Procedure (2006) 67. The new Code of Criminal Procedure introduced separate rights in the criminal proceedings for victims or their heirs, such as the right to participate in them, to be informed of their progress and to appeal against decisions terminating or suspending them (Articles 74 and 75). 68. Victims of crime or their heirs have the right to join criminal proceedings as civil claimants and, in that connection, to claim damages, inspect the case file, make copies of relevant documents, adduce evidence, raise objections and make applications (Articles 84 § 1 and 87). They also have the right to appeal against decisions of the courts which impinge on their rights and interests (Article 87 § 1). D. Protection against Discrimination Act (2004) 69. The Protection against Discrimination Act was passed in September 2003 and entered into force on 1 January 2004. It is a comprehensive piece of legislation designed to create machinery providing effective protection against discrimination. It applies mainly in the spheres of labour relations, State administration and the provision of services. The Act created a Commission for Protection against Discrimination with jurisdiction, inter alia, to hear individual complaints (sections 40 and 50). 70. Section 9 of the Act provides for the shifting of the burden of proof in discrimination cases. Under that section, where a claimant is able to prove facts from which an inference might be drawn that there had been discriminatory treatment, it is incumbent on the defendant to prove that there had not been a violation of the right to equal treatment. 71. Once successful before the Commission, a plaintiff can initiate a tort action for damages before the domestic courts ( section 74 (1) ). If the damages were caused to a private person as a result of an unlawful act, action or inaction by State bodies or officials, the action for damages has to be filed under the State Responsibility for Damage Act ( section 74 (2)). No relevant case-law was presented by the parties or was identified as having been reported, to indicate whether or how frequently the aforementioned provision has been utilised in obtaining redress for acts of discrimination from State bodies and officials. E. State and Municipalities Responsibility for Damage Act (1988) 72. The State and Municipalities Responsibility for Damage Act of 1988 (“the SMRDA”) provides that (a) the State and municipalities are liable for damage caused to private and juridical persons by the illegal orders, actions or omissions of government bodies and officials acting within the scope of, or in connection with, their administrative duties; and (b) that in certain cases the State is liable for damage caused to private persons by the organs of the investigation, the prosecution and the courts (sections 1-2). 73. The relevant domestic law and practice under section 1 of the SMRDA has been summarised in the case of Iovchev v. Bulgaria (no. 41211/98, §§ 76 ‑ 80, 2 February 2006). 74. Section 2 of the SMRDA provides, as relevant: “The State shall be liable for damage caused to [private persons] by the organs of... the investigation, the prosecution, the courts... for unlawful : 1. detention..., if [the detention order] has been set aside for lack of lawful grounds; 2. accusation of a crime, if the [accused] has been acquitted or the criminal proceedings have been terminated on the grounds that the actions were not perpetrated by the [accused] or that the actions do not constitute an offence, or because the criminal proceedings were opened after the statute of limitations expired or the actions were amnestied; 3. conviction of a crime ..., if the person concerned is subsequently acquitted...; 4. imposition by a court of compulsory medical treatment..., if [the decision] has been set aside for lack of lawful grounds; 5. imposition by a court of an administrative measure..., if [the decision] has been set aside as unlawful; 6. execution of an imposed sentence in excess of the set term or amount.” 75. Persons seeking redress for damage occasioned by decisions of the investigating and prosecuting authorities or the courts in circumstances falling within the scope of the SMRDA have no claim under general tort law, as the Act is a lex specialis and excludes the application of the general regime (section 8 (1) of the Act; решение № 1370 от 16.XII.1992 г. по гр.д. № 1181/92 г., IV г.о. and Тълкувателно решение № 3 от 22.04.2005 г. по т. гр. д. № 3/2004 г., ОСГК на ВКС ). III. INTERNATIONAL INSTRUMENTS AND COMPARATIVE LAW ON RACIST VIOLENCE 76. The relevant international instruments and comparative law on racist violence has been summarised in paragraphs 76-82 of the Court's judgment in the case of Nachova and Others v. Bulgaria [GC] (nos. 43577/98 and 43579/98, 6 July 2005 ). THE LAW I. ALLEGED VIOLATION OF ARTICLES 2, 3 and 13 OF THE CONVENTION 77. The applicants complained under Articles 2, 3 and 13 of the Convention that the authorities failed to carry out a prompt, effective and impartial investigation capable of leading to the trial and conviction of the individuals responsible for the ill-treatment and death of their relative. They also complained that the domestic criminal legislation contained no specific provisions incriminating the offences of murder or serious bodily injury, or indeed any other felony, as separate criminal offences where the latter were racially motivated, nor did it contain explicit penalty-enhancing provisions relating to racially motivated offences. Lastly, they complained that the authorities had failed to apply the existing but similarly inadequate provisions of the Criminal Code concerning racially motivated offences. Articles 2, 3 and 13 of the Convention provide: Article 2 “1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.” Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Article 13 “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. The parties'submissions 1. The Government 78. The Government contested the applicants'assertions and argued that the application should be declared inadmissible on account of a failure to exhaust domestic remedies. In particular, they considered it to be premature because the applicants had not waited for the completion of the criminal proceedings against the assailants which, they argued, could address and resolve some of the complaints raised before the Court. 79. Separately, the Government claimed that the investigation into the victim's death had been conducted by the authorities with the required diligence. They considered that the investigation had been extremely delicate and complex, given that most of the assailants had been juveniles at the time of the attack and kept changing their statements. As a result, the authorities needed to question the same witnesses on more than one occasion, and conducted confrontations between such witnesses and performed medical and other tests and analyses. In spite of their efforts, the assailants'testimonies remained contradictory, which resulted in the case being remitted on three occasions. In the end, murder charges had been brought against one of the assailants, which the Government argued was an indication that the investigation had been completely impartial and not discriminatory. 80. Separately, the Government noted that the first applicant had been recognised as a civil claimant in the criminal proceedings and had been provided with access to the investigation file. They claimed that her legitimate interests had therefore been adequately guaranteed and protected. 81. In view of the above, the Government argued that there had been no violations of Articles 2, 3 and 1 3 of the Convention, on the basis that the investigation had been conducted diligently in spite of the objective and subjective obstructions it had encountered. 2. The applicants 82. The applicants disagreed with the Government's assertion that they had failed to exhaust domestic remedies by not waiting for the completion of the criminal proceedings. They noted that in respect of most of the assailants, the criminal proceedings had been terminated on 18 March 2005 because the statute of limitations had expired. In respect of these individuals the criminal proceedings were no longer pending and they could no longer be charged with any other offence stemming from their participation in the attack against the applicants'relative. Thus, the applicants'complaints in respect of these persons could not be claimed to be premature. In respect of the murder charge, the applicants noted that criminal proceedings were pending only against the first assailant. They stressed, however, that there had been no further development in the criminal proceedings following the decision of 18 March 2005 and that the charges against the first assailant had not been amended. In any event, the applicants argued that the State's positive duty to investigate and prosecute the offenders included a time component. Referring to the Court's judgment in the case of Selmouni v. France [GC] (no. 25803/94, ECHR 1999 ‑ V) the applicants argued that where such an investigation is unduly prolonged, its excessive length alone would render it ineffective. Lastly, they noted that the question of whether or not the investigation had been effective was a question on the merits and called for the Government's objection to be dismissed. 83. Separately, the applicants reiterated their complaints and argued that the respondent State had violated its positive obligations under Articles 2 and 3 of the Convention to conduct an effective investigation capable of leading to the punishment of the individuals responsible for the ill-treatment and death of their relative. 84. Referring to the Court's case-law, the applicants argued that in the present case the investigation conducted by the authorities had clearly been ineffective as it had, for a considerable length of time, failed to result in prosecution and punishment of the assailants. 85. Lastly, the applicants claimed that the decision of 18 March 2005 of the Shumen Regional Prosecutor's Office had made it even more unlikely that any of the assailants would be punished for the death of their relative, because they considered that the evidence against the first assailant was not conclusive enough for a successful prosecution. They argued that the statements and evidence pointing to the second assailant as the stabber had been much more substantial and credible but noted that, due to the expiration of the statute of limitation, they had all become irrelevant. They submitted that, as a result of the investigation having taken such a long time and having been ineffectively conducted, any possibility of a successful prosecution of any of the assailants was precluded. 86. The applicants made similar submissions in respect of the investigation into their relative's ill-treatment by the assailants, which they likewise considered to have been excessively delayed and ineffective. They noted that none of the assailants had been charged with causing bodily injury to their relative but had only been charged with “hooliganism”, which allegedly carried a lighter sentence. However, even these charges were dismissed on 18 March 2005 against all but one of the assailants because the statute of limitations had expired. B. Admissibility 87. The Court notes that the Government argued that the applicants failed to exhaust domestic remedies by not waiting for the criminal proceedings against the assailants to be completed. The applicants meanwhile claimed that the question of exhaustion of domestic remedies was inextricably linked to the merits of the complaint and, in addition, that in respect of part of the assailants the criminal proceedings had in any event been terminated on 18 March 2005. 88. The Court observes that that the criminal proceedings were opened against the assailants on 19 April 1996 and were still pending at the investigation stage when the applicants filed their complaints with the Court on 7 February 2000 arguing, inter alia, that the said proceedings were of excessive length and therefore ineffective. Subsequently, on 18 March 2005 the criminal proceedings against all but two of the assailants were terminated. Presumably, however, they are still ongoing against the two individuals in question. 89. The Court finds that the question of exhaustion of domestic remedies and the length of the criminal proceedings against the assailants inevitably relate to the merits of the applicants'complaint that the length of the investigation in itself rendered it ineffective. Therefore, to avoid prejudging the latter, these questions should be examined together. Accordingly, the Court holds that the question of exhaustion of domestic remedies should be joined to the merits. 90. In conclusion, the Court finds that the applicants'complaints under Articles 2, 3 and 13 of the Convention are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, or inadmissible on any other grounds. They must therefore be declared admissible. C. Merits 1. General principles 91. Article 2 of the Convention, which safeguards the right to life, ranks as one of the most fundamental provisions in the Convention and enshrines one of the basic values of the democratic societies making up the Council of Europe. The Court must subject allegations of breach of this provision to the most careful scrutiny (see Nachova and Others, cited above, § 93 ). 92. The Court observes at the outset that the applicants did not contend that the authorities of the respondent State were responsible for the death of their relative; nor did they imply that the authorities knew or ought to have known that he was at risk of physical violence at the hands of third parties and failed to take appropriate measures to safeguard him against such a risk. The present case should therefore be distinguished from cases involving the alleged use of lethal force either by agents of the State or by private parties with their collusion (see McCann and Others v. the United Kingdom, judgment of 27 September 1995, Series A no. 324; Shanaghan v. the United Kingdom, no. 37715/97, § 90, 4 May 2001; Anguelova v. Bulgaria, no. 38361/97, ECHR 2002 ‑ IV; Nachova and Others, cited above; and Ognyanova and Choban v. Bulgaria, no. 46317/99, 23 February 2006), or in which the factual circumstances imposed an obligation on the authorities to protect an individual's life, for example where they had assumed responsibility for his welfare (see Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, ECHR 2002 ‑ II ) or where they knew or ought to have known that his life was at risk (see Osman v. the United Kingdom, judgment of 28 October 1998, Reports of Judgments and Decisions 1998 ‑ VIII ). 93. However, the absence of any direct State responsibility for the death of the applicants'relative does not exclude the applicability of Article 2 of the Convention. The Court reiterates that by requiring a State to take appropriate steps to safeguard the lives of those within its jurisdiction (see L.C.B. v. the United Kingdom, judgment of 9 June 1998, Reports 1998 ‑ III, p. 1403, § 36), Article 2 § 1 of the Convention imposes a duty on that State to secure the right to life by putting in place effective criminal law provisions to deter the commission of offences against the person, backed up by law - enforcement machinery for the prevention, suppression and punishment of breaches of such provisions (see Osman, cited above, § 115). 94. The Court reiterates that in the circumstances of the present case this obligation requires that there should be some form of effective official investigation when there is reason to believe that an individual has sustained life-threatening injuries in suspicious circumstances. The investigation must be capable of establishing the cause of the injuries and the identification of those responsible with a view to their punishment. Where death results, as in the present case, the investigation assumes even greater importance, having regard to the fact that the essential purpose of such an investigation is to secure the effective implementation of the domestic laws which protect the right to life (see Anguelova, cited above, § 137; Nachova and Others, cited above, § 110; and Ognyanova and Choban, cited above, § 103 ). 95. The Court reiterates that in cases involving allegations that State agents were responsible for the death of an individual, it has qualified the scope of the above-mentioned obligation as one of means, not of result. Thus, the authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eye witness testimony, forensic evidence and, where appropriate, an autopsy which provides a complete and accurate record of injury and an objective analysis of clinical findings, including the cause of death. Any deficiency in the investigation which undermines its ability to establish the cause of death, or the person or persons responsible will risk falling foul of this standard (see Anguelova, cited above, § 139; Nachova and Others, cited above, § 113; and Ognyanova and Choban, cited above, § 105 ). 96. What form of investigation will achieve those purposes may vary in different circumstances. However, whatever mode is employed, the authorities must act of their own motion once the matter has come to their attention. They cannot leave it to the initiative of the next-of-kin either to lodge a formal complaint or to request particular lines of inquiry or investigative procedures (see İlhan v. Turkey [GC], no. 22277/93, § 63, ECHR 2000 ‑ VII, and Nachova and Others, cited above, § 111 ). 97. A requirement of promptness and reasonable expedition is implicit in this context. 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 v. the United Kingdom, no. 2888 3/95, § 114, ECHR 2001 ‑ III; and Ognyanova and Choban, cited above, § 106 ). 98. Although there was no State involvement in the death of the applicants'relative, the Court considers that the above-mentioned basic procedural requirements apply with equal force to the conduct of an investigation into a life-threatening attack on an individual, regardless of whether or not death results (see, mutatis mutandis, M.C. v. Bulgaria, no. 39272/98, § 151, ECHR 2003 ‑ XII ). Moreover it would add that, where that attack is racially motivated, it is particularly important that the investigation is 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 Menson and Others v. the United Kingdom (dec.), no. 47916/99, ECHR 2003-V ). 2. Application of these principles in the present case 99. The Court observes that the preliminary investigation into the death of the applicants'relative was opened almost immediately after the attack on 18 April 1996 (see paragraphs 10 and 11 above). Within less than a day the investigation had identified the persons who had perpetrated the attack, had detained or questioned all of them and had charged the first assailant with murder stemming from an act of hooliganism (see paragraph 12 above). At the same time, the investigation was informed by one of the assailants, D.K., that the attack had been racially motivated because the victim was of Roma origin (see paragraph 13 above). Within another month the investigation had commissioned medical and other reports and had charged the remaining five assailants with hooliganism of exceptional cynicism and impudence (see paragraphs 14 - 22 above). 100. The Court further observes that the changes in the testimonies of those assailants who had at first blamed the first assailant for stabbing the victim were initially dealt with expeditiously by the authorities. Namely, the charges against the first assailant were amended to hooliganism of exceptional cynicism and impudence (see paragraph 26 above), N.R. and S.H. were charged with having made false statements to the investigation authorities incriminating the first assailant, (see paragraph 27 above) and the second assailant was charged with negligent homicide resulting from an inflicted median bodily injury (see paragraph 28 above). 101. Over the next three years, however, the preliminary investigation became protracted for undisclosed reasons, with investigative procedures being performed approximately once a year (see paragraphs 30- 34 above). From 1999 to 2001 there was more activity on the part of the authorities, but in spite of the numerous confrontations between witnesses, the medical and other evaluations and examinations performed and the investigator's proposals to bring the assailants to trial, nothing further of substance transpired (see paragraphs 34-50 above). Then, for a period of four years between 200 1 and 2005, there were absolutely no further developments and the criminal proceedings remained at the investigation stage until the present case was communicated to the respondent Government (see paragraphs 5 and 50-52 above). As a result of the accumulated delays, the statute of limitations expired in respect of the majority of the assailants and the authorities terminated the criminal proceedings against them on 18 March 2005. Thus, in spite of the authorities having identified the assailants almost immediately after the attack and having determined with some degree of certainty the identity of the stabber, no one was brought to trial for the attack on the applicants'relative over a period of more than eleven years. 102. The Court observes in this respect that the Government failed to provide convincing explanations for the protraction of the criminal proceedings. It finds that the arguments put forward by them do not provide justification for the authorities'failure over several years to conclude the criminal proceedings and bring the assailants to trial. 103. The Court recognises that the preliminary investigation is still pending against two of the assailants, but, considering the length of the proceedings so far, it finds it questionable whether either of them will ever be brought to trial or be successfully convicted. In any event, the Court does not consider it necessary to make an assessment of this point in the context of the present proceedings, in view of the accumulated length of the proceedings so far and the fact that they were terminated in respect of the majority of the assailants due to the expiration of the statute of limitation as a result of the authorities'inactivity. In this respect, it also does not consider that the applicants should have waited for the completion of the criminal proceedings before filing their complaints with the Court, as the conclusion of those proceedings would not remedy their overall delay in any way. 104. As to whether the respondent State's legal system provided adequate protection against racially motivated offences, the Court observes that it did not separately criminalise racially motivated murder or serious bodily injury (Articles 115-135 of the Criminal Code ), nor did it contain explicit penalty-enhancing provisions relating to such offences if they were motivated by racism (Articles 116 and 131 of the Criminal Code ). However, the Court considers that other means may also be employed to attain the desired result of punishing perpetrators who have racist motives. It observes in this respect that the possibility existed in domestic legislation to impose a more severe sentence depending on, inter alia, the motive of the offender (see paragraph 63 above). The Court further observes that the authorities charged the assailants with aggravated offences, which though failing to make a direct reference of the racist motives of the perpetrators provided for more severe sentences than those envisaged in domestic legislation for racial hatred offences (see paragraphs 56 - 61 above). Thus, it does not consider that domestic legislation and the lack of penalty-enhancing provisions for racist murder or serious bodily injury were responsible in the present case for hampering or constraining the authorities from conducting an effective investigation into the death of the applicants'relative and applying effectively the existing domestic legislation. 105. In conclusion, the Court finds that in the particular circumstances of the present case the authorities failed in their obligation under Article 2 of the Convention to effectively investigate the death of the applicants'relative promptly, expeditiously and with the required vigour, considering the racial motives of the attack and the need to maintain the confidence of minorities in the ability of the authorities to protect them from the threat of racist violence. Thus, there has been a violation of Article 2 § 1 of the Convention. It follows that the Government's preliminary objection (see paragraphs 89 and 103 above) must be dismissed. 106. Having regard to the above conclusion, the Court does not deem it necessary in the present case to make a separate finding under Articles 3 and 13 of the Convention (see, mutatis mutandis, Anguelova, cited above, § 150; Ognyanova and Choban, cited above, § 124; and Nachova and Others, cited above, § 123 ). II. ALLEGED VIOLATION OF ARTICLE 14 IN CONJUNCTION WITH ARTICLES 2 AND 3 OF THE CONVENTION 107. The applicants alleged a violation of Article 14 in conjunction with Articles 2 and 3 of the Convention in that the authorities failed in their duty to investigate and prosecute a racially motivated violent offence. They referred, inter alia, to their Roma origin, the alleged widespread prejudices against their ethnic group and the authorities'consistent failure to address systematic patterns of violence and discrimination against their community. Article 14 of the Convention provides. “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” A. The parties'submissions 1. The Government 108. The Government contested the applicants'assertion and argued that the complaint should be declared inadmissible on account of a failure to exhaust the domestic remedies. They claimed that the applicants could have initiated an action against the authorities under the Protection against Discrimination Act, in force as from 1 January 2004, if they believed that there had been discriminatory motives for the investigation having taken too long or for any alleged inactivity on the part of the authorities. 109. In any event, the Government considered that there had not been any discriminatory motive in the way the authorities had conducted the investigation and argued that this had been demonstrated by the diligence with which it had been conducted, its preciseness and the severity of the charges finally brought against the first assailant. 2. The applicants 110. The applicants challenged the Government's claim that the complaint should be declared inadmissible on account of a failure to exhaust the domestic remedies. They argued that an action under the Protection against Discrimination Act was not a remedy that they were required to exhaust because it was neither effective nor available. The applicants noted that the Court had repeatedly held that there is no requirement that remedies that are neither adequate nor effective should be used (see, mutatis mutandis, Sakık and Others v. Turkey, judgment of 26 November 1997, Reports 1997 ‑ VII, p. 2625, § 53 ) and that an individual must have clear, practical opportunity to challenge an act which is an interference with his or her rights (see De Geouffre de la Pradelle v. France, judgment of 16 December 1992, Series A no. 253 ‑ B, p. 43, § 34 and Bellet v. France, judgment of 4 December 1995, Series A no. 333 ‑ B, p. 42, § 36). In respect of the lack of availability of the remedy claimed by the Government, the applicants noted that the Protection against Discrimination Act entered into force close to four years after they had lodged their complaints with the Court. With regard to its effectiveness, they argued that an action for damages, be it based on anti-discrimination legislation or general tort law, could not remedy the substance of their complaint before the Court, which was that the authorities had failed to conduct an effective investigation into the death of their relative and to prosecute the perpetrators. Moreover, an action under the Act would be directed against the investigation authorities and would require the applicants to prove discriminatory treatment by them on the basis of race, of which there was no direct evidence. Thus, the applicants claimed that there was no clear link between the complaints they raised before the Court and the remedy suggested by the Government. 111. On the merits of their complaint, the applicants referred to the Court's judgment of 26 February 2004 in the case of Nachova and Others ( cited above ) and noted that States which are parties to the Convention had a positive duty to investigate possible discriminatory motives in cases where there was evidence of racially motivated violence. In line with the Court's ruling in that judgment, the applicants argued that Article 14 of the Convention, taken together with Article 2 and 3 of the Convention, contained a separate procedural obligation to carry out such an investigation. Such an obligation, they further argued, was fully in line with the Court's existing case - law under Articles 2 and 3 of the Convention (see Menson and Others (dec.), cited above ) and the existing standards under international law (see the jurisprudence of the United Nations Committee on the Elimination of All Forms of Racial Discrimination – Case No. 4/1991, L.K. v. the Netherlands, Views adopted on 16 March 1993, para. 6.6.). The applicants thus claimed that in the present case Article 14, in conjunction with Articles 2 and 3 of the Convention, had been violated with respect to its procedural aspect – the duty to investigate where there is evidence reasonably suggesting that there was racially motivated violence and killing. 112. The applicants argued that the investigation had collected testimony and forensic evidence that clearly established that the victim was attacked, severely beaten and killed because of his race. In particular, the assailants testified that the victim was picked, beaten and killed because, and only because, he was a Roma. Sufficient evidence was also collected that this was by no means an isolated event for the assailants and that they had periodically practiced racist violence of a similar nature. Thus, in spite of the abundant evidence of the attack, the beating to which the victim was subjected and his resulting death, the assailants and the person who stabbed him were never prosecuted. This failure by the Bulgarian authorities was, the applicants argued, an unambiguous violation of Article 14 taken in conjunction with the procedural aspect of Articles 2 and 3 of the Convention. 113. Referring to the general situation of Roma in Bulgaria, the numerous incidents of racist attacks and the high rate of violence against them, as well as the specific facts in the present case, the applicants further claimed that the Bulgarian authorities should have investigated and prosecuted the racial discrimination aspect of the attack and should have brought charges reflecting the particular gravity of the racist violence. They argued that the authorities completely failed to do this and that nothing in the investigation addressed the racist motivation of the violence against their relative. The conduct of the prosecuting authorities therefore thwarted the course of justice and deprived them of an effective remedy against the discrimination suffered by the victim. B. Admissibility 114. The Court notes that this complaint is linked to the ones examined above (see paragraphs 77-106 above) and must therefore, likewise, be declared admissible. The Court does not find that the Government sufficiently substantiated their argument that the applicants should have exhausted the procedure under the Protection against Discrimination Act, as it does not consider it to have been proven that this procedure, introduced eight years after the attack and four years after the introduction of the application, would have been an effective remedy for their complaint under Article 14 of the Convention alleging that the authorities failed in their duty to investigate and prosecute a racially motivated violent offence. C. Merits 115. The Court reiterates that States have a general obligation under Article 2 of the Convention to conduct an effective investigation in cases of deprivation of life, which must be discharged without discrimination, as required by Article 14 of the Convention. Moreover, when investigating violent incidents State authorities have the additional duty to take all reasonable steps to unmask any racist motive and to establish whether or not ethnic hatred or prejudice may have played a role in the events. Failing to do so and treating racially induced violence and brutality on an equal footing with cases that have no racist overtones would be to turn a blind eye to the specific nature of acts that are particularly destructive of fundamental rights. A failure to make a distinction in the way in which situations that are essentially different are handled may constitute unjustified treatment irreconcilable with Article 14 of the Convention. Admittedly, proving racial motivation will often be extremely difficult in practice. The respondent State's obligation to investigate possible racist overtones to a violent act is an obligation to use best endeavours and not absolute; the authorities must do what is reasonable in the circumstances of the case (see Nachova and Others, cited above, § 160 ). 116. In the present case, the racist motives of the assailants in perpetrating the attack against the applicants'relative became known to the authorities at a very early stage of the investigation, when D.K. gave a statement to that affect on 19 April 1996 (see paragraph 13 above). The Court considers it completely unacceptable that, while aware that the attack was incited by racial hatred, the authorities did not expeditiously complete the preliminary investigation against the assailants and bring them to trial. On the contrary, they allowed the criminal proceedings to procrastinate and to remain at the investigation stage for more than eleven years. As a result, the statute of limitations expired in respect of the majority of the assailants. In addition, the Court observes that the authorities failed to also charge the assailants with any racially motivated offences. It notes in this respect the widespread prejudices and violence against Roma during the relevant period and the need to reassert continuously society's condemnation of racism and to maintain the confidence of minorities in the authorities'ability to protect them from the threat of racist violence (see Menson and Others (dec.), cited above ). 117. Thus, the Court finds that in the present case the authorities failed to make the required distinction from other, non-racially motivated offences, which constitutes unjustified treatment irreconcilable with Article 14 of the Convention. Consequently, it finds that there has been a violation of Article 14 taken in conjunction with the procedural aspect of Article 2 of the Convention. 118. Having regard to the above conclusion, the Court does not deem it necessary in the present case to make a separate finding under Article 14 taken in conjunction with the procedural aspect of Article 3 of the Convention (see paragraph 106 above). III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 119. The applicants complained under Article 6 of the Convention in respect of the excessive length of the criminal proceedings against the assailants and alleged that this denied them access to a court to claim damages from the perpetrators, in that a civil action for damages was dependent on the outcome and findings of the criminal proceedings. The relevant part of Article 6 § 1 of the Convention provides: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law...” 120. The Court notes that similar complaints were dismissed in the cases of Assenov and Others v. Bulgaria (judgment of 28 October 1998, Reports 1998 ‑ VIII, p. 3292, §§ 110 ‑ 13) and Toteva v. Bulgaria (dec.) (no. 42027/98, 3 April 2003). The present case does not disclose any material difference. In particular, had the applicants initiated a civil action against the assailants, the competent civil court would have accepted it for examination. It is true that the court would have, in all likelihood, stayed the proceedings if it found that the relevant facts involved criminal acts. However, the civil courts are not bound by a refusal or delay of the prosecuting authorities to investigate. In circumstances where – as here – the applicants did not bring a civil action, it is a pure speculation to consider that the civil proceedings would have remained stayed for such a period, so as to give rise to a de facto denial of justice, as claimed by the applicants. 121. It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 122. 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 123. The applicants claimed 40,000 euros (EUR) on behalf of the victim, on their own behalf and also on behalf of the first applicant's three daughters, sisters of the victim. The amount claimed was to compensate the violation of the victim's rights and the pain and suffering caused to all his close relatives, mother, sisters and brother, as a result of the ineffective, prolonged and eventually aborted investigation and prosecution of those responsible for his beating and death, the loss of the moral and financial support he would have provided to his family as well as the thwarted opportunity for his relatives to file a claim for damages under national law for more than nine years. The applicants claimed that under Article 41 of the Convention non-pecuniary damages should be awarded in full to anyone who suffered a violation of the rights under the Convention and that the Court had awarded the highest amounts in compensation for violations of the right to life. They further noted that the Court in its case - law had outlined a number of circumstances that should be taken into consideration in such cases, such as whether the behaviour of the authorities was particularly blameworthy or the consequent investigation particularly flawed, the age of the victim (see Anguelova, cited above, § 173) and also whether it had been demonstrated that the responding State had tolerated a wider practice of abuse of Convention rights (see Nachova and Others, cited above, § § 171-72 ). The applicants argued that in the present case there were several such factors that necessitated an increased award of damages, namely that their relative was the victim of a racist attack, beating and killing; that he was an innocent victim, randomly chosen because of the colour of his skin; that, in spite of the abundant evidence concerning the offence and the perpetrators, the authorities had chosen not to investigate and prosecute a blatantly racist crime; that such tacit approval of racism by the authorities was particularly blameworthy; and that the specific circumstances of the victim's death and the behaviour of the investigation and prosecution authorities should not be tolerated under any circumstances. Finally, the applicants claimed that the possibility for them to receive compensation from the assailants in the domestic courts was practically non- existent given the latest developments in the criminal proceedings, the expiration of the statute of limitation in respect of most of the perpetrators and the evidentiary difficulties of initiating a successful civil action for damages after so many years. 124. The Government stated that the applicants'claims were excessive, unsubstantiated and that they did not correspond to the size of awards made by the Court in previous similar cases. They referred to the judgment in the case of Nachova and Others ( cited above ) where the Court had awarded the relatives of the first victim EUR 25,000 jointly for pecuniary and non-pecuniary damage and the parents of the second victim EUR 22,000 jointly for pecuniary and non-pecuniary damage. The Government also referred to the case of Anguelova (cited above ) where the Court had awarded the applicant EUR 19,050 for non-pecuniary damage. They also noted that any compensation for damages should be made on an equitable basis and considered the applicants'claim to be arbitrarily determined. The Government challenged the possibility for the applicants to claim damages on behalf of the victim's sisters, as the latter had not been party to the proceedings before the Court, and considered that they should not be awarded any sums in compensation. They argued that his sisters could have joined the proceedings in their own right and, had they done so, then they could have filed a claim for damages, such as had been done by the relatives of the victims in the above cited cases. The Government disagreed with the applicants'argument that they had no opportunity to seek damages from the assailants at domestic level, and referred to the civil claim filed by the applicants and the sisters of the victim in April 2005 within the framework of the pending criminal proceedings. 125. In respect of pecuniary damage, the Court reiterates that there must be a causal link between the damage claimed by an applicant and the violation of the Convention and that this may, in the appropriate case, include compensation in respect of loss of earnings (see, amongst others, the Barberà, Messegué and Jabardo v. Spain (Article 50), judgment of 13 June 1994, Series A no. 285 ‑ C, pp. 57-58, §§ 16-20, and Çakıcı v. Turkey [GC], no. 23657/94, § 127, ECHR 1999 ‑ IV). The Court notes that in the present case private persons were responsible for the ill-treatment and death of the victim. Thus, although there is a direct link between his death and the claimed loss of financial support, the Government was not responsible for the assailants'actions and cannot therefore be held liable to compensate the applicants for the pecuniary damage suffered as a result. Accordingly, the Court rejects the applicants'claim for pecuniary damage. 126. In the context of assessing the claim for non-pecuniary damage, the Court notes that, in respect of just satisfaction claims, Rule 60 of the Rules of Court requires the respective party to be an applicant and to have filed a claim to that effect. Rule 60 provides : “1. An applicant who wishes to obtain an award of just satisfaction under Article 41 of the Convention... must make a specific claim to that effect. 2. The applicant must submit itemised particulars of all claims... 3. If the applicant fails to comply with the requirements set out in the preceding paragraphs the Chamber may reject the claims in whole or in part.” 127. Thus, the principle is that awards can only be made to persons who are applicants in the proceedings before the Court. 128. The Court notes, however, that awards have also previously been made to surviving spouses and children and, where appropriate, to applicants who were surviving parents or siblings. It has also previously awarded sums as regards the deceased where it has found that there had been arbitrary detention or torture before his disappearance or death, such sums to be held for the person's heirs (see, among others, Çakıcı [GC], cited above, § 130, and Akdeniz and Others v. Turkey, no. 23954/94, § 133, 31 May 2001). The Court recognizes that in those cases the balance of the awards represented compensation for the victim's own pain and suffering at the hands of the police or security forces as a result of substantive violations of Articles 2 and /or 3 of the Convention. The present case relates to the ill-treatment and death of the applicants'relative as a result of actions by private individuals. Accordingly, only the pain and suffering of the applicants as a result of events subsequent to their relative's death – for which the respondent State was responsible – are relevant when assessing the award to be made. 129. Separately, the Court notes that the victim's heirs were established soon after his death in 1996, and included his mother, brother and three sisters. The proceedings before the Court were initiated and maintained by his mother and brother, but that did not restrict, bar or hinder his three sisters from requesting to join the proceedings and claiming to be victims of the alleged violations in their own right. In so far as they failed to exercise their right to join the proceedings, the Court finds that they do not satisfy the requirements of Article 41 of the Convention and Rule 60 of the Rules of Court, namely to be applicants who claim to be an injured party and who have filed a valid claim for damages. 130. Accordingly, the Court, deciding on an equitable basis and having regard to awards in comparable cases (see Anguelova, cited above, § 173 and Nachova and Others, cited above, § § 171-72 ), finds it appropriate in the circumstances of the present case to award EUR 15,000 jointly to the two applicants, plus any tax that may be chargeable on that amount. B. Costs and expenses 131. The applicants claimed EUR 6,000 for 65 hours of legal work by their lawyer before the Court, at the hourly rate of EUR 80, and for 23 hours of travelling time, at the hourly rate of EUR 40, on matters relating to the case. They submitted an agreement on legal fees concluded with their lawyer and a timesheet. The applicants requested that the costs and expenses incurred should be paid directly to their lawyer, Mr Y. Grozev. 132. The Government challenged the timesheet presented by the applicants and the number of hours claimed to have been worked by the applicants'lawyer in the proceedings before the Court, which they considered excessive for the work performed. Concerning the travel expenses, they argued that it had not been proven that any such trips had even taken place because no tickets or receipts had been presented to the Court. In any event, they considered the rate of EUR 40 per hour for travelling time for the lawyer to be excessive. 133. The Court reiterates that, according to its case-law, an applicant is entitled to reimbursement of his or her 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. Noting the complexity of the case, the submissions of the applicants'lawyer and the other relevant factors, the Court considers it reasonable to award the sum of EUR 3, 5 00 in respect of costs and expenses, plus any tax that may be chargeable on that amount. C. Default interest 134. 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 procedural violation of Article 2 (right to life) of the Convention, finding that the Bulgarian authorities had failed in their obligation under Article 2 to effectively investigate the applicants’ relative’s death promptly, expeditiously and with the required vigour, considering the racial motives of the attack and the need to maintain the confidence of minority groups in the ability of the authorities to protect them from the threat of racist violence. Further, noting in particular the widespread prejudices and violence against Roma during the relevant period and the need to reassert continuously society’s condemnation of racism and to maintain the confidence of minorities in the authorities’ ability to protect them from the threat of racist violence, the Court found that the authorities had failed to make the required distinction from other, non-racially motivated offences, which constituted unjustified treatment irreconcilable with Article 14 (prohibition of discrimination) of the Convention. The Court therefore held that there had been a violation of Article 14 taken in conjunction with Article 2. |
609 | Wearing of religious symbols or clothing in the public space | II. RELEVANT DOMESTIC LAW A. Municipal by-laws 15. In Belgium the wearing of the full -face veil was first banned by municipal by-laws passed by a number of municipalities among which were the provisions being challenged in the instant case (see paragraph 10 above). B. The Law of 1 June 2011 16. A Law prohibiting the wearing of any clothing entirely or substantially concealing the face was enacted on 1 June 2011 and came into force on 23 July 2011. 17. The relevant provisions of the Law of 1 June 2011 are worded as follows : “ Art. 2. Article 563 bis, worded as follows, shall be inserted into the Criminal Code : Art. 563 bis. Unless otherwise provided by law, persons who appear in a place that is accessible to the public with their faces completely or partially covered or hidden, such as not to be identifiable, shall be liable to a fine of between fifteen and twenty-five euros [ read : between 120 and 200 euros] and imprisonment of between one and seven days, or to one of those penalties alone. However, paragraph 1 hereof shall not concern persons who are present in a place that is accessible to the public with their faces completely or partially covered or hidden, such as not to be unidentifiable, where this is provided for by employment regulations or by an administrative ordinance in connection with festive events .” 18. In judgment no. 145/2012 of 6 December 2012 the Constitutional Court dismissed applications for judicial review of the Law of 1 June 2011, whilst setting out an interpretative reservation in respect of the Law concerning places of worship. 19. With regard to the background to the Law and its aims, the Constitutional Court made the following observations : “ B.4.2. The authors of the bill [ which led to the enactment of the impugned Law ] sought to endorse a societal model where the individual took precedence over his or her philosophical, cultural or religious ties. Accordingly, they recommended a ban on wearing clothing designed to fully or substantially conceal one ’ s face in public places, stressing the fact that the ban was not based only on public-order considerations but more fundamentally on social considerations, which were crucial, in the view of the authors of the bill, to the notion of ‘ living together ’ in a society which sought to emancipate its members and protect the rights of each and every one of them (Doc. parl., Chamber, 2009-2010, DOC 52-2289/001, p. 5, and Doc. parl., Chamber, S.E. 2010, DOC 53-0219/001, p. 5).” 20. Regarding the public-safety and legal aim, the Constitutional Court found as follows : “In so far as anyone present in public thoroughfares or in a public place must be identifiable, wearing clothing which completely conceals the face poses obvious problems in terms of public safety. In order to ban conduct of that type, many municipalities have enacted by-laws with a view to banning the wearing of such clothing, while permitting exemptions from the rules at specific events. However, the court cannot but note that, in one and the same city, certain municipalities do not prescribe the same bans. Those differences in regime result in a form of untenable legal uncertainty for citizens and for the authorities responsible for punishing that type of conduct. The authors of the bill therefore recommend that the question be determined at federal level so that the same rule applies throughout the country (Doc. parl., Chamber, 2009-2010, DOC52-2289/001, pp.5-6, and Doc. parl., Chamber, S.E.20 10, DOC 53-0219/001, pp. 5-6).” 21. As to whether the ban on wearing the veil met a pressing social need and was proportionate to the legitimate aims pursued by the legislature, the Constitutional Court found as follows : “ B.17. It can be seen from the explanatory memorandum to the bill which became the Law at issue ... that the legislature sought to defend a societal model where the individual took precedence over his philosophical, cultural or religious ties, with a view to fostering integration for all and to ensuring that citizens shared a common heritage of fundamental values such as the right to life, the right to freedom of conscience, democracy, gender equality, or the principle of separation between Church and State. ... the legislative history shows that three aims were pursued: public safety, gender equality and a certain conception of ‘ living together ’ in society. ... B.21. The legislature further justified its intervention by a certain conception of ‘ living together ’ in a society based on fundamental values, which, in its view, derive therefrom. The individuality of every subject of law ( sujet de droit ) in a democratic society is inconceivable without his or her face, a fundamental element thereof, being visible. Taking into account the essential values that the legislature sought to defend, it was entitled to take the view that the creation of human relationships, being necessary for living together in society, was rendered impossible by the presence in the public sphere, which quintessentially concerned the community, of persons who concealed this fundamental element of their individuality. Whilst pluralism and democracy entail the freedom to display one ’ s beliefs, in particular by the wearing of religious symbols, the State must pay attention to the conditions in which such symbols are worn and to the potential consequences of wearing such symbols. To the extent that the concealment of the face has the consequence of depriving the subject of law, a member of society, of any possibility of individualisation by facial appearance, whereas such individualisation constitutes a fundamental condition related to its very essence, the ban on the wearing of such clothing in a public place, even though it may be the expression of a religious belief, meets a pressing social need in a democratic society. B.22. As to the dignity of women, here too the legislature was entitled to take the view that the fundamental values of a democratic society precluded the imposing of any obligation on women to conceal their face, under pressure from members of their family or their community, and therefore their deprivation, against their will, of their freedom of self-determination. B.23. However, ... the wearing of the full-face veil may correspond to the expression of a religious choice. That choice may be guided by various reasons with many symbolic meanings. Even where the wearing of the full-face veil is the result of a deliberate choice on the part of the woman, the principle of gender equality, which the legislature has rightly regarded as a fundamental value of democratic society, justifies the opposition by the State, in the public sphere, to the manifestation of a religious conviction by conduct that cannot be reconciled with this principle of gender equality. As the court has noted in point B.21, the wearing of a full-face veil deprives women – to whom this requirement is solely applicable – of a fundamental element of their individuality which is indispensable for living in society and for the establishment of social contacts. B.24. The court must further examine whether recourse to a criminal sanction to guarantee compliance with the prohibition imposed by the Law has no disproportionate effects in relation to the aims pursued. ... B.28 In so far as the individualisation of persons, of which the face is a fundamental element, constitutes an essential condition for the functioning of a democratic society, of which each member is a subject of law, the legislature was entitled to consider that the concealment of the face could endanger the functioning of society as thus conceived and, accordingly, should be punished by criminal sanctions. ... ” ... C. Other relevant provisions and situation in other countries ... 23. The relevant provisions appearing in other international instruments and the situation in other European countries are set out in the judgment S.A.S. v. France [GC] ( no. 43835/11, §§ 35-52, ECHR 2014 (extracts) ). THE LAW I. ALLEGED VIOLATION OF ARTICLES 8, 9 AND 10 OF THE CONVENTION, TAKEN SEPARATELY AND IN CONJUNCTION WITH ARTICLE 14 OF THE CONVENTION 24. The applicant complained of a violation of her right to respect for her private life, her right to freedom to manifest her religion or beliefs and her right to freedom of expression. She relied on Articles 8, 9 and 10 of the Convention, which read as follows: 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 9 “1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2. Freedom to manifest one ’ s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.” ... 25. She also complained of a violation of Article 14 of the Convention taken in conjunction with the above-cited provisions. Article 14 provides: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” ... B. Merits 1. The parties ’ submissions a) The applicant 27. The applicant challenged the submission that the ban in question satisfied the condition laid down in paragraph 2 of Articles 8 and 9 of the Convention of necessity in a democratic society in the interests of public safety, for the prevention of disorder, the protection of health or morals or the protection of the rights and freedoms of others. With regard to the aim of “living together” in a democratic society, it was the opposite reasoning – that of openness and tolerance – which should take precedence in a pluralist democratic society as was evidenced by the tolerance that there had always been of dress codes rejecting the living together principle. At best, it could be regarded as a praiseworthy political objective, but one that could not be achieved by some stigmatising by-laws that were contrary to the Convention. In her submission, the factors justifying the ban on safety grounds had been advanced exclusively with regard to the full-face veil, were non-existent and the real aim being pursued by the by-laws was the prohibition of the full-face veil in public places. She argued, lastly, that the issue of dignity and gender equality was irrelevant to justification on grounds of “ protection of the rights and freedoms of others ” since the exercise of the freedom and wishes of women themselves was hindered. 28. With regard, lastly, to the proportionality of the ban in terms of the aim pursued, the applicant complained that the Constitutional Court had, wrongly, endorsed the argument that the legislature was justified in promoting a societal model which disregarded the philosophical, cultural or religious beliefs of the individuals of which that society was composed, in breach of the principles of equality and freedom. Attributing to the Law of 1 June 2011 an objective of integration and “living together” created, in her view, a total reversal of values, where homogeneity prevailed over the right to difference, thus peremptorily giving preference to a conception of “living together” and democracy to the detriment of the individual liberties which were the basis thereof. The fact that certain Muslim States had voiced their objection to the wearing of the niqab was merely a reflection of the need to give substance to the reference to Islam in their Constitution. b) The Government 29. The Government based their defence on the Law of 1 June 2011 and the reasons for enacting it. They submitted that the legal ban on the full-face veil had been preceded by a more general debate on, inter alia, how the full-face veil had first appeared in Belgium. In that context it had transpired that the wearing of the full-face veil was not a religious precept laid down in the Koran and that it had, moreover, been banned in a number of Muslim countries on grounds that it was contrary to the spirit of Islam. That being said, the Constitutional Court, in a judgment delivered on 6 December 2012, on the Law of 1 June 2011 ( see paragraph 19 above) had transcended the theological and intellectual debate surrounding the issue and highlighted three fundamental reasons justifying the Law, namely, that the wearing of “clothing fully or substantially concealing the face” posed a safety issue, was an obstacle to women ’ s rights to equality and dignity and, more fundamentally, undermined the very essence of the principle of “living together”. 30. The Government took the view that no one was entitled to claim, on the basis of individual or religious freedom, the power to decide when and in what circumstances they would agree to uncover their face in a public place. The assessment of public-safety requirements necessarily had to be delegated to the public authorities. Reference therefore had to be made to the conditions laid down in the by-laws, as in the present case, or in the subsequent Law, in order to determine the circumstances in which a face could or could not be concealed. 31. The Government did not dispute that the issue of women ’ s rights to equality and dignity had been raised by both parties and that the wearing of the full-face veil was not necessarily the expression of subservience to men but could be the exercise of the right to choose one ’ s clothing so as to inspire dignity. However, whilst the concept of dignity of clothing could be subjective, the more multicultural a society and the greater the co-existence of different forms of religious beliefs and expressions of cultural traditions, the more individuals had to refrain from ostensibly displaying those beliefs and traditions in public. No one could dispute the fact that dress codes were the product of societal consensus and the result of a compromise between individual freedoms and codes of interaction within society, and that those who wore clothing concealing their face were signaling to the majority that they did not wish to take an active part in society, whereas one of the values forming the basis on which a democratic society functioned was the possibility of an active exchange between individuals. 32. The Government then pointed out that the legislature had sought to defend a societal model in which the individual outweighed his or her philosophical, cultural or religious attachments so as to encourage full integration and enable citizens to share a common heritage of fundamental values such as democracy, gender equality and the separation of Church and State. As indicated by the Constitutional Court, where the consequence of concealing the face was to prevent a person ’ s facial individualisation, even though such individualisation was a fundamental condition associated with his or her very essence, the prohibition on wearing clothing concealing the face in places accessible to the public, even if this were the expression of a religious belief, met a compelling social need in a democratic society. 2. Observations of the third-party interveners a) The non-governmental organisation Liberty 33. The third-party intervener observed that the ban sought explicitly to prohibit the wearing of the burqa and that this led to stigmatisation and potential discrimination against Muslim women. Whilst pluralism, tolerance and broadmindedness ought to be features of a democratic society, the Belgian legislature had chosen to increase the risks already affecting Muslims as a result of an Islamophobic climate. 34. Whatever the aims subsequently proclaimed by the Belgian legislature, it was clear that the municipal by-laws in question had introduced the ban on wearing the veil in order to promote gender equality. The by-laws had first been drafted at the request of the Verviers Women ’ s Advisory League in 2008. It was paradoxical that the idea of gender equality ran counter to the profoundly personal choice of women who decided to wear the veil, with the attendant risk that imposing legal sanctions exacerbated the inequality that was supposed to be addressed. Women who were forced to wear the veil were thus condemned to remain at home. 35. With regard to the legitimate aim of preserving the concept of “living together”, the third-party intervener asked the Court to reconsider its position in the light of the rise of Islamophobia. In its submission, the ban on covering one ’ s face in public and the accompanying political debate stigmatised the visible adherence to Islam and thus reinforced negative stereotypes with regard to Muslims. Like the minority of judges in the case of S.A.S. v. France [GC], ( no. 43835/11, §§ 35-52, ECHR 2014 (extracts)), the third-party intervener considered that far from seeking to ensure tolerance between the vast majority and the small minority, the Belgian legislature had merely prohibited what was seen as a cause of tension. It also considered that the blanket ban could be interpreted as a sign of selective pluralism and limited tolerance. 36. Furthermore, unlike in France, where the principle of interaction between individuals had been found by the Court to be essential to the concept of fraternity, Belgium did not have the same constitutional commitment to secularism. 37. Lastly, the third-party intervener submitted that, in any event, the ban under the by-laws in question was formulated in very broad terms in that it was applicable “at all times and in all public places” and was disproportionate. b) The Human Rights Centre of Ghent University 38. The intervening party first commented on the differences between the situation in Belgium, as reflected in the Law of 1 June 2011, and in France. 39. Firstly, the Belgian legislature had not prescribed penalties against persons who forced others to wear the full-face veil and penalised only the person wearing the veil, that is, the victim. That difference was paradoxical given the objective accepted in Belgium and recognised in the above-mentioned judgment of the Constitutional Court ( paragraph B.22, see paragraph 21 above ) of banning the veil in order to protect women from cultural oppression by men and safeguard their dignity. 40. Secondly, in Belgium, the wearing of the veil had first been banned by municipal by-laws. Certain provisions of these, which had been drafted at the end of the nineteenth century, had targeted any manner of concealing the face and had subsequently been interpreted as also applicable to the veil. Other provisions dated back to the early years of the present century and had been drafted specifically to proscribe the wearing of the veil. Application of the by-laws had, moreover, given rise to conflicting case-law. Today the general ban under the Law coexisted with the municipal by-laws, the former serving as political and legal “cover” for the latter. 41. Thirdly, the process preceding the enactment of the Belgian Law banning the wearing of the veil had admittedly been longer but had been far less intricate than in France. The parliamentary debates had been speedy, the request to organise a hearing of experts and for an opinion from the Legislation Section of the Conseil d ’ Etat had been rejected, the bill had been discussed only in the House of Representatives, and not referred to in the Senate. 42. That lack of “democratic” quality of the legislative process in Belgium should induce the Court to question the extent of the restraint exercised by it in reviewing Convention compliance, expressed in the judgment S.A.S. v. France cited above (§§ 154- 55), when assessing the situation in Belgium having regard to the requirements of the Convention and, accordingly, the margin of appreciation that has to be recognised in the present case. 43. The intervening party then provided the results of a survey carried out in 2010-2011 among 27 women wearing the full-face veil, in order to put the effect of the “living together” aim pursued by the ban on wearing the veil into perspective. Many of them said that, far from being a socially inhibiting factor, wearing the veil allowed them, on the contrary, to take part in numerous activities as mothers and wives which they would have felt uncomfortable engaging in otherwise. On the other hand, a number of others referred to the obstacle to communication created by wearing the veil in the reaction of others, which was either one of fear or a failure to address them directly. The survey showed that the Belgian legislature had made the incorrect assumption that women wearing the full-face veil were unable or unwilling to interact with other members of society. 44. The intervening party also submitted that the ban in question should be viewed in a wider societal context in which there was a substantial degree of hostility towards Muslims. In that sort of context hostile stereotypes could hamper the debate and it became difficult to distinguish between measures taken in good faith in the general interest and harassment of unpopular minorities designed to pander to the intolerant sentiments of a majority. 45. Were the Court to continue relying on the legitimate “living together” aim, it should be shown, in the intervening party ’ s submission, that the general-interest objective pursued was actually at stake. The Court would have to ascertain whether the ban was in actual fact capable of remedying the problem identified and whether the adoption of alternative less restrictive measures had been sufficiently taken into consideration. 3. The Court ’ s assessment 46. The Court finds that although the instant case was introduced after the entry into force of the Law of 1 June 2011 banning the wearing of any clothing fully or substantially covering the face, it concerns a provision of a by-law enacted prior to that Law : Article 113 bis of the consolidated municipal by-laws of the Vesdre police district. Nevertheless, it can be seen from the application and from the observations submitted to the Court that the arguments refer almost exclusively to the Law of 1 June 2011 and to the analysis thereof by the Constitutional Court (see paragraph 16 above). As the application concerns an issue posed in terms which very closely resemble those surrounding the enactment of the French Law of 11 October 2010 prohibiting the concealment of one ’ s face in public places, the Court will largely refer to the judgment S.A.S. v. France, cited above, which examined the French ban in the light of the relevant provisions of the Convention. a) Alleged violation of Articles 8 and 9 of the Convention 47. The Court observed that the ban on wearing in public places clothing designed to conceal the face raised questions in terms of the right to respect for private life of women who wished to wear the full-face veil for reasons related to their beliefs, and in terms of their freedom to manifest those beliefs. That being said, in so far as that ban is criticised by individuals who, like the applicant, complain that they are consequently prevented from wearing in public places clothing that the practice of their religion requires them to wear, it mainly raises an issue with regard to the freedom guaranteed by Article 9 of the Convention to manifest one ’ s religion or beliefs (see S.A.S. v. France, cited above, §§ 106-09). i. Regarding the quality of law 48. The Court notes that the applicant did not dispute that the consolidated municipal by-laws of the Vesdre police district had the quality of “law”. The ban can therefore be deemed to have a “legal” basis meeting the criteria established in the Court ’ s case-law concerning paragraph 2 of Articles 8 and 9 of the Convention. ii. Regarding the legitimate aim pursued 49. The Court notes in the light of its examination of the observations submitted to it that the parties assumed that the ban under the municipal by-laws in question pursued the same aims as those of the Law enacted subsequently, namely public safety, gender equality and a certain conception of “living together” in society. 50. The intervening organisation Liberty concluded, however, from the fact that the by-laws had been drafted in 2008 following a request by the Verviers Women ’ s Advisory League that the aim of ensuring gender equality had been the overriding factor (see paragraph 34 above). The Court considers that it has no evidence on which to conclude that this aim carried greater weight than the other above-mentioned aims. 51. The Court observes that the above-mentioned aims are similar to those retained by the French legislature and examined in the judgment S.A.S. v. France. In that judgment it found that the concern to ensure the observance of the minimum requirements of life in society could be regarded as an element of the “protection of the rights and freedoms of others” and that the impugned ban could be regarded as justified in its principle solely in so far as it sought to guarantee the conditions of “living together” (§§ 140-42). It considers that the same approach applies in the present case. iii. Necessity of the ban in a democratic society 52. The Court observes, on the basis of the legislative history of the Law of 1 June 2011 and the analysis thereof by the Constitutional Court (see paragraphs 19-20 above), that the terms of the issue as debated in Belgium very closely resemble those surrounding the enactment of the above-mentioned French ban examined by the Court in the judgment S.A.S. v. France. 53. The applicant asked the Court to change the approach taken in the S.A.S. v. France judgment when assessing the proportionality of the ban on the full-face veil. The intervening organisations submitted that the assessment of that issue had to take account of the special features of Belgian society and of the legislative process preceding the ban in Belgium. 54. As the Court clearly stated in S.A.S. v. France, it must stress the fundamentally subsidiary role of the Convention system and reiterate 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, the State authorities are in principle better placed than an international court to evaluate local needs and conditions (see Dubská and Krejzová v. the Czech Republic [GC], nos. 28859/11 and 28473/12, § 175, 15 November 2016). In matters of general policy, on which opinions within a democratic society may reasonably differ widely, the role of the domestic policy-maker is to be given special weight. With regard to 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. 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 S.A.S. v. France, cited above, § 129). 55. The Court is fully aware that a State which, like Belgium, enters into a legislative process of this kind runs the risk of contributing to the consolidation of the stereotypes which affect certain categories of the population and of encouraging the expression of intolerance, and that the impugned ban, even if it is not based on the religious connotation of the garment in question, mainly affects Muslim women who wish to wear the full-face veil ( see S.A.S. v. France, cited above, § 149). Nor is it unaware that by imposing a ban on wearing in public places a garment designed to conceal the face the respondent State restricts to a certain extent the reach of pluralism, since the ban prevents certain women from expressing their personality and their beliefs by wearing the full-face veil in public (see S.A.S. v. France, cited above, § 149). 56. However, the respondent State, in enacting the provisions in question, sought to address a practice which it deemed incompatible, in Belgian society, with the ground rules of social communication and more broadly the establishment of human relations that are essential for living together (see the judgment of the Constitutional Court of 6 December 2012, paragraph B.21, cited in paragraph 21 above ). In doing so, it sought to protect a form of interaction between individuals that was essential, in the respondent State ’ s view, to the functioning of a democratic society ( see the above-cited judgment, paragraph B.28, cited in paragraph 21 above ). From this perspective, and similarly to the situation which previously arose in France ( see S.A.S. v. France, cited above, § 153), it seems that the question whether or not it should be permitted to wear the full-face veil in public places in Belgium constitutes a choice of society. 57. The Court points out, as it emphasised in S.A.S. v. France ( cited above, §§ 153-55), that in such cases it has to show restraint in its scrutiny of Convention compliance, in this case in assessing a decision taken democratically within Belgian society. The allegation by the intervening organisations that the democratic process that had led to the ban on wearing the full-face veil in Belgium had not taken full account of what was at stake cannot carry weight in the present case regarding the assessment of the situation. Besides the fact that this criticism does not directly concern the by-laws in question but refers to the Law of 1 June 2011, the Court notes, obiter dictum, that the decision-making process leading up to the impugned ban took several years and was accompanied by a wide-ranging debate within the House of Representatives and by a detailed and thorough examination by the Constitutional Court of all the interests involved. 58. While it is true that the scope of the ban is broad, because all places accessible to the public are concerned, the contested provisions do not affect the freedom to wear in public any garment or item of clothing – with or without a religious connotation – which does not have the effect of concealing the face (see S.A.S. v. France, cited above, § 151). 59. The Court observes, lastly, that there is still no consensus within the member States of the Council of Europe as to whether or not there should be a blanket ban on the wearing of the full-face veil in public places, which justifies, in the Court ’ s opinion, affording the respondent State a very wide margin of appreciation (see S.A.S. v. France, cited above, § 156). 60. Consequently, having regard in particular to the breadth of the margin of appreciation enjoyed by the respondent State in the present case, the Court concludes that the ban imposed by the consolidated by-laws of the Vesdre police district can be regarded as proportionate to the aim pursued, namely the preservation of the conditions of “living together” as an element of the “protection of the rights and freedoms of others”. 61. The impugned limitation can thus be regarded as “necessary in a democratic society”. This conclusion holds true with respect both to Article 8 of the Convention and to Article 9. 62. Accordingly, there has been no violation either of Article 8 or of Article 9 of the Convention. b) Alleged violation of Article 14 taken together with Article 8 or Article 9 of the Convention 63. The applicant complained of indirect discrimination. She observed in this connection that, despite the general terms in which the by-laws in question were expressed, as a Muslim woman who for religious reasons wished to wear the full-face veil in public, she belonged to a category of individuals who were particularly exposed to the ban in question and to the penalties for which it provided. That ban was much less restrictive for other people living or passing through Dison who were not Muslims and in any event did not affect the exercise by them of fundamental liberties. 64. The Government submitted that the by-laws in question were not discriminatory, as they did not, any more than French law, specifically target the full-face veil and applied to any person who wore an item concealing the face in public, whether a man or a woman, and whether for religious or other reasons. 65. The Court reiterates that a general policy or measure which has disproportionate prejudicial effects on a group of individuals can be regarded as discriminatory even if it does not specifically target the group and there is no discriminatory intent. This is only the case, however, if such policy or measure 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 achieved (see S.A.S. v. France, cited above, § 161). 66. In the instant case, whilst it may be true that the ban imposed by the by-laws has more restrictive consequences for the exercise by certain Muslim women of some of their fundamental liberties, the measure has an objective and reasonable justification for the same reasons as those which the Court has set out previously (see paragraphs 52-62; compare S.A.S. v. France, cited above, § 161). 67. Accordingly, there has been no violation of Article 14 of the Convention taken in conjunction with Articles 8 and 9. c) Alleged violation of Article 10, taken separately and together with Article 14 of the Convention 68. The Court is of the view that no issue arises under Article 10 of the Convention, taken separately or together with Article 14 of the Convention, that is separate from those that it has examined under Articles 8 and 9 of the Convention, taken separately and together with Article 14 of the Convention. ... | The Court held that there had been no violation of Articles 8 (right to respect for private and family life) and 9 (right to freedom of thought, conscience and religion) of the Convention and no violation of Article 14 (prohibition of discrimination) of the Convention taken together with Articles 8 and 9. The Court found in particular that the ban imposed by the joint by-law of municipalities in the Vesdre police area could be regarded as proportionate to the aim pursued, namely the preservation of the conditions of “living together” as an element of the protection of the rights and freedoms of others. It therefore held that the contested restriction could be regarded as necessary in a democratic society, and that – similarly to the situation which had previously arisen in France (see above, S.A.S. v. France) – the question whether or not it should be permitted to wear the full-face veil in public places in Belgium constituted a choice of society. The Court held however that there had been a violation of Article 6 § 1 (right to a fair trial) of the Convention in this case. It found in this respect that the decision by the Conseil d’État to declare the applicant’s application inadmissible on the ground that it was based only on Article 113bis of the by-law, without reference to Article 113, had been excessively formalistic, and that the applicant’s access to the Conseil d’État had been limited to such an extent that it had upset the fair balance that ought to be struck between, on the one hand, the legitimate concern to ensure that the formal procedure for appealing to courts was complied with and, on the other, the right of access to the courts. The Court noted that the applicant’s arguments on the merits had been set out in a substantiated and structured manner and were of particular significance. |
1,053 | Pensions | II. RELEVANT DOMESTIC LAW AND PRACTICE A. The General Social Security Act 17. The basis of the Austrian social security system is laid down in two laws: the General Social Security Act ( Allgemeines Sozialversicherungsgesetz ) and the Unemployment Insurance Act ( Arbeitslosenversicherungsgesetz ). Austrian social security law is based on the contributory principle. 1. General rules 18. The General Social Security Act encompasses health and accident insurance and old-age pension. 19. Section 4 of the General Social Security Act regulates compulsory affiliation to the social security system. Pursuant to section 4(1)(1), employees are affiliated to the health and accident insurance scheme and to the old-age pension scheme. Section 4(2) defines an employee as any person working in consideration of remuneration in a relationship of personal and economic dependency. A further condition for compulsory affiliation is that the salary exceeds the marginal earnings threshold ( Geringfügigkeits-grenze ). At current levels, this amount is set at EUR 366.33 per month (section 5(2)). 20. For an employee affiliated to the social security system, compulsory contributions have to be paid in part by the employer and in part by the employee. 21. Section 17(1) provides that persons who are no longer covered by compulsory affiliation to the social security system may continue to pay voluntary contributions ( freiwillige Weiterversicherung ) if they have accumulated at least twelve insurance months out of the previous twenty ‑ four months within the system or at least three insurance months during each of the previous five years. Contributions can be reduced within certain limits if the economic circumstances of the person concerned justify such a reduction. 22. Entitlement to an old-age pension arises when a person who has reached pensionable age has accumulated a sufficient number of insurance months, namely a minimum of 180 months or, in the case of an early retirement pension, 240 months. When calculating the number of insurance months, certain periods during which no gainful activity has been pursued, and thus no contributions were made, are nevertheless taken into account as substitute periods ( Ersatzzeiten ), for instance periods of child-rearing, military service or unemployment. 23. The amount of an old-age pension depends mainly on the number of insurance months and the level of contributions paid. If the pension thus calculated does not reach a certain minimum level, which at current rates is EUR 783.99 per month for a single person and EUR 1,175.45 for a couple, a supplementary payment ( Ausgleichszulage ) is added in order to reach the minimum level. 2. Position of prisoners 24. During a prison term exceeding one month, entitlements to health, accident and pension insurance are suspended (section 78 of the General Social Security Act). The livelihood of prisoners is to be provided by the prison authorities. Likewise, their health care and care in case of an accident have to be provided for by the State in accordance with the Execution of Sentences Act (see paragraphs 41 and 44 below). 25. As a matter of principle, working prisoners are not affiliated to the general social insurance system. According to the Supreme Court’s case-law, prisoners performing work are not treated as employees within the meaning of section 4(2) of the General Social Security Act. 26. In a judgment of 27 February 1990 (no. 10 ObS 66/90), the Supreme Court examined an appeal by a former prisoner against a decision refusing him an invalidity pension on the ground that he had not accumulated the requisite number of insurance months. The Supreme Court ruled as follows: “According to the unanimous legal opinion of the competent Federal Ministry ( Collection of Publications in Social Insurance Matters, SVSlg 19.570), the Administrative Court (2 February 1972, 782/71 and 62/72, VwSlgNF 8162 = SVSlg 21.171) and the Vienna Court of Appeal (SVSlg 8.868, 21.172, 26.918, 30.930 and 32.418), this work, which is performed on the basis of a statutory rather than a voluntarily accepted duty to work, does not fall within the scope of the compulsory insurance scheme. Legal commentators also favour the interpretation that social insurance law, like labour law, requires that employment contracts be established voluntarily. Services rendered compulsorily under public law are not based on any service contract. Accordingly, work performed in the context of execution of a sentence cannot be subsumed within section 4(2) of the General Social Security Act (see Krejci-Marhold in Tomandl, SV-System 3. ErgLfg 46; MGA ASVG 49, ErgLfg 125; Krejci in Rummel, ABGB § 1151 Rz 16). In its judgment of 26 November 1971 (B 128/71, VfSlg 6582 = SVSlg 21.170), the Constitutional Court held that the decision of the legislature that work performed in the context of execution of a prison sentence did not fall within the social insurance scheme – because the requisite voluntary acceptance of a specific duty to work required in order to make out a contract of employment necessitating the payment of social insurance contributions was absent – did not infringe the principle of equal treatment. ... The medical care due to prisoners in accordance with sections 66 et seq. of the Execution of Sentences Act and the benefits due to them, in accordance with sections 76 et seq. of that Act, after work-related accidents or illnesses within the meaning of section 76(2-4) of that Act, provide to this category of persons a statutory health and accident insurance scheme adapted to the prison context. The fact that prisoners also, in the context of their duty to work – other than, for example, in the context of an employer-employee relationship – are not covered by compulsory insurance under the statutory pension scheme is justifiable on grounds of the above-mentioned substantive differences in relationship and accordingly – as held by the Constitutional Court in its judgment – does not infringe the principle of equal treatment. Periods spent in pre-trial detention or serving a prison sentence or in preventive detention will, in accordance with the General Social Security Act, only be regarded as compulsory contributory periods if the custodial measures have been imposed either on political grounds – other than national socialist activity – or on religious grounds or on grounds of descent (section 500 and section 502(1)) or if an Austrian court (in accordance with the Compensation (Criminal Proceedings) Act) has given a binding decision in respect of the periods of detention recognising a claim for damages for the detention or conviction (section 506a). Such periods of time, regarded as valid compulsory contributory periods, are to be regarded in the first-mentioned case as not requiring the payment of contributions (section 502(1), third sentence); in the second-mentioned case, the Federal State shall pay the corresponding contributions to the relevant insurance institution (section 506a, second sentence). The purpose in both cases is to compensate for the disadvantages incurred under social insurance law that have arisen on socially acceptable grounds rather than deprivation of liberty on grounds of guilty conduct. An extension of these exceptional provisions to time served in detention on grounds of culpable conduct would be contrary to the principle of equal treatment. Recognition of such periods of time as substitute periods would also be contrary to the principle of equal treatment, for similar reasons. ... Prisoners to whom the above-mentioned exceptions under section 502(1) and section 506a do not apply shall not thereby accumulate, in the context of their duty to work, either contributory periods under the compulsory insurance scheme or substitute periods. They are not, however, prevented by the execution of the sentence from continuing to make contributions to the old-age pension insurance scheme under section 17 and accumulating contributory periods through the payment of voluntary contributions, whereby continued insurance, at the request of the contributor, as far as this appears justified on the basis of his or her economic situation, shall be permitted, in accordance with section 76a(4), at a lower contribution level than the one provided for in subsections (1-3) of that provision. In accordance with section 75(3) of the Execution of Sentences Act, prisoners are to be informed of the possibilities and advantages of, inter alia, optional continued insurance, and they are also permitted to use funds for the payment of contributions to the social insurance scheme which are not otherwise available to them during execution of their sentence. By virtue of the very flexible continued insurance (see section 17(7-8)) – particularly in respect of the beginning, end and determination of the contributory months – a prisoner can also accumulate further contributory months in order to make up the qualifying period and/or obtain a higher pensions increment. In this connection, the fact should not be overlooked that if one were to proceed on the basis that a prisoner is covered under the invalidity and old-age pension insurance scheme in respect of work done during the execution of the sentence, contributions would accordingly have to be made for the relevant periods. Other than under section 506a, according to which the Federal State has to pay the contributions corresponding to these contributory periods (as part of the criminal compensation scheme) to the relevant insurance institution, a State contribution would not be reasonable here. ... It would not be reasonable in such cases to expect the community of insured persons to accept that periods for which no contributions have been made should give rise to pension entitlements; prisoners would have to make such contributions, so the position would not be essentially different from optional insurance. Accordingly, if the legislature has decided that work done in the context of a prisoner’s duty to work cannot fundamentally give rise to compulsory contributory periods or substitute periods and, in the light of that, has made provision only for the above-mentioned exceptions, that decision is based on objective considerations. Accordingly, the Supreme Court has no doubts regarding the constitutionality of the statutory provisions applicable to the present case.” 27. In a judgment of 16 March 1999 (no. 10 ObS 52/99s) the Supreme Court confirmed its previous judgment. 28. For the purpose of calculating entitlement to an old-age pension, periods spent in prison are only taken into consideration in specific circumstances defined in the General Social Security Act. For instance, periods spent in prison for which compensation has been granted under the Compensation (Criminal Proceedings) Act ( Strafrechtliches Entschädigungsgesetz ) are counted as substitute periods. B. The Unemployment Insurance Act and relevant practice 29. Employees are also affiliated to the unemployment insurance scheme. Compulsory contributions have to be paid in part by the employer and in part by the employee. 30. Since the 1993 amendment to the Unemployment Insurance Act, prisoners who perform work in accordance with section 44(1) of the Execution of Sentences Act are affiliated to the unemployment insurance scheme pursuant to section 66a of the Unemployment Insurance Act. The employee’s part of the contributions is to be paid from the prisoner’s remuneration, if the remuneration exceeds the marginal earnings threshold, while the employer’s part is to be paid by the State, through the Ministry of Justice. The amendment came into force on 1 January 1994. 31. As regards the amendment to the law, which formed part of a broader reform of the system of execution of sentences, the Parliamentary Judicial Committee ( Justizausschuß ) considered the affiliation of working prisoners to the unemployment insurance scheme to constitute a first step towards their full integration into the social security system. The Judicial Committee underlined that affiliating working prisoners to the unemployment insurance scheme was an important step towards increasing their chances of reintegration into society and limiting the prospect of recidivism (see p. 1253 of the annex to the minutes of the National Council ( Beilagen zu den Stenographischen Protokollen des Nationalrates, XVIII.GP). 32. Entitlements under the Unemployment Insurance Act include access to training courses, job-search facilities, and payment of unemployment benefits (which, to a certain extent, are related to previous salary) for a certain period. Upon the expiry of unemployment benefits, the insured person is entitled to payment of emergency relief, which is designed to provide a minimum amount of subsistence. Emergency relief will continue to be paid after a person has reached pensionable age if no entitlement to a pension is granted. 33. At the hearing, the Government provided the following information on the percentage of working prisoners and prisoners receiving unemployment benefits following their release. (a) In 2009, 12,460 persons were detained, of whom 8,903 (approximately 71%) were working and thus covered by unemployment insurance. Only 2,490 of these working prisoners actually paid contributions as they earned more than the required minimum level, and the others did not have to pay contributions. (b) Between 1 January and 30 June 2010, 9,477 persons were detained, of whom 6,791 (approximately 71%) were working and thus covered by unemployment insurance. Only 1,879 of these working prisoners actually paid contributions as they earned more than the required minimum level per month, and the others did not have to pay contributions. (c) Between 1 January 2009 and 30 June 2010, 2,086 persons qualified to receive unemployment benefits on account of the fact that they were included in the unemployment insurance scheme during their prison term; 1,898 of them applied for unemployment benefits upon their release, receiving an average benefit of EUR 21.09 per day (the general average being EUR 26.90 per day). C. Social assistance 34. Social security is complemented by means-tested social assistance. The latter is designed to provide persons who do not have the necessary means (personal means or entitlements from old-age pension insurance or unemployment insurance) with a minimum income in order to meet their basic needs. 35. On 1 September 2010 a new system, namely the means-tested minimum income scheme ( bedarfsorientierte Mindestsicherung ), came into force, replacing social assistance. It guarantees a minimum income to all persons who are willing and able to work or who are over 65 years old and do not have other means of subsistence. The amount is aligned with the minimum pension. D. The Execution of Sentences Act and relevant practice 36. Pursuant to section 44(1) of the Execution of Sentences Act ( Strafvollzugsgesetz ), any prisoners who are fit to work are obliged to perform work assigned to them. 37. Section 45(1) of the Act obliges the prison authorities to provide each prisoner with useful work. Section 45(2) specifies the different kinds of work which may be assigned to prisoners. They include, inter alia, tasks to be carried out within the prison, work for public authorities, work for charities, and work for private employers. 38. Under section 46(3), the prison authorities may conclude contracts with private enterprises as regards prisoners’ work. 39. Pursuant to section 51, the Federal State ( der Bund ) receives the proceeds of prisoners’ work. 40. Prisoners who perform their work satisfactorily have a right to remuneration. The amounts of remuneration – per hour and type of work – are fixed in section 52(1). At current rates, they are as follows: (a) for light unskilled work EUR 5.00 (b) for heavy unskilled work EUR 5.63 (c) for manual work EUR 6.26 (d) for skilled work EUR 6.88 (e) for work performed by a skilled worker EUR 7.50 41. The prison authorities have to provide for the livelihood of prisoners (section 31). 42. Pursuant to section 32 of the Act, all prisoners have to contribute to the costs of the execution of their sentence unless they fall within the scope of certain exceptions. If the prisoner works, the contribution amounts to 75% of his or her remuneration. It is deducted automatically from the remuneration. 43. Moreover, the employee’s part of the contribution to the unemployment insurance scheme is deducted from the prisoner’s remuneration. The remainder of the prisoner’s remuneration is used as follows: half of it is given to the prisoner as “pocket money” and the other half is kept as savings which the prisoner receives upon release (section 54). 44. Health and accident care for prisoners is to be provided by the prison authorities pursuant to sections 66 et seq. and 76 et seq. of the Execution of Sentences Act. In essence, the entitlement to health and accident care corresponds to the entitlement under the General Social Security Act. 45. If prisoners refuse the work assigned to them, this constitutes an offence under section 107(1)(7) of the Execution of Sentences Act. The penalties set out in section 109 range from a reprimand, or a reduction or withdrawal of certain rights (for instance, the right to use “pocket money”, to watch television, to send and receive correspondence or telephone calls), to a fine or house arrest (solitary confinement). 46. According to the information provided by the Government, more than 70% of prisoners in Austria are currently working. Owing to the requirements of prison routine, the average working day is approximately six hours. However, time spent by a prisoner undergoing therapeutic or social treatment is regarded and remunerated as working time up to a maximum of five hours per week. III. RELEVANT INTERNATIONAL MATERIALS A. United Nations instruments 1. The Forced Labour Convention (No. 29) of the International Labour Organization 47. The Forced Labour Convention (No. 29) (“ILO Convention No. 29”) was adopted on 28 June 1930 by the General Conference of the International Labour Organization (ILO) and came into force on 1 May 1932. The relevant parts of Article 2 provide as follows: “1. For the purposes of this Convention the term forced or compulsory labour shall mean all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily. 2. Nevertheless, for the purposes of this Convention, the term forced or compulsory labour shall not include: ... (c) any work or service exacted from any person as a consequence of a conviction in a court of law, provided that the said work or service is carried out under the supervision and control of a public authority and that the said person is not hired to or placed at the disposal of private individuals, companies or associations; ...” The International Labour Conference (the annual meeting of member States of the ILO) at its ninety-sixth session in 2007, carried out a general survey concerning ILO Convention No. 29 based on a report of the Committee of Experts on the Application of Conventions and Recommendations (“the Committee”). The report dealt, inter alia, with the question of prison work for private enterprises. Noting that prison work for private employers was prohibited by Article 2 § 2 (c) of ILO Convention No. 29, the Committee found that there might be conditions in which, notwithstanding their captive circumstances, prisoners could be considered to have offered themselves voluntarily and without the menace of any penalty for work with a private employer. In this connection, apart from the formal written consent of the prisoner, conditions approximating a free labour relationship (in terms of wage levels, social security and occupational safety and health) were regarded to be the most reliable indicator of the voluntariness of labour. If such conditions were met, prison work for private enterprises was considered not to come under the definition of forced labour provided in Article 2 § 1 and, consequently, was considered to fall outside the scope of ILO Convention No. 29 (paragraphs 59-60 and 114-16 of the Committee’s report). 2. The International Covenant on Civil and Political Rights 48. The International Covenant on Civil and Political Rights was adopted on 16 December 1966 by United Nations General Assembly Resolution 2200A (XXI) and came into force on 23 March 1976. The relevant parts of Article 8 read as follows: “3. (a) No one shall be required to perform forced or compulsory labour; (b) Paragraph 3 (a) shall not be held to preclude, in countries where imprisonment with hard labour may be imposed as a punishment for a crime, the performance of hard labour in pursuance of a sentence to such punishment by a competent court; (c) For the purpose of this paragraph the term ‘forced or compulsory labour’ shall not include: (i) Any work or service, not referred to in subparagraph (b), normally required of a person who is under detention in consequence of a lawful order of a court, or of a person during conditional release from such detention; ...” B. Council of Europe materials 1. The European Prison Rules 49. The European Prison Rules are recommendations of the Committee of Ministers to member States of the Council of Europe as to the minimum standards to be applied in prisons. States are encouraged to be guided in legislation and policies by the Rules and to ensure wide dissemination of the Rules to their judicial authorities as well as to prison staff and inmates. (a) The 1987 European Prison Rules 50. The 1987 European Prison Rules (Recommendation No. R (87) 3 – “the 1987 Rules”) were adopted by the Committee of Ministers of the Council of Europe on 12 February 1987. 51. In Part I, the 1987 Rules contained a number of basic principles, including the following: “1. The deprivation of liberty shall be effected in material and moral conditions which ensure respect for human dignity and are in conformity with these rules. ... 3. The purposes of the treatment of persons in custody shall be such as to sustain their health and self-respect and, so far as the length of sentence permits, to develop their sense of responsibility and encourage those attitudes and skills that will assist them to return to society with the best chance of leading law-abiding and self-supporting lives after their release. ...” 52. In Part IV, under the heading “Treatment objectives and regimes”, they contained the following rules: “64. Imprisonment is by the deprivation of liberty a punishment in itself. The conditions of imprisonment and the prison regimes shall not, therefore, except as incidental to justifiable segregation or the maintenance of discipline, aggravate the suffering inherent in this. 65. Every effort shall be made to ensure that the regimes of the institutions are designed and managed so as: (a) to ensure that the conditions of life are compatible with human dignity and acceptable standards in the community; (b) to minimise the detrimental effects of imprisonment and the differences between prison life and life at liberty which tend to diminish the self-respect or sense of personal responsibility of prisoners; ...” 53. Also in Part IV, under the heading “Work”, they contained the following rules: “71.1. Prison work should be seen as a positive element in treatment, training and institutional management. 71.2. Prisoners under sentence may be required to work, subject to their physical and mental fitness as determined by the medical officer. 71.3. Sufficient work of a useful nature, or if appropriate other purposeful activities, shall be provided to keep prisoners actively employed for a normal working day. 71.4. So far as possible the work provided shall be such as will maintain or increase the prisoner’s ability to earn a normal living after release. ... 72.1 The organisation and methods of work in the institutions shall resemble as closely as possible those of similar work in the community so as to prepare prisoners for the conditions of normal occupational life. ... ... 74.1. Safety and health precautions for prisoners shall be similar to those that apply to workers outside. 74.2. Provision shall be made to indemnify prisoners against industrial injury, including occupational disease, on terms not less favourable than those extended by law to workers outside. ... 76.1. There shall be a system of equitable remuneration of the work of prisoners.” (b) The 2006 European Prison Rules 54. On 11 January 2006 the Committee of Ministers of the Council of Europe adopted a new version of the European Prison Rules, Recommendation Rec(2006)2 (“the 2006 Rules”). It noted that the 1987 Rules “needed to be substantively revised and updated in order to reflect the developments which ha[d] occurred in penal policy, sentencing practice and the overall management of prisons in Europe”. 55. Part I of the 2006 Rules contains the following basic principles, inter alia : “2. Persons deprived of their liberty retain all rights that are not lawfully taken away by the decision sentencing them or remanding them in custody. 3. Restrictions placed on persons deprived of their liberty shall be the minimum necessary and proportionate to the legitimate objective for which they are imposed. ... 5. Life in prison shall approximate as closely as possible the positive aspects of life in the community. 6. All detention shall be managed so as to facilitate the reintegration into free society of persons who have been deprived of their liberty.” The commentary on the 2006 Rules (prepared by the European Committee on Crime Problems ) notes that Rule 2 emphasises that the loss of the right to liberty should not lead to an assumption that prisoners automatically lose other political, civil, social, economic and cultural rights, so that restrictions should be as few as possible. The commentary observes that Rule 5 underlines the positive aspects of normalisation, recognising that, while life in prison can never be the same as life in a free society, active steps should be taken to make conditions in prison as close to normal life as possible. The commentary further states that Rule 6 “recognises that prisoners, both untried and sentenced, will eventually return to the community and that prison life has to be organised with this in mind”. 56. In Part II (“Conditions of imprisonment”), Rule 26 of the 2006 Rules deals with the various aspects of prison work. The relevant parts thereof read as follows: “26.1 Prison work shall be approached as a positive element of the prison regime and shall never be used as a punishment. 26.2 Prison authorities shall strive to provide sufficient work of a useful nature. 26.3 As far as possible, the work provided shall be such as will maintain or increase prisoners’ ability to earn a living after release. ... 26.7 The organisation and methods of work in the institutions shall resemble as closely as possible those of similar work in the community in order to prepare prisoners for the conditions of normal occupational life. ... 26.9 Work for prisoners shall be provided by the prison authorities, either on their own or in cooperation with private contractors, inside or outside prison. 26.10 In all instances there shall be equitable remuneration of the work of prisoners. ... 26.13 Health and safety precautions for prisoners shall protect them adequately and shall not be less rigorous than those that apply to workers outside. 26.14 Provision shall be made to indemnify prisoners against industrial injury, including occupational disease, on terms not less favourable than those extended by national law to workers outside. ... 26.17 As far as possible, prisoners who work shall be included in national social security systems.” The commentary on Rule 26 underlines the principle of normalisation of prison work in that provisions for health, safety, working hours and “even involvement in national social security systems” should reflect those for workers on the outside. In contrast, the 1987 Rules, although they contain the notion of normalisation of prison work, are silent on the question of prisoners’ inclusion in national social security systems. 57. Part VIII of the 2006 Rules, entitled “Sentenced prisoners”, contains further rules regarding the objective of the regime for sentenced prisoners: “102.1 In addition to the rules that apply to all prisoners, the regime for sentenced prisoners shall be designed to enable them to lead a responsible and crime-free life. 102.2 Imprisonment is by the deprivation of liberty a punishment in itself and therefore the regime for sentenced prisoners shall not aggravate the suffering inherent in imprisonment.” 58. It also deals with work as one aspect of the regime for sentenced prisoners. The relevant parts of Rule 105 provide as follows: “105.2 Sentenced prisoners who have not reached the normal retirement age may be required to work, subject to their physical and mental fitness as determined by the medical practitioner. 105.3 If sentenced prisoners are required to work, the conditions of such work shall conform to the standards and controls which apply in the outside community.” 2. The European Social Charter 59. The European Social Charter, a Council of Europe treaty which was adopted in 1961 and revised in 1996, is also of some relevance in the present context. Article 1, dealing with the right to work, provides: “ With a view to ensuring the effective exercise of the right to work, the Parties under take: 1. to accept as one of their primary aims and respon sibili ties the achieve ment and maintenance of as high and stable a level of employ ment as possible, with a view to the attainment of full employment; 2. to protect effectively the right of the worker to earn his living in an occupation freely entered upon; ...” The European Committee of Social Rights, the body responsible for monitoring States Parties’ compliance with the European Social Charter, has interpreted Article 1 § 2 to mean that prison work must be strictly regulated, in terms of pay, working hours and social security, particularly if prisoners are working for private firms. Prisoners may only be employed by private enterprises with their consent and in conditions as similar as possible to those normally associated with a private employment relationship (see Digest of the Case Law of the European Committee of Social Rights, 1 September 2008, p. 23). C. Comparative European law 60. From the information available to the Court, including a survey on comparative law taking into account the national laws of forty out of the forty-seven member States of the Council of Europe, it would appear that (a) in twenty-five member States, prisoners are, at least in some circumstances, required to work, namely Azerbaijan, the Czech Republic, Estonia, Finland, Georgia, Germany, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Norway, Poland, Montenegro, Russia, Slovakia, Spain, Sweden, Switzerland, Turkey, Ukraine and the United Kingdom; (b) twenty-two member States give prisoners access to the old-age pension system, namely Albania, Andorra, Azerbaijan, Croatia, Cyprus, the Czech Republic, Finland, France, Ireland, Italy, Latvia, Lithuania, Norway, Portugal, Russia, Slovakia, Slovenia, Switzerland, “the former Yugoslav Republic of Macedonia”, Turkey, Ukraine and the United Kingdom. In some of these States, prisoners are not automatically covered by the insurance scheme (by way of compulsory contributions or tax deduction) but only have the possibility of paying voluntary contributions; (c) in twelve member States, prisoners are not covered by an old-age pension scheme, namely Belgium, Bosnia and Herzegovina, Bulgaria, Estonia, Georgia, Greece, Hungary, Malta, Montenegro, the Netherlands, Romania and Serbia; (d) in a third group of member States, affiliation to the social security system (including old-age pension) depends on the type of work performed, mainly on whether it is work for outside employers/remunerated work or not. This is the case in Germany, Luxembourg, Poland, Spain and Sweden. In Denmark, entitlement to an old-age pension is not related to work and payment of contributions. All persons of pensionable age are entitled to receive a basic pension; and (e) thirty-seven member States, that is, an absolute majority, provide prisoners, or at least certain categories of prisoners, with some access to social security protection, either by affiliating them to the general social security system or parts of it, or by providing them with a specific type of insurance or other protection. THE LAW I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL No. 1 61. The applicant complained that the exemption of those engaged in prison work from affiliation to the old-age pension system was discriminatory. He relied in substance on Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1. 62. Article 14 provides: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” 63. Article 1 of Protocol No. 1 provides: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” A. The parties’ submissions 1. The applicant 64. The applicant referred to the principle that deprivation of liberty was a punishment in itself and that measures concerning a prisoner should not aggravate the suffering inherent in imprisonment. He argued that the exclusion of working prisoners from affiliation to the old-age pension system was contrary to that principle as it produced long-term effects going beyond the serving of the prison term. 65. Furthermore, he asserted that working prisoners were in the same situation as other employees as regards the need to provide for their old age through social insurance. The domestic courts’ interpretation of section 4(2) of the General Social Security Act, namely that a distinction had to be drawn between voluntary work on the basis of a regular employment contract and prisoners’ work performed in fulfilment of their statutory obligation to work, was not a convincing reason for their exclusion from affiliation to the old-age pension system. 66. The two situations were not fundamentally different in the applicant’s submission. In reality, the vast majority of people at liberty were also obliged to work, if not by law, by the necessity of earning a livelihood. Work, whether performed in or outside the prison context, always served a variety of purposes going beyond the financial aspect of remuneration. The types of work performed by prisoners were not fundamentally different from the types of work performed by other persons. In sum, the exclusion of working prisoners from affiliation to the old-age pension system was not based on any factual difference and therefore required justification. 67. In the applicant’s view, no such justification existed. Firstly, the exclusion of working prisoners from affiliation to the old-age pension system did not serve any legitimate aim. In so far as the Government had referred to the strained financial situation of the social security system, mere budgetary considerations could not suffice to exclude a vulnerable group from social protection. 68. Secondly, the applicant maintained that the Government had not shown objective and reasonable grounds for the difference in treatment. In particular, he contested the Government’s argument that working prisoners could not pay meaningful contributions and that counting periods of prison work as insurance periods would therefore grant prisoners an unjustified privilege as compared to regular employees who had to pay full social security contributions. Since, pursuant to section 51 of the Execution of Sentences Act, the State received the proceeds from the work of prisoners, it could reasonably be expected to pay social security contributions. The Government’s further argument as to whether or not periods of detention could justifiably be regarded as substitute periods was therefore of no relevance. 69. In respect of the possibility for prisoners to make voluntary contributions to the pension scheme under section 17 of the General Social Security Act, the applicant argued that many prisoners did not fulfil the requirement of having accumulated a sufficient number of insurance months in previous periods. Moreover, the costs of voluntary insurance normally exceeded the limited financial resources of prisoners, as 75% of their modest remuneration for work was used as a contribution to the costs of serving their sentence, pursuant to section 32 of the Execution of Sentences Act. 2. The Government 70. The Government argued first and foremost that the non-affiliation of working prisoners to the old-age pension system was not discriminatory within the meaning of Article 14 of the Convention, as working prisoners were not in an analogous situation to regular employees. 71. They gave a detailed description of the organisation of prison work in Austria, underlining that prison work served the primary purpose of reintegration and resocialisation. They noted that the relevant Council of Europe standards, as well as the latest report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment in respect of Austria, acknowledged the importance of work for providing prisoners with an opportunity to preserve or improve their professional qualifications, giving them a purposeful activity and a structured daily routine to make their prison term more bearable and preparing them to take up regular employment after release. 72. Prisoners were obliged to work pursuant to section 44(1) of the Execution of Sentences Act and prison authorities were under an obligation to provide them with suitable work in accordance with section 45(1) of that Act. On account of prison conditions, prisoners worked an average of six hours per day. Although this was not required by any provision of the Convention, prisoners received remuneration. The amounts were fixed by law and varied between EUR 5.00 and EUR 7.50 per hour according to the type of work performed. Periods spent by prisoners undergoing therapeutic or social treatment were regarded as working hours up to a maximum of five hours per week. This was clearly a beneficial form of treatment, underlining that resocialisation was the aim of prison work. The fact that part of the remuneration was used as a maintenance contribution was not at variance with the Convention. 73. In sum, regarding its nature and aim, prison work differed considerably from regular employment. The former, corresponding to a statutory obligation, was geared to resocialisation and reintegration, while the latter was based on an employment contract and served the purpose of securing a person’s subsistence and professional advancement. Consequently, treating periods of prison work differently for the purpose of old-age pension insurance was not only justified but was required by the different factual situation. Counting periods for which no contributions were made as insurance periods would give working prisoners an unjustified advantage over regular employees. 74. The legislature’s decision not to count periods during which a prisoner worked as qualifying or substitute periods was likewise based on objective reasons in the Government’s submission. Under the relevant provisions of the General Social Security Act, periods spent in prison were, inter alia, treated as qualifying periods if the person concerned had been granted compensation in respect of the detention under the Compensation (Criminal Proceedings) Act. In that case, the State had to pay the social security contributions in order to compensate the person concerned for disadvantages suffered under social security law as a result of the detention. To treat persons who were lawfully imprisoned in the same way would lead to equal treatment of unequal facts. To treat periods spent in detention as substitute periods, without payment of contributions, would also create imbalances in the social security system. Generally, the legislature considered that substitute periods were periods during which persons were prevented from making contributions on socially accepted grounds, such as school education, childbirth, unemployment, illness, military or alternative military service. 75. Moreover, it was open to prisoners to make voluntary contributions to the old-age pension system under section 17 of the General Social Security Act. That Act also provided for the possibility of reducing the amount to be paid to a lower level than that of normal contributions. However, the Government stated that, for data protection reasons, they were unable to provide statistical data on the number and proportion of prisoners making use of this possibility. 76. In the alternative, the Government argued that even assuming that working prisoners were in an analogous situation to regular employees, the difference in treatment was justified. In practice, even if prisoners were not excluded from affiliation to the old-age pension system, they would not be able to make meaningful contributions, as very often their remuneration, after deduction of the maintenance contribution, would not reach the threshold of EUR 366.33 of so-called “marginal earnings”, below which employees were in any case not covered by compulsory insurance under the General Social Security Act. Given the strained financial situation of the social security institutions, only persons who were able to make meaningful contributions could be included in the old-age pension system. 77. Moreover, Contracting States enjoyed a wide margin of appreciation in the organisation of their social security systems. Even the 2006 European Prison Rules only recommended that “[a]s far as possible, prisoners who work shall be included in national social security systems”. 78. The Government explained that since the 1993 amendment to the Unemployment Insurance Act, working prisoners had been affiliated to the unemployment insurance scheme. This amendment, which was part of a broader reform of the system of execution of sentences, had been preceded by years of intensive discussion. The decision to integrate prisoners into the unemployment insurance scheme but not the old-age pension scheme was motivated by the consideration that unemployment insurance, which encompassed not only financial benefits but access to training courses and job-finding services, was the most effective instrument for furthering prisoners’ reintegration after release. It had been seen as a first step towards including them in the social security system at large. However, as insurance under the General Social Security Act encompassed health and accident insurance plus affiliation to the old-age pension system, and prisoners’ health care and accident insurance were provided for by the prison authorities under the Execution of Sentences Act, their affiliation to the old-age pension scheme would have necessitated more complex amendments. Moreover, according to studies carried out at the time, it was considered to be the most cost-intensive factor. 79. In addition, the Government pointed out that cases such as the present one with very lengthy prison terms were extremely rare. The majority of prisoners were in a position to accumulate a sufficient number of insurance months on account of the periods worked outside prison. In the present case, the applicant had received unemployment benefits and, since their expiry, had continued to receive emergency relief payments. 80. Finally, the Austrian legislature’s decision thus far not to affiliate prisoners to the old-age pension scheme provided for in the General Social Security Act did not mean that they did not enjoy any social cover. Firstly, as stated above, they were covered by the unemployment insurance scheme. Consequently, they received unemployment benefits and, upon their expiry, emergency relief payments. As a last resort, the system of social assistance provided a means-tested minimum income for persons who could not cover their basic needs by any other means. In sum, the Austrian legal system provided for a differentiated and well-balanced solution taking into account the interests of society at large on the one hand and the interests of prisoners on the other hand. B. The Court’s assessment 1. Applicability of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 81. The Court reiterates that Article 14 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. 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 provisions in question. The prohibition of discrimination in Article 14 thus extends beyond the enjoyment of the rights and freedoms which the Convention and its Protocols require each State to guarantee. It applies also to those additional rights, falling within the general scope of any Article of the Convention, 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, §§ 39-40, ECHR 2005 ‑ X; Andrejeva v. Latvia [GC], no. 55707/00, § 74, ECHR 2009; and, most recently, Carson and Others v. the United Kingdom [GC], no. 42184/05, § 63, ECHR 2010). 82. According to the Court’s established case-law, the principles which apply generally in cases under Article 1 of Protocol No. 1 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 (see Stec and Others (dec.), cited above, § 54; Andrejeva, cited above, § 77; and Carson and Others, cited above, § 64). 83. Moreover, in cases such as the present one, concerning a complaint under Article 14 of the Convention taken 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 (see Gaygusuz v. Austria, 16 September 1996, § 40, Reports of Judgments and Decisions 1996 ‑ IV, and Willis v. United Kingdom, no. 36042/97, § 34, ECHR 2002 ‑ IV). 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 (see Stec and Others (dec.), cited above, § 55, and Andrejeva, cited above, § 79). 84. In the present case, the applicant, having reached pensionable age, claimed an old-age pension which is due as of right on condition that a minimum number of insurance months have been accumulated. The Court considers that the social security legislation at issue creates a proprietary interest falling within the scope of Article 1 of Protocol No. 1. Applying the test whether the applicant would have had an enforceable right to receive a pension had it not been for the condition of entitlement he alleges to be discriminatory, the Court notes that it is undisputed that the applicant had worked for some twenty-eight years in prison without being affiliated to the old-age pension system. His request for an old-age pension was refused on the ground that he lacked the required minimum number of insurance months. It follows that, had he been affiliated to the old-age pension system for work performed in prison, he would have accumulated the necessary number of insurance months and would consequently have been entitled to a pension. 85. The Government did not contest the applicability of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1. Nevertheless, they argued that the applicant’s income as a prisoner was insufficient for him to pay contributions to the old-age pension system: following deduction of the maintenance contribution, his remuneration did not exceed the marginal earnings threshold below which any employee was exempted from compulsory insurance under the General Social Security Act. The Court considers that this argument, which is itself intrinsically linked to the applicant’s position as a prisoner, cannot invalidate the conclusion reached above. 86. In conclusion, the Court finds that the applicant’s claims fall within the scope of Article 1 of Protocol No. 1 and the right to peaceful enjoyment of possessions which it safeguards. This is sufficient to render Article 14 applicable. 2. Compliance with Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 (a) General principles 87. The Court has established in its case-law that only differences in treatment based on an identifiable characteristic, or “status”, are capable of amounting to discrimination within the meaning of Article 14 (see Carson and Others, cited above, § 61). Discrimination means treating differently, without an objective and reasonable justification, persons in relevantly similar situations. “No objective and reasonable justification” means that the distinction in issue 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” (ibid.; see also Andrejeva, cited above, § 81, and Stec and Others v. the United Kingdom [GC], nos. 65731/01 and 65900/01, § 51, ECHR 2006 ‑ VI). 88. 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. The scope of this margin will vary according to the circumstances, the subject matter and its 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, in the absence of an objective and reasonable justification, give rise to a breach of Article 14 (see Andrejeva, cited above, § 82; Stec and Others, cited above, § 51; and Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR 2000 ‑ IV). 89. Similarly, a wide margin of appreciation 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 Andrejeva, cited above, § 83; Stec and Others, cited above, § 52; Carson and Others, cited above, § 61; and, in the specific context of prisoners’ rights, see also Dickson v. the United Kingdom [GC], no. 44362/04, § 78, ECHR 2007 ‑ V). (b) Application of these principles to the present case 90. The applicant complains of discrimination on account of his position as a prisoner. Although being a prisoner is not one of the grounds explicitly mentioned in Article 14, the list set out in this Article is not exhaustive and includes “any other status” (or “ toute autre situation ” in the French text) by which persons or groups of persons are distinguishable from each other. It has not been disputed in the present case that being a prisoner is an aspect of personal status for the purposes of Article 14. (i) Whether the applicant as a working prisoner was in a relevantly similar situation to regular employees 91. The Court will first examine whether, in respect of affiliation to the old-age pension system under the General Social Security Act, the applicant as a working prisoner was in a relevantly similar situation to regular employees. 92. The Government laid much emphasis on the differences in aim and nature between prison work and regular employment. They underlined that prison work served the primary aim of rehabilitation and pointed to its obligatory nature, arguing that these features set the applicant’s situation apart from that of ordinary employees. For his part, the applicant asserted that the obligatory nature of prison work was not decisive in the present context and that the type of work performed by prisoners did not differ in any way from the work performed by ordinary employees. 93. The Court observes that prison work differs from the work performed by ordinary employees in many aspects. It serves the primary aim of rehabilitation and resocialisation. Working hours, remuneration and the use of part of that remuneration as a maintenance contribution reflect the particular prison context. Moreover, in the Austrian system, prisoners’ obligation to work is matched by the prison authorities’ obligation to provide them with appropriate work. Indeed, that situation is far removed from a regular employer-employee relationship. It could be argued that, consequently, the applicant as a working prisoner was not in a relevantly similar situation to ordinary employees. 94. However, in the Court’s view, neither the fact that prison work is aimed at reintegration and resocialisation nor the obligatory nature of prison work is decisive in the present case. Furthermore, the Court considers that it is not decisive whether work is performed for the prison authorities, as in the applicant’s case, or for a private employer, although in the latter case there appears to be a stronger resemblance to a regular employment relationship. 95. What is at issue in the present case is not so much the nature and aim of prison work itself but the need to provide for old age. The Court finds that in respect of this the applicant as a working prisoner was in a relevantly similar situation to ordinary employees. It therefore has to examine whether the difference in treatment in respect of affiliation to the old-age pension system under the General Social Security Act was justified. In respect of affiliation to the health and accident insurance scheme under the General Social Security Act, however, the Court would agree that the applicant as a working prisoner was in a different situation from ordinary employees since prisoners’ health and accident care is provided by the State pursuant to the Execution of Sentences Act. Equally, the Court would accept that, as regards the payment of his pension, a prisoner who has already reached pensionable age is in a different situation from a pensioner who is not imprisoned, as a prisoner’s livelihood is provided for by the prison authorities. (ii) Whether the difference in treatment pursued a legitimate aim 96. Regarding the aim of the difference in treatment, the Government argued that working prisoners often did not have the financial means to pay social security contributions. Counting periods for which no, or at least, no meaningful contributions had been made as insurance periods giving rise to pension entitlements would create an imbalance between working prisoners and persons outside the prison context and would undermine the economic efficiency of the social security institutions, which were already facing a strained financial situation. 97. In addition, a further aim, namely that of preserving the overall consistency within the social security system, appeared to be implied in the Government’s submissions. They argued that periods worked in prison could not be counted as qualifying or substitute periods as, according to the principles of Austrian social security law, such periods could only serve to compensate for periods during which no contributions were made by reason of a limited number of socially accepted activities or situations (for example, school education, childbirth, unemployment, illness, military or alternative military service). 98. The Court accepts that the aims relied on by the Government, namely preserving the economic efficiency and overall consistency of the old-age pension system by excluding from benefits persons who have not made meaningful contributions, are legitimate ones. (iii) Whether the difference in treatment was proportionate 99. The Court reiterates its well-established case-law that prisoners in general continue to enjoy all the fundamental rights and freedoms guaranteed under the Convention save for the right to liberty, where lawfully imposed detention expressly falls within the scope of Article 5 of the Convention. It is inconceivable that a prisoner should forfeit his Convention rights merely because of his status as a person detained following conviction (see Hirst v. the United Kingdom (no. 2) [GC], no. 74025/01, §§ 69-70, ECHR 2005 ‑ IX, and Dickson, cited above, § 67). Accordingly, a person retains his or her Convention rights on imprisonment, so that any restriction on those rights must be justified in each individual case. This justification can flow, inter alia, from the necessary and inevitable consequences of imprisonment or from an adequate link between the restriction and the circumstances of the prisoner in question (ibid., § 68). 100. It is against this background that the Court will examine whether there was a reasonable relationship of proportionality between the non-affiliation of working prisoners to the old-age pension system and the legitimate aims set out above. The core of the applicant’s argument was that the Government had failed to provide a justification for the difference in treatment. He asserted that the main reason for prisoners’ inability to pay social security contributions under the General Social Security Act was the State’s own policy choice to withhold the major part of a prisoner’s remuneration as a maintenance contribution. 101. The Court observes that the issue of working prisoners’ affiliation to the old-age pension system is closely linked to issues of penal policy, such as the perception of the general aims of imprisonment, the system of prison work, its remuneration and the priorities in using the proceeds from it, but also to issues of social policy reflected in the social security system as a whole. In short, it raises complex issues and choices of social strategy, which is an area in which States enjoy a wide margin of appreciation, whereas the Court will only intervene when it considers the legislature’s policy choice to be “manifestly without reasonable foundation” (see the case-law cited at paragraph 89 above). 102. Given the complexity of the issue, the Court finds that it cannot look at the question of prisoners’ affiliation to the old-age pension system in isolation but has to see it as one feature in the overall system of prison work and prisoners’ social cover. 103. As has been observed above, in the Austrian system prisoners are under an obligation to work, while the prison authorities are obliged to provide prisoners with appropriate work. The Court notes as a positive feature of that system that more than 70% of the prison population are currently working. Working hours are adapted to the prison context, including certain favourable measures such as counting time spent in therapeutic or social treatment as working time up to five hours per week. Moreover, prisoners receive remuneration for their work, of which 75% is, however, deducted as a maintenance contribution. The Court notes in the first place that collecting such a contribution is not in itself at variance with the Convention (see Puzinas v. Lithuania (dec.), no. 63767/00, 13 December 2005, concerning a complaint under Article 1 of Protocol No. 1 about the deduction of a 25% contribution from a prisoner’s salary). While the percentage in the present case appears rather high, it can nevertheless not be regarded as unreasonable taking into account the general costs of maintaining prisons and the fact that a prisoner’s entire livelihood, including health and accident insurance, is provided for by the State. 104. Turning to prisoners’ social cover, the Court reiterates that when defining the breadth of the margin of appreciation, a relevant factor may be the existence or non-existence of common ground between the laws of the Contracting States (see Petrovic v. Austria, 27 March 1998, § 38, Reports 1998 ‑ II). 105. The Court observes that although there is no European consensus on the matter, there is an evolving trend: in contrast to the 1987 European Prison Rules, the 2006 European Prison Rules not only contain the principle of normalisation of prison work but also explicitly recommend in Rule 26.17 that “[a]s far as possible prisoners who work shall be included in national social security systems” (see paragraph 56 above). However, the Court notes that the wording used in Rule 26.17 is cautious (“[a]s far as possible”) and refers to inclusion in national social security systems in general terms. Moreover, while an absolute majority of Council of Europe member States provide prisoners with some kind of social security, only a small majority affiliate prisoners to their old-age pension system, some of them, like Austria, only by giving them the possibility of making voluntary contributions. A minority do not include prisoners in the old-age pension system at all (see paragraph 60 above). 106. It is thus only gradually that societies are moving towards the affiliation of prisoners to their social security systems in general and to their old-age pension systems in particular. Austrian law reflects this trend in that all prisoners are to be provided with health and accident care. In addition, working prisoners have been affiliated to the unemployment insurance scheme since 1 January 1994, following the 1993 amendment to the Unemployment Insurance Act which formed part of a broader reform of the system of execution of sentences. As the Government explained, the reason for that decision was that the legislature considered unemployment insurance to be the most efficient instrument for assisting prisoners’ reintegration upon release as, in addition to payment of unemployment benefits, it granted access to a whole range of training and job-search facilities. At the time of the 1993 reform, affiliation to the old-age pension system had been envisaged, but it has so far not been put in place as a result of the strained financial situation of the social security institutions. 107. Turning to the applicant’s situation, the Court observes that he worked for lengthy periods in prison (see paragraph 10 above). It follows from the domestic authorities’ decisions in the present case that his periods without insurance cover occurred between the 1960s and the 1990s. The Court attaches weight to the fact that at the material time there was no common ground regarding the affiliation of working prisoners to domestic social security systems. This lack of common ground was reflected in the 1987 European Prison Rules, which did not contain any provision in this regard. 108. The Government argued that very lengthy prison terms were rare and that, consequently, the majority of prisoners had the possibility of accumulating a sufficient number of insurance months for work performed outside prison and were therefore not deprived of an old-age pension. The Court does not consider it necessary to examine this argument in detail. It would rather attach weight to the fact that the applicant, although not entitled to an old-age pension, was not left without social cover. Following his release from prison, he received unemployment benefits and subsequently emergency relief payments, to which he was entitled on account of having been covered by the Unemployment Insurance Act as a working prisoner. According to his own submissions, the applicant currently still receives emergency relief payments complemented by social assistance in the form of a housing allowance. His monthly income currently amounts to approximately EUR 720 and thus almost reaches the level of a minimum pension, which is currently fixed at approximately EUR 780 for a single person. 109. On the basis of the facts of the present case and all the information before it, the Court finds that the system of prison work and the social cover associated with it taken as whole is not “manifestly without reasonable foundation”. In a context of changing standards, a Contracting State cannot be reproached for having given priority to the insurance scheme, namely unemployment insurance, which it considered to be the most relevant for the reintegration of prisoners upon their release. 110. While the respondent State is required to keep the issue raised by the present case under review, the Court finds that by not having affiliated working prisoners to the old-age pension system to date, it has not exceeded the margin of appreciation afforded to it in that matter. 111. It follows that there has been no violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1. II. ALLEGED VIOLATION OF ARTICLE 4 OF THE CONVENTION 112. The applicant alleged that since he was not affiliated to the old-age pension system for work performed as a prisoner, such work could not be regarded as falling under the terms of Article 4 § 3 (a) and therefore violated Article 4 § 2 of the Convention. The relevant parts of Article 4 read as follows: “1. No one shall be held in slavery or servitude. 2. No one shall be required to perform forced or compulsory labour. 3. For the purpose of this Article the term ‘forced or compulsory labour’ shall not include: (a) any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of [the] Convention or during conditional release from such detention; ...” A. The parties’ submissions 113. The applicant asserted that the prison work performed by him clearly amounted to “forced or compulsory labour” within the meaning of Article 4 § 2 of the Convention. He referred to ILO Convention No. 29, according to which “forced or compulsory labour” meant 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”. In that connection, he pointed out that prisoners in Austria were obliged to work pursuant to section 44 of the Execution of Sentences Act and that it was a punishable offence under sections 107(1) and 109 of that Act if a prisoner refused to work. 114. While conceding that the obligation to work as a prisoner could be justified by Article 4 § 3 (a), he submitted that, by today’s standards, prison work without affiliation to the old-age pension system could not be regarded as “work required to be done in the ordinary course of detention” within the meaning of that provision. Consequently, the fact that he had to work as a prisoner without being affiliated to the old-age pension system violated Article 4 of the Convention. 115. For their part, the Government argued that prison work fell outside the scope of Article 4 as it was covered by the exception to the prohibition of forced or compulsory labour contained in Article 4 § 3 (a). Consequently, the non-affiliation of working prisoners to the old-age pension system did not raise an issue under Article 4 of the Convention. B. The Court’s assessment 1. General principles 116. The Court reiterates that Article 4 enshrines one of the fundamental values of democratic societies. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 4 § 1 makes no provision for exceptions and no derogation from it is permissible under Article 15 § 2 even in the event of a public emergency threatening the life of the nation (see Siliadin v. France, no. 73316/01, § 112, ECHR 2005 ‑ VII, and Rantsev v. Cyprus and Russia, no. 25965/04, § 283, ECHR 2010). 117. Article 4 § 2 of the Convention prohibits “forced or compulsory labour”. In interpreting Article 4, the Court has in previous cases taken into account the relevant ILO Conventions, which are binding on almost all of the Council of Europe member States, including Austria, and especially the 1930 Forced Labour Convention (No. 29) (see Van der Mussele v. Belgium, 23 November 1983, § 32, Series A no. 70, and Siliadin, cited above, § 115). 118. The Court noted in those cases that there was in fact a striking similarity, which was not accidental, between paragraph 3 of Article 4 of the Convention and paragraph 2 of Article 2 of ILO Convention No. 29. Paragraph 1 of the last-mentioned Article provides that “for the purposes” of the latter Convention, the term “forced or compulsory labour” means “all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily” (see Siliadin, cited above, § 116). The Court regarded this definition as a starting-point for the interpretation of Article 4 of the Convention but noted that sight should not be lost of the Convention’s special features or of the fact that it was a living instrument to be read “in the light of the notions currently prevailing in democratic States” (see Van der Mussele, cited above, § 32). 119. Article 4 § 3 (a) of the Convention indicates that the term “forced or compulsory” labour does not include “any work required to be done in the ordinary course of detention”. 120. The Court has noted the specific structure of Article 4. Paragraph 3 is not intended to “limit” the exercise of the right guaranteed by paragraph 2, but to “delimit” the very content of that right, for it forms a whole with paragraph 2 and indicates what the term “forced or compulsory labour” is not to include (“ n’est pas consideré comme ‘travail forcé ou obligatoire’ ”). This being so, paragraph 3 serves as an aid to the interpretation of paragraph 2. The four subparagraphs of paragraph 3, notwithstanding their diversity, are grounded on the governing ideas of general interest, social solidarity and what is normal in the ordinary course of affairs (see Van der Mussele, cited above, § 38; see also Karlheinz Schmidt v. Germany, 18 July 1994, § 22, Series A no. 291 ‑ B, and Zarb Adami v. Malta, no. 17209/02, § 44, ECHR 2006 ‑ VIII). 121. The Court’s case-law concerning prison work is scarce. In one of its early judgments the Court had to consider the work a recidivist prisoner was required to perform, his release being conditional on accumulating a certain amount of savings. While accepting that the work at issue was obligatory, the Court found no violation of Article 4 of the Convention on the ground that the requirements of Article 4 § 3 (a) were met. In the Court’s view, the work required “did not go beyond what is ‘ordinary’ in this context since it was calculated to assist him in reintegrating himself into society and had as its legal basis provisions which find an equivalent in certain other member States of the Council of Europe” (see Van Droogenbroeck v. Belgium, 24 June 1982, § 59, Series A no. 50, with reference to De Wilde, Ooms and Versyp v. Belgium, 18 June 1971, §§ 89 ‑ 90, Series A no. 12). 122. In respect of prisoners’ remuneration and social cover, the Court refers to the decision by the European Commission of Human Rights in Twenty-One Detained Persons v. Germany (nos. 3134/67, 3172/67 and 3188-3206/67, Commission decision of 6 April 1968, Collection 27, pp. 97-116), in which the applicants, relying on Article 4, complained that they were refused adequate remuneration for the work which they had to perform during their detention and that no contributions under the social security system were made for them by the prison authorities in respect of the work done. The Commission declared their complaint inadmissible as being manifestly ill ‑ founded. It noted that Article 4 did not contain any provision concerning the remuneration of prisoners for their work. Moreover, it referred to its consistent case-law, which had rejected as being inadmissible any applications by prisoners claiming higher payment for their work or claiming the right to be covered by social security systems. 123. The Court had to examine a similar complaint from a somewhat different angle in Puzinas (cited above). The applicant complained under Articles 4 and 14 of the Convention and Article 1 of Protocol No. 1 that the domestic social security legislation was inadequate in that it did not permit prisoners to claim a pension or any other social benefits for prison work. The Court examined the complaint in the first place under Article 1 of Protocol No. 1, noting that it was undisputed that the applicant was not entitled to any pension or social benefits under the relevant domestic legislation. Finding that the applicant therefore had no possessions within the meaning of Article 1 of Protocol No. 1 regarding his future entitlement to or the amount of a pension, the Court rejected the complaint under this provision, as well as under the other provisions relied on, as being incompatible ratione materiae with the provisions of the Convention. 2. Application to the present case 124. The Court has to examine whether the applicant in the present case had to perform “forced or compulsory labour” contrary to Article 4 of the Convention. The Court notes that the applicant was under an obligation to work in accordance with section 44(1) of the Execution of Sentences Act. Refusal to perform the work assigned to him constituted an offence under section 107 of that Act, punishable under section 109 by penalties ranging from a reprimand to solitary confinement. 125. Taking the definition of “forced or compulsory labour” contained in Article 2 § 1 of ILO Convention No. 29 as a starting-point for the interpretation of Article 4 § 2 of the Convention (see Van der Mussele, cited above, §§ 32-34), the Court has no doubt that the applicant was performing work for which he had not offered himself voluntarily under the menace of a penalty. 126. While this does not appear to be in dispute between the parties, they differ in their view as to whether his work was covered by the terms of Article 4 § 3 (a) of the Convention, which exempts “work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of [the] Convention” from the term “forced or compulsory labour”. The Government answered the question in the affirmative, concluding that the work performed by the applicant as a prisoner did not fall within the scope of Article 4. The applicant for his part asserted that prison work without affiliation to the old-age pension system was not covered by the provision in question. Therefore, it constituted “forced or compulsory labour” in violation of Article 4 § 2. 127. The Court has not yet had an opportunity to examine the question whether Article 4 requires Contracting States to include working prisoners in the social security system. It notes that the above-mentioned decision of the Commission in Twenty-One Detained Persons (cited above), which answered the question in the negative, dates from 1968. The Court will therefore have to assess whether the position adopted in that decision is still valid in respect of the work performed by the applicant as a prisoner without being affiliated to the old-age pension system. 128. The wording of the Convention does not give any indication as regards the issue of working prisoners’ affiliation to the national social security system. However, in establishing what is to be considered “work required to be done in the ordinary course of detention”, the Court will have regard to the standards prevailing in member States (see Van Droogenbroeck, cited above, § 59). 129. The applicant relies in essence on the Court’s doctrine that the Convention is a living instrument which must be interpreted in the light of present-day conditions (see, for instance, Tyrer v. the United Kingdom, 25 April 1978, § 31, Series A no. 26; Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 75, ECHR 2002 ‑ VI; and Van der Mussele, cited above, § 32). He appears to be arguing that European standards have changed to such an extent that prison work without affiliation to the old-age pension system can no longer be regarded as “work required to be done in the ordinary course of detention”. 130. The Court notes that the applicant worked for lengthy periods in prison, starting in the 1960s. At that time the Commission, in its decision in Twenty-One Detained Persons (cited above), held that Article 4 of the Convention did not require working prisoners to be affiliated to the social security system. The 1987 European Prison Rules remained silent on the issue of working prisoners’ affiliation to the social security system. The Court acknowledges that, subsequently, significant developments have taken place in the field of penal policy. These developments are reflected in the 2006 European Prison Rules, which contain the principle of normalisation of prison work as one of the basic principles. More specifically in the present context, Rule 26.17 of the 2006 Rules provides that “[a]s far as possible, prisoners who work shall be included in national social security systems”. 131. However, having regard to the current practice of the member States, the Court does not find a basis for the interpretation of Article 4 advocated by the applicant. According to the information available to the Court, while an absolute majority of Contracting States affiliate prisoners in some way to the national social security system or provide them with some specific insurance scheme, only a small majority affiliate working prisoners to the old-age pension system. Austrian law reflects the development of European law in that all prisoners are provided with health and accident care and working prisoners are affiliated to the unemployment insurance scheme but not to the old-age pension system. 132. In sum, it appears that there is not sufficient consensus on the issue of the affiliation of working prisoners to the old-age pension system. While Rule 26.17 of the 2006 European Prison Rules reflects an evolving trend, it cannot be translated into an obligation under Article 4 of the Convention. Consequently, the obligatory work performed by the applicant as a prisoner without being affiliated to the old-age pension system has to be regarded as “work required to be done in the ordinary course of detention” within the meaning of Article 4 § 3 (a). 133. The Court concludes that the work performed by the applicant was covered by the terms of Article 4 § 3 (a) of the Convention, and did not therefore constitute “forced or compulsory labour” within the meaning of Article 4 § 2 of the Convention. 134. Consequently, there has been no violation of Article 4 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 4 135. The Court notes that the applicant relied mainly on Article 4 alone, but also referred to Article 14, however without submitting any separate arguments under Article 14 taken in conjunction with Article 4. 136. The Court finds that its examination under Article 4 alone covers all aspects of the issue raised by the applicant’s complaint. The Court therefore considers that there is no need to examine the applicant’s complaint under Article 14 of the Convention taken in conjunction with Article 4. | The Court held that there had been no violation of Article 14 (prohibition of discrimination) of the Convention taken in conjunction with Article 1 (protection of property) of Protocol No. 1 to the Convention. While Austria was required to keep the issue raised by the applicant’s case under review, it found that by not having affiliated working prisoners to the old-age pension system to date, it had not exceeded the margin of appreciation afforded to it in that matter. |
914 | Tribunal established by law | RELEVANT LEGAL FRAMEWORK AND PRACTICE Domestic law and practiceDomestic LawConstitution of the Republic of Poland Domestic LawConstitution of the Republic of Poland Constitution of the Republic of Poland Domestic LawConstitution of the Republic of Poland Constitution of the Republic of Poland Constitution of the Republic of Poland 59. The relevant provisions of the Constitution read as follows: Article 2 “The Republic of Poland shall be a democratic State governed by the rule of law and implementing the principles of social justice.” Article 7 “The organs of public authority shall function on the basis of, and within the limits of, the law.” Article 8 § 1 “The Constitution shall be the supreme law of the Republic of Poland.” Article 10 “1. The system of government of the Republic of Poland shall be based on the separation of, and balance between, the legislative, executive and judicial powers. 2. Legislative power shall be vested in Sejm and the Senate, executive power shall be vested in the President of the Republic of Poland and the Council of Ministers, and judicial power shall be vested in courts and tribunals.” Article 32 “1. All persons shall be equal before the law. All persons shall have the right to equal treatment by public authorities. 2. No one shall be discriminated against in political, social or economic life for any reason whatsoever.” Article 45 § 1 “Everyone shall have the right to a fair and public hearing of his case, without undue delay, before a competent, impartial and independent court.” Article 144 “1. The President of the Republic, exercising his constitutional and statutory authority, shall issue Official Acts. 2. Official Acts of the President shall require, for their validity, the signature of the Prime Minister who, by such signature, accepts accountability therefor to Sejm. 3. The provisions of paragraph 2 above shall not relate to: ... (17) appointing judges;...” Article 179 “Judges shall be appointed for an indefinite period by the President of the Republic on the motion of the National Council of the Judiciary.” Article 180 “1. Judges shall not be removable. 2. Recall of a judge from office, suspension from office, or transfer to another bench or position against his or her will, may only occur by virtue of a court judgment and only in those instances prescribed by statute. 3. A judge may be put on retirement as a result of illness or infirmity which prevents him discharging the duties of his office. The procedure for doing so, as well as for appealing against such decision, shall be specified by statute. 4. A statute shall establish an age limit beyond which a judge shall take retirement. ...” Article 183 § 1 “The Supreme Court shall exercise supervision over ordinary and military courts in respect of their judgments.” Article 186 § 1 “The National Council of the Judiciary shall safeguard the independence of courts and judges.” Article 187 “1. The National Council of the Judiciary shall be composed as follows: (1) the First President of the Supreme Court, the Minister of Justice, the President of the Supreme Administrative Court and an individual appointed by the President of the Republic; (2) fifteen judges chosen from among the judges of the Supreme Court, ordinary courts, administrative courts and military courts; (3) four members chosen by Sejm from among its Deputies and two members chosen by the Senate from among its Senators. 2. The National Council of the Judiciary shall choose, from among its members, a chairperson and two deputy chairpersons. 3. The term of office of those chosen as members of the National Council of the Judiciary shall be four years. 4. The organisational structure, the scope of activity and working procedures of the National Council of the Judiciary, as well as the manner of choosing its members, shall be specified by statute.” Article 190 “1. Judgments of the Constitutional Court shall be of universally binding application and shall be final. 2. Judgments of the Constitutional Court regarding matters specified in Article 188 shall be immediately published in the official publication in which the original normative act was promulgated. If a normative act has not been promulgated, then the judgment shall be published in the Official Gazette of the Republic of Poland, Monitor Polski. 3. A judgment of the Constitutional Court shall take effect from the day of its publication, however, the Constitutional Court may specify another date for the end of the binding force of a normative act. Such time period may not exceed 18 months in relation to a statute or 12 months in relation to any other normative act. Where a judgment has financial consequences not provided for in the Budget, the Constitutional Court shall specify a date for the end of the binding force of the normative act concerned, after seeking the opinion of the Council of Ministers. 4. A judgment of the Constitutional Court on the non-conformity with the Constitution, an international agreement or a statute, of a normative act on which a legally binding judgment of a court, a final administrative decision or a settlement of other matters was based, shall be a basis for reopening proceedings, or for quashing the decision or other settlement in a manner and on principles specified in provisions applicable to the given proceedings. 5. Judgments of the Constitutional Court shall be made by a majority of votes.” Relevant provisions of the Code of Criminal Procedure and Code of Civil Procedure 60. Article 439 § 1 of the Code of Criminal Procedure ( Kodeks postępowania karnego ) deals with absolute grounds of appeal ( bezwzględne przyczyny odwoławcze ): “Regardless of the scope of the appeal and the arguments raised, or the impact of any defects on the content of the ruling, the appellate court shall, at a sitting, revoke the decision appealed against if: ... (2) the court was unduly composed or any of its members was not present at the entire hearing”. 61. Article 379 of the Code of Civil Procedure ( Kodeks postępowania cywilnego ) deals with invalidity of proceedings ( nieważność postępowania ): “Proceedings shall be null and void : ... (4) if the composition of the adjudicating court was inconsistent with the provisions of the law, or if a judge excluded [from sitting in the case] by virtue of the law took part in the examination of the case; ...” The 2011 Act on the National Council of the Judiciary as in force prior to 17 January 2018 62. The relevant provisions of the 2011 Act on the NCJ as in force until 17 January 2018 (see paragraph 7 above) read: Section 11 “1. The general assembly of judges of the Supreme Court elects two members of the Council from among the judges of that court. 2. The general assembly of judges of the Supreme Administrative Court, together with the representatives of general assemblies of provincial administrative courts, elects two members of the Council from among the judges of the administrative courts. 3. The meeting of representatives of general assemblies of judges of courts of appeal elects two members of the Council from among judges of the courts of appeal. 4. The meeting of representatives of general assemblies of regional court judges elects eight members of the Council from among their number. 5. The assembly of judges of military courts elects one member of the Council from among its body.” Section 12 “1. General assemblies of judges of Regional Administrative Courts elect two representatives from among their members. 2. Representatives of the general meetings of judges of regional administrative courts are elected at the latest one month before the expiry of the term of office of the Council members, elected from among the judges of the administrative courts. The representatives are elected for a period of four years.” Section 13 “1. General assemblies of judges of courts of appeal elect representatives of general assemblies of judges of courts of appeal from among judges of the courts of appeal in the proportion of one fifth of the number of those judges. 2. The general assemblies of regional judges elect representatives of the general assemblies of regional judges from among their members in the proportion of one fiftieth of the number of regional judges. 3. The election of representatives of the general assemblies shall be carried out at the latest one month before the expiry of the term of office of the members of the Council, elected from among the judges of ordinary courts. The representatives are elected for a period of four years. 4. The Minister of Justice, in agreement with the Chairman of the Council, convenes the meeting of the representatives in order to elect the members of the Council. The Chairman of the Council convenes the meeting of representatives once every two years, and also at the request of one third of the number of representatives or at the request of the Council. 5. The meetings of the representatives evaluate the activity of the members of the Council elected by them, make proposals to the Council concerning its activity and adopt resolutions concerning the problems arising in the activity of the ordinary courts. 6. The meeting of representatives is chaired by the oldest judge in terms of age. The meetings deliberate according to the rules of procedure adopted by them.” The 2017 Amending Act 63. The relevant provisions of the 2011 Act on the NCJ, as amended by the 2017 Amending Act (see paragraph 11 above – ustawa z dnia 8 grudnia 2017 o zmianie ustawy o Krajowej Radzie Sądownictwa oraz niektórych innych ustaw) read as follows: Section 9a “1. Sejm shall appoint, from among the judges of the Supreme Court, ordinary courts, administrative courts and military courts, fifteen members of the Council for a joint four-year term of office. 2. When making the selection referred to in subsection 1, Sejm, to the extent possible, shall take into account the need for representation of judges of particular types and levels of court in the Council. 3. The joint term of office of new members of the Council elected from among the judges shall begin on the day following that on which they are elected. Members of the Council from the previous term shall perform their duties until the first day of the joint term of office of new members of the Council." Section 11a “1. The Speaker of Sejm, not earlier than one hundred and twenty days and not later than ninety days before the expiry of the term of office of the members of the Council elected from among the judges, shall announce in the Official Gazette of the Republic of Poland, Monitor Polski, the commencement of the procedure for submitting candidatures for election to the Council. 2. The entities entitled to nominate a candidate for the Council shall be groups of at least: (1) two thousand citizens of the Republic of Poland who are over eighteen years of age, have full capacity to perform legal acts and enjoy full public rights; (2) twenty-five judges, excluding retired judges. 3. One application may concern only one candidate for election to the Council. The entities referred to in subsection 2 may submit more than one application. 4. Candidates for election to the Council shall be notified to the Speaker of Sejm within thirty days from the date of the announcement referred to in subsection 1. 5. A candidate’s application shall include information about the candidate, the duties and social activities performed to date and other significant events occurring during the candidate’s term of office as judge. The application shall be accompanied by the judge’s consent to be a candidate. 6. Within three days of receiving a candidate’s application, the Speaker of Sejm shall send a written request to the president of the court having jurisdiction in respect of the nominated candidate, and if the application concerns the president of: (1) a district court, a regional court or a military court - to the president of the higher court; (2) a court of appeal, district administrative court or military district court – to the vice-president or deputy president of that court – with a request to compile and forward, within seven days of receiving the request, information on the candidate’s judicial achievements, including socially significant or precedent-setting judgments, and relevant information on the candidate’s judicial culture, primarily disclosed during inspections and lustrations. 7. If the information referred to in subsection 6 is not prepared within the time-limit referred to in that subsection, the Speaker of Sejm shall send a written request to the candidate for election to the Council to have the information prepared by the candidate within seven days of receiving the request of the Speaker of Sejm. The candidate for election to the Council shall forward a copy of the information he or she prepares to the president of the court having jurisdiction in respect of the nominated candidate, the president of the higher court or the vice-president or deputy president of the court of appeal, the regional administrative court or the military regional court, respectively. 8. If the information referred to in subsection 6 is not prepared by the candidate for election to the Council within the time-limit referred to in subsection 7, the Speaker of Sejm shall refuse to accept the application. The decision on that matter, together with the justification, shall immediately be delivered to the proxy and to the candidate for election to the Council. 9. The information referred to in subsection 6 shall be attached by the Speaker of Sejm to the candidate’s application.” Section 11d “1. The Speaker of Sejm shall request the parliamentary groups to indicate, within seven days, their candidates for election to the Council. 2. The parliamentary group shall indicate, from among the judges whose candidatures have been put forward under section 11a, no more than nine candidates for election to the Council. 3. If the total number of candidates indicated by the parliamentary groups is less than fifteen, the Presidium of Sejm shall indicate, from among the candidates nominated under the section 11a procedure, the number of candidates that are lacking up to fifteen. 4. The competent committee of Sejm shall establish the list of candidates by selecting, from among the candidates indicated pursuant to the provisions of subsections 2 and 3, fifteen candidates for election to the Council, with the proviso that the list shall include at least one candidate indicated by each parliamentary group which has been active within sixty days from the date of the first sitting of Sejm during the term of office in which the election is to take place, provided that such candidate has been indicated by the group within the framework of the indication referred to in subsection 2. 5. Sejm shall elect the members of the Council, for a joint four-year term of office, at its next sitting, by a three-fifths majority in the presence of at least one half of the statutory number of Deputies, voting on the list of candidates referred to in subsection 4. 6. In the event of failure to elect members of the Council in accordance with the procedure set forth in subsection 5 Sejm shall elect the members of the Council by an absolute majority of votes cast in the presence of at least a half of the statutory number of members, voting on the list of candidates referred to in subsection 4. 7. If, as a result of the procedure referred to in subsections 1 ‑ 6, fifteen members of the Council are not elected, the provisions of sections 11a ‑ 11d shall apply accordingly.” Section 43 “1. An NCJ resolution shall become final if no appeal lies against it. 2. Unless all the participants in the procedure have challenged the resolution referred to in section 37(1), that resolution shall become final for the part comprising the decision not to present the recommendation for appointment to the office of judge of the participants who did not lodge an appeal, subject to the provisions of section 44(1b).” 64. Section 44 underwent several amendments. Section 44(1a) of the 2011 Act on the NCJ was inserted by an amendment of 8 December 2017 which entered into force on 17 January 2018. Section 44(1b) and (4) were inserted by the amendment of 20 July 2018, which entered into force on 27 July 2018. Section 44 of the 2011 Act on the NCJ, in the version in force between 27 July 2018 and 22 May 2019, read as follows: “1. A participant in the procedure may appeal to the Supreme Court on the grounds that the [NCJ] resolution is unlawful, unless separate provisions provide otherwise. ... 1a. In individual cases concerning appointments to the office of judge of the Supreme Court, an appeal may be lodged with the Supreme Administrative Court. In those cases it is not possible to appeal to the [Supreme Court]. An appeal to the [Supreme Administrative Court] may not be based on an allegation that there was an incorrect assessment of the candidates’ fulfilment of the criteria taken into account when making a decision on the presentation of the recommendation for appointment to the [Supreme Court]. 1b. Unless all the participants in the procedure have challenged the resolution [indicated above]... in individual cases concerning appointment to the office of judge of the [Supreme Court], that resolution shall become final in the part containing the decision to present the recommendation for appointment to the [Supreme Court] and in the part comprising the decision not to present the recommendation for appointment to the office of judge of the same court for participants in the procedure who did not lodge an appeal ... 4. In individual cases concerning appointment to the office of judge of the Supreme Court, the annulment by the [Supreme Administrative Court] of the [NCJ] resolution not to present the recommendation for appointment to the office of judge of the [Supreme Court] is equivalent to accepting the candidature of the participant who lodged an appeal in the procedure for the vacant position of judge at the [Supreme Court], for a position for which, on the date of delivery of the [Supreme Administrative Court] judgment, the procedure before the [NCJ] has not ended or, in the absence of such a procedure, for the next vacant position of judge in the [Supreme Court] which is the subject of the announcement.” 65. On 25 March 2019 the Constitutional Court declared section 44(1a) unconstitutional and repealed it with effect from 1 April 2019 (case K 12/18; see paragraph 114 below). Subsequently, section 44 was amended by an Act of 26 April 2019, which entered into force on 23 May 2019 (the Act amending the Act on the NCJ and the Act on the System of Administrative Courts; ustawa o zmianie ustawy o Krajowej Radzie Sądownictwa oraz ustawy ‐ Prawo o ustroju sądów administracyjnych ). Section 44(1b) was quashed and section 44(1) was amended and now states as follows: “A participant in the procedure may appeal to the Supreme Court on the grounds that the [NCJ] resolution was unlawful, unless separate provisions provide otherwise. There shall be no right of appeal in individual cases regarding the appointment of Supreme Court judges.” Furthermore, section 3 of the Act of 26 April 2019 referred to above provides that “the proceedings in cases concerning appeals against NCJ resolutions in individual cases regarding the appointment of Supreme Court judges, which have been initiated but not concluded before this Act comes into force, shall be discontinued by law”. The 2017 Act on the Supreme Court 66. The 2017 Act on the Supreme Court entered into force on 3 April 2018 (ustawa z dnia 8 grudnia 2017 o Sądzie Najwyższym). 67. Under Section 29 the judges shall be appointed to the Supreme Court by the President of the Republic acting on a recommendation from the NCJ. Section 30 sets out the conditions which a person must satisfy in order to qualify for the post of judge of the Supreme Court. 68. Section 3 provides for the creation of two new chambers within the Supreme Court: the Disciplinary Chamber ( Izba Dyscyplinarna ) and the Chamber of Extraordinary Review and Public Affairs ( Izba Kontroli Nadzwyczajnej i Spraw Publicznych ). Section 4 “The President of the Republic of Poland, after obtaining the opinion of the Supreme Court Board, shall determine by ordinance the rules of procedure of the Supreme Court, in which he shall fix the number of posts of judge of the Supreme Court at not less than 120, including their number in the respective chambers, the internal organisation of the Supreme Court, the rules of internal procedure and the detailed scope and manner of performance of activities by assistant judges, taking into account the need to ensure the efficient functioning of the Supreme Court, its chambers and organs, the specificity of the proceedings conducted before the Supreme Court, including disciplinary proceedings, and the number and type of cases heard.” Section 20 “With regard to the Disciplinary Chamber and the judges who adjudicate in it, the powers of the First President of the Supreme Court, as defined in: (1) Section 14(1)(1), (4) and (7), section 31(1), section 35(2), section 36(6), section 40(1) and (4) and section 51(7) and (14), shall be exercised by the President of the Supreme Court who directs the work of the Disciplinary Chamber; (2) and those in section 14(1)(2) and the second sentence of section 55(3), shall be exercised by the First President of the Supreme Court in agreement with the President of the Supreme Court who directs the work of the Disciplinary Chamber.” Section 25 “The Labour and Social Security Chamber shall have jurisdiction to hear and rule on cases concerning labour law, social security ...” Section 26 ((2) - (6) added with effect from 14 February 2020) “1. The jurisdiction of the Chamber of Extraordinary Review and Public Affairs shall include the examination of extraordinary appeals, examination of election protests and protests against the validity of the national referendum and the constitutional referendum, and ascertaining the validity of elections and the referendum, other public law cases, including cases in the field of competition protection, energy regulation, telecommunications and railway transport, and cases in which an appeal has been filed against the decision of the Chairman of the National Broadcasting Council, as well as complaints concerning the excessive length of proceedings before ordinary and military courts and the Supreme Court. 2. It shall be within the jurisdiction of the Extraordinary Review and Public Affairs Chamber to hear motions or declarations for the exclusion of a judge or for the designation of the court before which the proceedings are to be held, involving a plea of lack of independence of the court or lack of independence of the judge. The court examining the case shall immediately forward the motion to the President of the Extraordinary Review and Public Affairs Chamber for further proceedings under rules laid down in separate provisions. The forwarding of the motion to the President of the Extraordinary Review and Public Affairs Chamber shall not stay the course of the proceedings pending. 3. The motion referred to in subsection 2 shall be left without consideration if it concerns the determination and assessment of the legality of the appointment of a judge or his authority to perform judicial duties. 4. The jurisdiction of the Extraordinary Review and Public Affairs Chamber shall include consideration of complaints about the determination of the unlawfulness of a final decision of the Supreme Court, ordinary courts, military courts and administrative courts, including the Supreme Administrative Court, if the unlawfulness consists in challenging the status of the person appointed to the office of judge who issued the decision in the case. 5. The proceedings in cases referred to in subsection 4 shall be governed by the relevant provisions on establishing the unlawfulness of final judgments, and in criminal cases by the provisions on the resumption of judicial proceedings concluded with a final judgment. It is not necessary to establish probability or damage caused by the issuance of the decision which is the subject of the complaint. 6. The complaint about the unlawfulness of a final decision, referred to in subsection 4 may be lodged with the Supreme Court’s Extraordinary Review and Public Affairs Chamber, bypassing the court which issued the appealed decision, and also in the event that the party does not make use of the legal remedies to which it is entitled, including an extraordinary complaint to the Supreme Court.” Section 27 § 1 “The following cases shall fall within the jurisdiction of the Disciplinary Chamber: (1) disciplinary proceedings: (a) involving the Supreme Court judges, (b) heard by the Supreme Court in connection with disciplinary proceedings conducted under the act: - of 26 May 1982 on the Bar ( Prawo o adwokaturze ) ... (2) proceedings in the field of labour law and social security involving the Supreme Court judges; (3) proceedings concerning the compulsory retirement of a Supreme Court judge.” Section 29 “Appointment to judicial office at the Supreme Court shall be carried out by the President of Poland pursuant to a recommendation of the National Council of the Judiciary.” Section 48 “7. A judge of the Supreme Court adjudicating in the Disciplinary Chamber ... shall be entitled to a [additional] allowance equal to 40% of the basic salary and the function allowance jointly. The allowance shall not be due for any period of absence from work due to illness of a judge, unless the total period of such absence does not exceed 30 days in a calendar year.” Section 73 “1. The disciplinary courts in disciplinary cases concerning judges of the Supreme Court shall be: (1) in the first instance – the Supreme Court, composed of 2 judges of the Disciplinary Chamber and 1 lay judge of the Supreme Court; (2) in the second instance – the Supreme Court, composed of 3 judges of the Disciplinary Chamber and 2 lay judges of the Supreme Court.” Section 79 “Labour law and social security cases concerning the Supreme Court judges and cases relating to the retirement of a Supreme Court judge shall be heard: (1) at first instance by one judge of the Disciplinary Chamber of the Supreme Court; (2) at second instance by three judges of the Disciplinary Chamber of the Supreme Court.” Section 89 “1. An extraordinary appeal may be filed against a final decision of an ordinary court or a military court discontinuing proceedings in a case if it is necessary to uphold the rule of law and social justice and: (1) the ruling violates the principles or freedoms and rights of a human being and a citizen laid down in the Constitution, (2) the ruling grossly violates the law through its misinterpretation or misapplication, or (3) there is an obvious contradiction between significant findings of the court and the content of evidence collected in the case – and the ruling may not be reversed or amended under other extraordinary appeals. 2. An extraordinary complaint may be lodged by the Prosecutor General, the [Polish Commissioner for Human Rights] and, within the scope of his competence, the President of the Office of Prosecutor General of the Republic of Poland, the Children’s Rights Ombudsman, the Patient’s Rights Ombudsman, the Chairman of the Financial Supervision Authority, the Financial Ombudsman and the President of the Office for Competition and Consumer Protection. 3. The extraordinary complaint shall be lodged within 5 years from the date on which the appealed decision becomes final, and if a cassation appeal has been lodged – within one year from the date of their examination. It shall be inadmissible to consider an extraordinary appeal to the detriment of the defendant lodged after one year has elapsed from the date on which the ruling has become final, and if a cassation appeal or appeal in cassation has been lodged – after 6 months from the date of its consideration. 4. If five years have passed since the appealed decision became final and the decision has had irreversible legal consequences, or the principles of human and civil liberties and rights set forth in the Constitution speak in favour of it, the Supreme Court may confine itself to stating that the appealed decision was issued in violation of the law and indicating the circumstances due to which it issued such a decision.” Section 97 “1. If the Supreme Court detects an obvious violation of the law when examining a case, regardless of its other prerogatives, it shall issue a finding of error to the relevant court. Before issuing a finding of error, it must inform the judge or the judges of the adjudicating panel of the possibility of submitting written explanations within seven days. The detection of an error and the issuance of a finding of error shall not affect the outcome of the case. ... 3. Whenever a finding of error is issued, the Supreme Court may file a request for a disciplinary case to be examined by a disciplinary court. The disciplinary court of first instance shall be the Supreme Court.” Section 131 “Until all of the judges of the Disciplinary Chamber of the Supreme Court have been appointed, the other judges of the Supreme Court cannot sit within that chamber.” Section 134 “On entry into force of the present Act, the judges sitting in the Labour, Social Security and Public Affairs Chamber of the Supreme Court shall sit in the Labour and Social Security Chamber.” Act on the Ordinary Courts 69. The disciplinary regime for the judges of the ordinary courts is also regulated by the Act on the ordinary courts of 27 July 2001 which was amended, in particular, by the 2017 Act on the Supreme Court (see paragraphs 8 and 9 above). It reads, in so far as relevant, as follows: Section 107(1) “A judge shall be liable to disciplinary action for professional misconduct, including obvious and gross violations of the law and breaches of the dignity of the office (disciplinary offences).” Section 110(3) “The disciplinary court within whose jurisdiction the judge who is the subject of the disciplinary proceedings holds office shall not hear the cases referred to in subsection 1(1)(a). The disciplinary court competent to hear the case shall be designated by the President of the Supreme Court directing the work of the Disciplinary Chamber at the request of the disciplinary officer.” Section 112b “1. The Minister of Justice may appoint a Disciplinary Officer of the Minister of Justice to conduct a specific case concerning a judge. The appointment of a Disciplinary Officer of the Minister of Justice shall preclude another disciplinary officer from acting in the case. 2. The Disciplinary Officer of the Minister of Justice shall be appointed from among the ordinary court judges or the Supreme Court judges. In the case of disciplinary offences having the characteristics of wilful offences prosecuted by public indictment, the Disciplinary Officer of the Minister of Justice may also be appointed from among the public prosecutors indicated by the National Public Prosecutor. In justified cases, in particular if the Disciplinary Officer of the Minister of Justice dies or is unable to perform his duties for a prolonged period, the Minister of Justice shall appoint in his place another judge or, in the case of a disciplinary offence having the characteristics of a wilful offence prosecuted by public indictment, a judge or a public prosecutor. 3. The Disciplinary Officer of the Minister of Justice may initiate proceedings at the request of the Minister of Justice or join ongoing proceedings. 4. The appointment of the Disciplinary Officer of the Minister of Justice is equivalent to a request to initiate investigative or disciplinary proceedings. 5. The function of the Disciplinary Officer of the Minister of Justice shall expire as soon as a ruling refusing to initiate disciplinary proceedings, discontinuing disciplinary proceedings or closing disciplinary proceedings becomes final. The expiry of the office of the Disciplinary Officer of the Minister of Justice shall not preclude the re-appointment by the Minister of Justice of the Disciplinary Officer of the Minister of Justice in the same case.” Section 113a “Activities related to the appointment of ex officio defence counsel and the taking up of the defence by that counsel shall not have a suspensive effect on the course of proceedings.” Section 114(7) “Upon notification of the disciplinary charges, the disciplinary officer shall request the President of the Supreme Court directing the work of the Disciplinary Chamber to designate the disciplinary court to examine the case at first instance. The President of the Supreme Court directing the work of the Disciplinary Chamber shall designate that court within seven days from receipt of the request.” Section 115a(3) “The disciplinary court shall conduct proceedings despite the justified absence of the notified accused or his defence counsel, unless this is contrary to the interests of the disciplinary proceedings being conducted.” Act on the Bar 70. The relevant provisions of the law of 26 May 1982 – “the Act on the Bar” ( prawo o adwokaturze ) read in so far as relevant, as follows: Section 50 “The Disciplinary Court passes judgments in disciplinary cases relating to members of the local Bar Chamber.” Section 81(1) “Disciplinary sanctions shall be as follows: (1) an admonition ( upomnienie ); (2) a reprimand ( nagana ); (3) a fine; (4) suspension from practising law for a period ranging from three months to five years; (5) (repealed); (6) disbarment.” Section 91a “(1) The parties, the Minister of Justice, the Commissioner for Human Rights and the President of the Supreme Bar Council shall be entitled to lodge a cassation appeal with the Supreme Court against a judgment given by the High Disciplinary Court of the Bar in the second instance. (2) The judgment against which the entities referred to in paragraph (1) above are entitled to lodge a cassation appeal shall not be enforced until a cassation appeal has been lodged or until the time-limit for that purpose has expired.” Section 91b “A cassation appeal may be lodged on the ground of a flagrant breach of law, or manifest disproportionality of a disciplinary sanction.” Section 91c “A cassation appeal shall be lodged with the Supreme Court through the High Disciplinary Court within thirty days from the date of delivery of a reasoned judgment.” Section 91d “(1) No court fee shall be due in respect of a cassation appeal referred to in section 91a(1) hereof. (2) The decision against which a cassation appeal has been lodged shall not be enforced until the cassation appeal has been examined. (3) The Supreme Court shall examine a cassation appeal at a hearing before a panel of three judges.” Domestic PracticeThe Supreme Court’s case-law The Supreme Court’s case-law The Supreme Court’s case-law (a) Judgment of 5 December 2019 (case no. III PO 7/180) 71. On 5 December 2019 the Supreme Court, sitting in the Labour and Social Security Chamber, gave judgment in the first of three cases that had been referred for a preliminary ruling to the Court of Justice of the European Union (“CJEU”), the subject of a judgment of 19 November 2019 (case C ‑ 585/18; see paragraph 48 above and paragraphs 162-164 below). 72. As regards its jurisdiction to examine the compatibility of domestic laws with European Union (“EU”) law, and its role as a court applying EU binding legislation, the Supreme Court noted as follows [1] : “32. It must be stressed that Article 91 § 3 of the Constitution of the Republic of Poland directly empowers the Supreme Court to examine the compatibility of statutes such as the ASC and the Act on the National Council of the Judiciary with Union law. That provision directly implies, with no reservation or limitation, that statutes have to be compatible with Union law and the Convention, and not the other way around. The jurisdiction to review the compatibility of statutes with Union law rests, according to the Constitution of the Republic of Poland, not with the Constitutional Court but, as a condition of Union accession, with any Polish court examining a case falling within an area covered by Union law.” 73. As regards the Constitutional Court’s judgment of 20 June 2017 (see paragraph 109 below), the Supreme Court held: “33... In that judgment, the [Constitutional Court] called into question its earlier position taken in the judgment of 18 July 2007, K 25/07 ..., to the effect that NCJ members must be judges elected by other judges. This implies that, in the absence of any amendment to the Constitution, the Constitutional Court not so much changed its position as regards appointment to the NCJ (judgment in K 5/17 vs. judgment in K 25/07) as created a divergence in its case-law regarding systemic issues of fundamental importance to the enforcement of the right to a fair trial enshrined in the national constitution and fundamental obligations of member States of the European Union, as a Union (community) of law. In that context, the two judgments of the Constitutional Court are evidently in conflict with each other. The interpretation offered in K 5/17 is not supported by legal theory, which considers that judgment to be a manifestation of a constitutional crisis, as it was passed by a formation that included two members appointed to non-vacant positions of judges ... One should also consider information in the public domain, including statements of those members of the Constitutional Court, concerning various dependencies and informal relations with politicians, which implies that the Constitutional Court cannot be considered to safeguard independence in the exercise of its constitutional powers (Article 195 of the Constitution of the Republic of Poland).” 74. As regards the standards set out in the preliminary ruling of the CJEU, the Supreme Court held, in so far as relevant, as follows: “35. The CJEU judgment of 19 November 2019 sets a standard which includes a comprehensive assessment of safeguards of the right to a fair trial by an independent and impartial court. Such assessment follows a two-step rule: (a) assessment of the degree of independence enjoyed by the National Council of the Judiciary in respect of the legislature and the executive in exercising the responsibilities attributed to it under national legislation, as the body empowered to ensure the independence of the courts and of the judiciary, as relevant when ascertaining whether the judges which it selects will be capable of meeting the requirements of independence and impartiality arising from Article 47 of the Charter of Fundamental Rights (judgment in C ‑ 585/18, §§ 139 ‑ 140); (b) assessment of the circumstances in which the new judges of the Disciplinary Chamber of the Supreme Court were appointed and the role of the Council in that regard (judgment in C-585/18, § 146) ... 37. Following the guidance provided in the CJEU judgment of 19 November 2019, C ‑ 585/18, one should in the first place consider the circumstances concerning the National Council of the Judiciary. That assessment requires no evidential proceedings; in any case, such proceedings would be beyond the remit of the Supreme Court and consist in the consideration of positions that are publicly known and available to all parties to the proceedings. 38. With respect to the National Council of the Judiciary, the CJEU judgment of 19 November 2019 requires the examination of the following: (-) the objective circumstances in which that body was formed; (-) the means by which its members have been appointed; (-) its characteristics; (-) whether the three aforementioned aspects are capable of giving rise to legitimate doubts, in the minds of subjects of the law, as to the imperviousness of that court to external factors, in particular, as to the direct or indirect influence of the legislature and the executive and its neutrality with respect to the interests before it.” 75. The Supreme Court further underlined its role as an EU court implementing the CJEU judgment: “39. ...[T]he Supreme Court categorically declares (once again) that, acting as a Union court in the enforcement of the CJEU judgment of 19 November 2019, it does not examine the constitutionality of the provisions of the Act on the National Council of the Judiciary in the wording effective as of 2018 but their compatibility with Union law. The Supreme Court has the jurisdiction to undertake such examination not only in the light of uniform well-established case-law (cf. CJEU judgment of 7 September 2006, C-81/05) but also under the unequivocal powers vested in it by the Constitution which require no complex interpretation in the case in question. Article 91 § 3 of the Constitution of the Republic of Poland provides clearly and beyond any doubt: ‘If an agreement, ratified by the Republic of Poland, establishing an international organisation so provides, the laws established by it shall be applied directly and have precedence in the event of a conflict of laws.’ Furthermore, the examination of how the applicable provisions governing the functioning of the Council and its practice in the performance of functions under the Constitution of the Republic of Poland and provisions of national law influence the fulfilment of the requirements of independence and impartiality under Union law by a court formed with the participation of the Council represents a typical judicial examination of certain facts and provisions of law. It should be recalled once again that such examination is completely unrelated to the jurisdiction vested in the Constitutional Court by the Constitution of the Republic of Poland and the Act on the Constitutional Court.” 76. With respect to the circumstances surrounding the setting-up of the new NCJ and the role of the Constitutional Court’s judgment of 20 June 2017 in that context, the Supreme Court noted: “40. [As regards the circumstances under which the Council was established], one should bear in mind the shortened term of the previous Council (a constitutional body pursuant to Article 187 § 3 of the Constitution of the Republic of Poland): Article 6 of the [2017 Amending Act]. As intended by the legislature, the new provisions were to ensure conformity with the Constitution of the Republic of Poland in connection with the Constitutional Court judgment of 20 June 2017 (K 5/17...), pursuant to which section 11(2-4) and section 13(3) of the NCJ Act are in breach of the Constitution to the extent that they provide for the individual term of office for Council members who are judges. To that end, the Supreme Court concludes that the referenced Constitutional Court ‘judgment’ was issued with the participation of judges elected in breach of Article 190 § 1 of the Constitution of the Republic of Poland, as ascertained under the following judgments of that court: 16 December 2015, K 34/15 ...; 9 March 2016, K 47/15 ...; 11 August 2016, K 39/16 ...” 77. With respect to the change in the manner of election of the fifteen judicial members of NCJ the Supreme Court held: “43. The mechanism for electing NCJ members was considerably modified pursuant to [the 2017 Amending Act]. Pursuant to section 1(1), Sejm shall elect fifteen Council members for a joint four-year term of office from among judges of the Supreme Court, ordinary courts, administrative courts, and military courts. When making its choice, Sejm shall – to the extent possible – recognise the need for judges of diverse types and levels of court to be represented on the Council. Notably, the provisions of the Constitution of the Republic of Poland have not been amended in respect of NCJ membership or NCJ member appointment. This means that a statute could only lawfully amend the manner of election of Council members (judges) by judges rather than introducing a procedure whereby NCJ judicial members are elected by the legislature. The aforementioned amendment to the NCJ Act passed jointly with the new Act on the Supreme Court provides a solution whereby the legislature and the executive – regardless of the long statutory tradition of a part of the Council members being elected by judges themselves, thus reflecting the Council’s status and mandate, and those of the judiciary recognised as a power separate from other authorities under the Constitution of the Republic of Poland – gain a nearly monopolistic position in deciding on NCJ membership. Today, the legislature is responsible for electing 15 members of the NCJ who are judges, with another 6 NCJ members being parliamentary representatives (4 and 2 of whom are elected by Sejm and the Senate, respectively). The new mechanism of electing NCJ members who are judges has resulted in the decision to appoint as many as twenty-one of the twenty-five (84%) of Council members lying with both parliamentary houses. Furthermore, the Minister of Justice and a representative of the President of the Republic of Poland are ex officio Council members: consequently, twenty-three of the twenty-five Council members are ultimately appointed by authorities other than the judiciary. This is how the division and balance of the legislative, executive, and judiciary branches have been distorted, while having been duly described under Article 10 of the Constitution of the Republic of Poland as a foundation of a democratic state of law model (Article 2 of the Constitution of the Republic of Poland). 44. Since Sejm and the Senate are responsible for electing from among their respective members, judges representing various levels shall elect Council members from among individuals applying as candidates. In consequence, the checks and balances rule anchored in Article 10 of the Constitution of the Republic of Poland will also be adhered to, in support of the process of rationalising the parliamentary governance system.” 78. As regards the submission of candidatures, candidate endorsement lists, the election to the NCJ and the non-disclosure of the endorsement lists, the Supreme Court held: “45. The Supreme Court’s appraisal in acting on the binding legal interpretation expressed in the CJEU’s judgment of 19 November 2019 attaches considerable importance to the process of electing present-day Council members. With regard to this particular matter, the point at issue concerns the endorsement lists that were apparently offered to candidates by judges. To date, it has not been verified whether new Council members were lawfully nominated as candidates, or who endorsed them. Relevant documents have not been disclosed yet, despite the relevant judgment of the Supreme Administrative Court of 28 June 2019, OSK 4282/18 ... It is common knowledge that the enforcement of the judgment has faced an obstacle in a decision issued by the Chair of the Personal Data Protection Authority on 29 July 2019 on the initiative of a new NCJ member. Consequently, it has come to pass that a body of the judiciary responsible for a review of administrative authorities has in effect itself fallen under the review of the latter. The failure to implement the Supreme Administrative Court’s judgment justifies an assumption that the content of the lists of endorsement for individual judicial candidates for the NCJ corroborates the dependence of candidates on the legislature or the executive. 46. The Supreme Court further concludes that it is common knowledge that the public had been informed of judicial candidates to the Council having been recommended by presidents of district courts appointed by the Minister of Justice; other judges were recommended by judges dependent on (reporting to) candidates in managerial positions in courts of higher instance; judicial Council candidates were also recommended by the plenipotentiary of the Institute of the Judiciary at the Ministry of Justice; last but not least, some candidatures were submitted by the next of kin; candidates recommended other candidates; some of the elected members of the future Council were Ministry of Justice employees. All these facts prove that the executive branch – acting through its direct or indirect subordinates – had stood behind the majority of recommendations for NCJ judicial member candidatures. Such circumstances accompanying the process of electing current Council members may well raise doubts among the general public as to the Council’s independence from the executive. 47. Furthermore, persons submitting endorsement forms would withdraw them before the expiry of the candidature submission term; at least one new NCJ member had endorsed his/her own application ... 48. Such circumstances preclude the notion of representativeness stipulated in Article 187 § 2 of the Constitution of the Republic of Poland....” 79. The Supreme Court further pointed out that some members of the NCJ had become beneficiaries of the Government’s reorganisation of the judiciary: “49. Practice also shows that elected Council members have directly benefitted from recent changes. They have been appointed to managerial positions at courts whose presidents and vice-presidents have been dismissed ad hoc, or applied for promotion to a court of higher instance ... The general public may also learn of various dependencies between elected judges – new Council members and the executive branch ...” 80. As regards the manner in which the NCJ exercised its constitutional duty of safeguarding the independence of the judiciary, the Supreme Court made the following findings: “50. The fourth test component is the important assessment of how the body performs its constitutional duty to safeguard the independence of courts and judges; and how it performs its competencies, and in particular whether it proceeds in a manner that could render its independence from the legislature and the executive doubtful from the vantage point of a member of the public. With regard to the aforementioned premises, the following arguments ought to be raised: the National Council of the Judiciary failed to take action in defence of the independence of the Supreme Court or of the Court’s judges after the coming into force of the Act on the Supreme Court and an attempt to force the Court’s judges into retirement (see the CJEU’s judgment of 24 June 2019, C-619/18). The Supreme Court further emphasises that Council members have publicly demanded that disciplinary action be taken against judges filing preliminary rulings ...; have challenged the right to file preliminary rulings ... and have challenged the necessity of ‘apologising to justices for corruption comments.” 81. The Supreme Court reached the following conclusion as regards the NCJ: “60. On the basis of an overall assessment of the above circumstances, the Supreme Court concludes that, as of this day, the National Council of the Judiciary does not provide sufficient guarantees of independence from the legislative and executive authorities in the judicial appointment procedure.” 82. This conclusion was the starting point for its assessment of whether the Disciplinary Chamber could be considered an “independent and impartial tribunal established by law”: “61. The foregoing is the point of departure for assessing whether the Disciplinary Chamber of the Supreme Court (hereinafter ‘IDSN’) is an impartial and independent tribunal within the meaning of Article 47 of the Charter and Article 6 of the Convention, and ... although this is not expressly assessed in the present case, whether it can be [considered] a court pursuant to domestic law. As in the case of the NCJ, only the cumulative fulfilment of the conditions indicated by the Court of Justice of the EU may lead to certain negative consequences in the assessment of the status of the IDSN as a court. ... 64. Firstly, the ‘IDSN’ was created from scratch. For the purposes of the present case, it must be emphasised that, in accordance with the applicable section 79 of [the 2017 Act on the Supreme Court] it became competent in labour and social security legal matters concerning judges of the Supreme Court and matters concerning the retirement of judges of the Supreme Court. In this area, previously, the ordinary courts and the Labour, Social Security, and Public Affairs Chamber (now the Labour and Social Security Chamber) were competent. It should be noted that [the 2017 Act on the Supreme Court] introduced a change which deprived judges of the Supreme Court of the right to two-instance court proceedings. At present, an appeal may be lodged only with another panel of the Disciplinary Chamber ...” 83. The Supreme Court noted who had been appointed as judges to this Chamber: “66... it should be noted that only persons with very strong connections to the legislative or executive power have been elected to the IDSN, and this, in turn, may raise objective doubts for individuals with regard to the obligation to secure the right to an independent and impartial tribunal....It should be recalled that persons appointed to the Chamber are those who were previously subordinate to the executive power or who, in the course of the crisis concerning the rule of law covered by the procedure under Article 7 [TEU], acted on instructions from or in a manner consistent with the expectations of the political authorities. Selecting only such candidates as judges of the Supreme Court does not guarantee their independence and thus does not allow for the constitution of an independent court. Among the elected members of the Disciplinary Chamber are: the director of a department in the State Prosecutor’s Office; a deputy regional prosecutor in the Regional Prosecutor’s Office (appointment in 2016); the director of the legislative office of the National Institute of Remembrance (IPN); the prosecutor of the State Prosecutor’s Office, who accused judges of corruption but ultimately the proceedings in this case were discontinued; the former governor and adviser to the Speaker of Sejm; a person known in the legal community exclusively for his activity in the mass media and social media, who in recent times has repeatedly expressed his unequivocal political sympathies; a prosecutor whose procedural actions were found to have violated Article 3 of the Convention (prohibition of torture) as a result of a settlement before the Court (application no. 32420/07).” 84. The Supreme Court also examined the appointment process and considered that there had been no effective appeal procedure against the resolutions of the NCJ recommending the judges. It held: “67. Fourthly, the conditions of the competition procedure were changed in the course of that procedure. [The amendments to the domestic law] removed the obligation on the person seeking a recommendation by the NCJ to submit the required documents (professional experience, academic achievements, opinions of superiors, recommendations, publications, opinion of the collegium of the competent court and the assessment of the competent assembly of judges). Such documents may be crucial when there are more candidates for a judicial post than places. This was the case for candidates to the Disciplinary Chamber, where over 90 candidates applied for sixteen seats. ... the amendment further introduced the principle that if resolutions in individual cases concerning appointment to the Supreme Court are not challenged by all participants to the proceedings, it becomes final in the part concerning the decision to present a motion for appointment to the office of judge of the Supreme Court. This type of solution eliminates the possibility of an effective appeal of a candidate against a resolution of the NCJ to the relevant court ... ... 72. ...Currently, the legislator has abandoned the aforementioned standards of non-binding substantive control of candidates for the position of a judge of the Supreme Court by the community of judges of the Supreme Court. If one combines this procedure (elimination of the Supreme Court from participation in the procedure for filling the posts of its judges) with the ‘new’ solutions serving to select members of the National Council of the Judiciary, it becomes clear that assessment of the independence and impartiality of the composition of the new chamber of the Supreme Court thus selected, measured – as the CJEU indicates – by the ‘conviction of an individual’, is problematic.” 85. The Supreme Court further analysed the legal framework of the Disciplinary Chamber, its competences and certain activities: “73. Sixthly, this Chamber is given wide autonomy and a special status as an extraordinary court, which can only be established for times of war, and which is only ostensibly (by name) part of the structure of the Supreme Court. This problem has been described in detail in legal commentary ... The Chamber was established in the structure of the Supreme Court as a court of first instance: (a) in disciplinary cases of judges of the Supreme Court; (b) in labour and social security cases concerning the Supreme Court judges; (c) in cases concerning the retired status of a judge of the Supreme Court. Subsequently, the legislator made the IDSN a court adjudicating as a court of first and sole instance in cases involving appeals against decisions of corporate bodies, adjudicating in disciplinary matters regarding legal professions (section 27(1) point 1(b)). In the remaining scope this Chamber acts as a second instance court in disciplinary cases concerning judges of ordinary courts and prosecutors (Section 27(1) point 1(b)). In addition, its organisational and financial autonomy points to a number of distinctions, despite remaining within the structure of the Supreme Court.... 75. Seventhly, actions taken by the DCSC ought to be considered as well; such activities were intended to cause the withdrawal of referrals for a preliminary ruling [to the CJEU]; prior to their appointment, persons currently adjudicating in the Chamber publicly criticised questions referred for a preliminary ruling by the Supreme Court. After the CJEU judgment of 19 November 2019, the Disciplinary Chamber flagrantly continued operating, before any decision resolving the matter referred for a preliminary ruling – as to its status as a court within the meaning of EU law ‑ had been given.” 86. The Supreme Court reached the following conclusion regarding the Disciplinary Chamber: “79. In sum, each of the circumstances presented, when assessed alone, is not conclusive of a failure to comply with the standard of Article 47 of the [Charter of Fundamental Rights of the European Union] (Article 6 of the Convention in conjunction with Article 45 § 1 of the Polish Constitution). However, when all these circumstances are put together – the creation of a new organisational unit in the Supreme Court from scratch, staffing of this unit exclusively with new persons with strong connections to the legislative and executive powers and who, prior to their appointment, were beneficiaries of the changes to the administration of justice, and were selected by the NCJ, which does not act in a manner independent of the legislature and the executive, and its broad autonomy and competences taken away from other courts and other chambers of the Supreme Court – it follows clearly and unequivocally that the Disciplinary Chamber of the Supreme Court is not a tribunal within the meaning of Article 47 of the Charter, Article 6 of the Convention and Article 45 § 1 of the Polish Constitution”.... In view of the above conclusions, the Supreme Court decided not to transfer the case to the Disciplinary Chamber of the Supreme Court and quashed the resolution of the NCJ given in the case: “88. In conclusion, the Supreme Court holds that the National Council of the Judiciary in its current composition is not an impartial body and is not independent of the legislative and executive powers and therefore the resolution adopted by it should be quashed. Accordingly, the Supreme Court has decided as set out in the operative part of the ruling.” (b) Resolution of 8 January 2020 (case no. I NOZP 3/19) 87. On 8 January 2020 the Chamber of Extraordinary Review and Public Affairs of the Supreme Court issued a resolution of seven judges ( uchwała; see paragraph 49 above). The Supreme Court found that a resolution of the NCJ recommending to the President candidates for the post of judge could be quashed upon an appeal by a candidate, provided that the appellant proved that the lack of independence of the NCJ had adversely affected the content of the impugned resolution, or provided that the appellant demonstrated that the court had not been independent or impartial according to the criteria indicated in the CJEU judgment. In respect of the latter, the court stressed that the Constitution had not allowed for a review of the effectiveness of the President’s decision concerning the appointment of judges. When dealing with such appeals the Supreme Court was bound by the scope of the appeal and had to examine whether the NCJ had been an independent body according to the criteria determined in the CJEU judgment 19 November 2019 (in paragraphs 134 ‑ 144 thereof). (c) Rulings of 15 January 2020 (case nos. III PO 8/18 and III PO 9/18) 88. On 15 January 2019 the Supreme Court gave two rulings in two remaining cases that had been referred for a preliminary ruling to the CJEU (cases C-624/18, C-625/18). The court decided not to transfer the cases to the Disciplinary Chamber of the Supreme Court and remitted them for consideration to the District Court. The Supreme Court ruled that the Disciplinary Chamber was not an independent and impartial tribunal, given the conditions of its creation, the scope of its powers, its composition and the involvement of the NCJ in its constitution. (d) Resolution of 23 January 2020 (case no. BSA I-4110-1/20) 89. In the wake of the Supreme Court’s judgment of 5 December 2019, and the resolution of 8 January 2020 by the Chamber of Extraordinary Review and Public Affairs of the Supreme Court (see paragraphs 71-87 above), the First President of the Supreme Court decided that it was necessary to issue an interpretative resolution in a formation of the joined Chambers of that court “to resolve divergences in the interpretation of the law existing in the case-law of the Supreme Court concerning the legal question” arising in connection with the interpretation of the CJEU judgment of 19 November 2019. On 23 January 2020 the joined Chambers of the Supreme Court (fifty-nine judges of the Civil, Criminal and Labour and Social Security Chambers) issued an interpretative resolution on a request from the First President of the Supreme Court. It concluded that, as a result of the 2017 Amending Act, the NCJ was no longer independent and that a judicial formation including a person appointed as a judge on the recommendation of the NCJ was contrary to the law. These conclusions, in so far as relevant, read as follows [2] : “1. A court formation is unduly composed within the meaning of Article 439 § 1 (2) of the Code of Criminal Procedure, or a court formation is inconsistent with the provisions of law within the meaning of Article 379 § 4 of the Code of Civil Procedure, also where the court includes a person appointed to the office of judge of the Supreme Court on the recommendation of the National Council of the Judiciary in accordance with the [2017 Amending Act]. 2. A court formation is unduly composed within the meaning of Article 439 § 1 (2) of the Code of Criminal Procedure, or a court formation is inconsistent with the provisions of law within the meaning of Article 379 § 4 of the Code of Civil Procedure, also where the court includes a person appointed to the office of judge of an ordinary or military court on the recommendation of the National Council of the Judiciary formed in accordance with the [2017 Amending Act], if the deficiency of the appointment process leads, in specific circumstances, to a violation of the guarantees of independence and impartiality within the meaning of Article 45 § 1 of the Constitution of the Republic of Poland, Article 47 of the Charter of Fundamental Rights of the European Union and Article 6 § 1 of the [Convention]. 3. The interpretation of Article 439 § 1 (2) of the Code of Criminal Procedure and Article 379 § 4 of the Code of Civil Procedure provided in points 1 and 2 above shall not apply to judgments given by courts before the date hereof and judgments to be given in proceedings pending at the date [of the present resolution] under the Code of Criminal Procedure before a given court formation. 4. Point 1 [above] shall apply to judgments issued with the participation of judges appointed to the Disciplinary Chamber of the Supreme Court under [the 2017 Act on the Supreme Court] irrespective of the date of such judgments.” 90. The Supreme Court’s resolution contained an extensive reasoning, the relevant parts of which are rendered below. 91. The Supreme Court first defined the scope of the resolution. It held, in so far as relevant: “11... in the present resolution, the Supreme Court must address the question whether participation in a formation of an ordinary court, a military court or the Supreme Court, ..., of a person appointed as a judge by the President of the Republic of Poland following the procedure defined in the [2017 Amending Act] causes a breach of the standards of independence and impartiality of the court which would be inadmissible under Article 6 § 1 of the Convention, Article 45 § 1 of the Constitution of the Republic of Poland, and Article 47 of the Charter and, if that is the case, it must define the procedural effect on the administration of justice under such circumstances ... To determine under Article 6 § 1 [of the Convention] and Article 47 of the Charter that a case is heard by a court which is impartial and independent, established by law, it is necessary to examine the process of judicial appointment in the national judicial system in order to establish whether judges can adjudicate independently and impartially ...” 92. The Supreme Court reiterated the fundamental rules for appointment of judges in Poland: “31. In the light of Article 179 of the Constitution of the Republic of Poland, the President of the Republic of Poland appoints to the office of judge not just anyone, at his sole discretion as to the candidate’s qualifications and ability to hold office, but exercises that power on a motion of the [NCJ]. Therefore, a motion of the [NCJ] is a condition sine qua non for effective appointment. Moreover, a motion concerning a judicial appointment cannot be lodged by anyone except a body acting as the [NCJ], not only in name but based on the procedure of its appointment and the conditions under which it exercises its powers (decision of the Constitutional Court of 23 June 2008, 1 Kpt 1/08).” 93. As regards a breach of Article 187 § 1 (2) of the Constitution, resulting from the change to the appointment process in respect of fifteen judicial members of the NCJ, the Supreme Court held: “31. ... New members of the [NCJ] were appointed by Sejm of the Republic of Poland in accordance with [the 2017 Amending Act] which stood in conflict with Article 187 § 1 (2) of the Constitution of the Republic of Poland. That provision removed the requirement for judges sitting as members of the [NCJ] to be appointed by judges, .... The Constitution does not allow for that power to be implicitly granted to Parliament. After [the 2017 Amending Act], fifteen members of the [NCJ] who were judges were appointed by Sejm of the Republic of Poland for a joint four-year term of office (section 9a(1) of [the 2011 Act on the NCJ as amended by the 2017 Amending Act]). None of them is a judge of the Supreme Court, as is required under Article 187 § 1 (2) of the Constitution of the Republic of Poland. In view of the procedure of appointment of judges to the [NCJ] under [the 2017 Amending Act], the judiciary no longer has control over the membership of the [NCJ] or, indirectly (in connection with amendments of other systemic provisions), over which candidates are proposed to the President for appointment to the office of judge of an ordinary court, a military court, the Supreme Court, or an administrative court. The [NCJ] is dominated by political appointees of the majority in Sejm. Following the appointment of 15 judges to sit as members of the [NCJ] by Sejm, as many as 21 out of the 25 members of the [NCJ] are political appointees of both Houses of Parliament. Following the appointment of judges to the [NCJ], judges sitting as members of the [NCJ] no longer represent judges of the Supreme Court, judges of ordinary courts, administrative courts, or military courts, as required under Article 187 § 1 (2) of the Constitution of the Republic of Poland. Judges sitting as members of the [NCJ] by political appointment have no legitimacy as representatives of the judicial community, who should have authority and remain independent of political influence. That has largely weakened the role of the [NCJ] as a guardian of the independence of courts and judges.” 94. As regards a breach of Articles 10 § 1, 173 and 178 and 187 §§ 1 and 3 of the Constitution, the Supreme Court held: “31. ...The provisions of the [2017 Amending Act] governing the appointment of judges to the [NCJ] are inconsistent with the principle of division and balance of powers (Article 10 § 1 of the Constitution of the Republic of Poland) and the principle of separation and independence of courts (Article 173 of the Constitution of the Republic of Poland) and independence of judges (Article 178 of the Constitution of the Republic of Poland). The principle of separation of the judiciary is of crucial relevance in this context. According to that principle, based on the division and balance of powers, the legislature and the executive may interfere with the functioning of the judiciary only to the extent allowed by the Constitution of the Republic of Poland, that is, where expressly provided for in the Constitution. With respect to the National Council for the Judiciary, the principle of separation implies that the legislature and the executive may influence the membership and functioning of the National Council for the Judiciary only to the extent expressly provided for by the Constitution of the Republic of Poland (Article 187 § 1 (1) in fine, Article 187 § 1 (3) ‑ (4)). Consequently, in determining the system, responsibilities and rules of procedure of the [NCJ] (Article 187 § 4 of the Constitution of the Republic of Poland), the legislature cannot exercise the power to appoint judges to sit as members of the [NCJ], which is not provided for in the Constitution of the Republic of Poland because its power to appoint members of the [NCJ] are defined in the Constitution (Article 187 § 1 (3) of the Constitution of the Republic of Poland). The termination of the mandate of previous members of the [NCJ] and the appointment of new members of the [NCJ] in accordance with the Act of 8 December 2019 amending the Act on the [NCJ] raises serious doubts as to compliance with Article 187 §§ 1 and 3 of the Constitution of the Republic of Poland and, consequently, doubts as to the legality of the [NCJ] and the appointment of candidates to the post of judge with the participation of the [NCJ].” 95. The Supreme Court further analysed the procedure of election of judicial members of the NCJ and held, in so far as relevant, as follows: “Shaped by [the 2017 Amending Act], the procedure for the election of judges to that body resulted in the judicial authority losing any influence over its composition, and thus indirectly – also in connection with the amendments to other systemic laws – also on the candidates presented to the President for appointment to the position of ordinary court judge, military court judge, Supreme Court judge and administrative court judges. The National Council of the Judiciary has been dominated by politically elected members of the parliamentary majority. After the selection by Sejm of fifteen judges as members of the National Council of the Judiciary, as many as twenty-one of the twenty-five persons comprising the Council come from the political nomination of both chambers of Parliament. As a result of the election of judges to the National Council of the Judiciary, the judges sitting on that body ceased to be a group representing judges of the Supreme Court, ordinary courts, administrative courts and military courts, as provided by Article 187 § 1 (2) of the Constitution. The judges sitting on it as a result of political nomination were not therefore given a mandate to represent the judiciary, a task which should be entrusted to persons enjoying authority and independence from political influence. This has resulted in a fundamental weakening of the role of the National Council of the Judiciary as a guardian of the independence of courts and judges.” 96. In respect of the endorsement lists for candidates for the NCJ, the Supreme Court observed: “32. The [2017 Amending Act] changed the procedure for the appointment of judges sitting as members of the [NCJ] as follows. Authorisation to nominate a candidate to serve as member of the Council shall be granted to a group of at least: (1) two thousand citizens of the Republic of Poland who are over 18 years of age, have full legal capacity and enjoy full public rights; (2) twenty-five judges other than retired judges ... Endorsement lists presented by judges running as candidates for the [NCJ] had to be signed not just by anyone, but by judges.... A request for information concerning persons who signed the lists of endorsement of judges running as candidates to the [NCJ], according to regulations governing access to public information, confirmed as legitimate by a legally binding judgment of the National Administrative Court of 28 June 2019, I OSK 4282/18, dismissing a cassation appeal of the Head of the Chancellery of Sejm of the Republic of Poland concerning the judgment annulling the decision on the extent of refusal to disclose such information, has been disregarded by the Head of the Chancellery of Sejm of the Republic of Poland and the Speaker of Sejm, who have refused to comply with the legally valid judgment. That state of affairs has prevailed to date ... According to a published statement of [Judge M.N.], appointed as a member of the [NCJ], he signed his own endorsement list. According to a published statement of four judges, [Judge M.N.] used withdrawn endorsements to run as a candidate for the [NCJ]. The endorsements were withdrawn long before the list was verified and used in a vote; the Speaker of Sejm was given advance notice of the circumstance (on 25 January 2018). ... If candidates for the [NCJ] signed each other’s endorsement lists, that is indicative of the scale of endorsement for the members of the [NCJ] in the judicial community ...” 97. As regards a breach of Article 144 § 2 of the Constitution in that the President’s act announcing vacant positions in the Supreme Court was issued without a countersignature of the Prime Minister, the Supreme Court held: “34. Section 31(1) of [the 2017 Act on the Supreme Court] deprived the First President of the Supreme Court of the power to announce vacant positions of judges of the Supreme Court and vested that power in the President of the Republic of Poland. The new legal power is not enumerated in Article 144 § 3 of the Constitution of the Republic of Poland as one of the 30 prerogatives; therefore, it is evident that the publication in Monitor Polski [Official Gazette] of an announcement concerning the number of vacant judicial positions in chambers of the Supreme Court requires a countersignature of the Prime Minister. Under Article 144 § 2 of the Constitution of the Republic of Poland, official acts of the President other than the prerogatives shall require, for their validity, the countersignature of the Prime Minister. The power to announce vacant judicial positions in the Supreme Court vested in the President of the Republic of Poland under the 2017 Act on the Supreme Court cannot be considered a prerogative derived from the prerogative of appointing judges (Article 144 § 3 (17) of the Constitution of the Republic of Poland) ... Such a defective announcement by the President of the Republic of Poland could not initiate a non-defective procedure of appointment for judicial positions at the Supreme Court ...” 98. As regards the fact that the President of Poland proceeded with the appointments to the Supreme Court notwithstanding pending appeals against the NCJ’s resolutions recommending candidates, the Supreme Court found as follows: “35. The requirement of holding a competition procedure before the [NCJ] for the selection of a candidate for the office of a judge to be presented to the President of the Republic of Poland not only creates conditions of fair competition for candidates for public office but, in particular, ensures that the office goes to the person best positioned to hold it. The [Act of 20 July 2018 amending the Act on Organisation of Ordinary Courts] eliminated the requirement for the [NCJ] to consider, when drawing up a list of candidates recommended for appointment to the office of a judge, opinions on candidates issued by panels of the relevant courts and appraisals issued by relevant general assemblies of judges. That was a reaction to the behaviour of judicial self-government bodies which refused to exercise their powers in defective proceedings before the [NCJ]. Instead of eliminating the broadly criticised defects of the system it had devised, the legislature decided to eliminate from the system the last options of participation in the procedure of judicial appointments previously left for judicial self-government bodies. [Section 44 of the 2011 Act on the NCJ as in force after of 27 July 2018], without formally eliminating the option for participants in the competition procedure for the office of judge of the Supreme Court to lodge an appeal on grounds of an unlawful resolution of the [NCJ], provides that, unless a resolution in an individual case concerning appointment to the office of judge of the Supreme Court is appealed against by all participants in the procedure, it becomes legally valid ... All resolutions of the [NCJ] naming candidates for the office of a judge of the Supreme Court were appealed. The [NCJ] ignored the appeals and presented selected candidates for judicial positions to the President of the Republic of Poland ... As the resolutions were appealed against, the vacant judicial positions were filled defectively and the fitness of candidates for office was in fact never duly checked ... Despite the pending judicial review of the resolutions of the [NCJ] concerning all candidates for the Supreme Court and despite the decisions of the Supreme Administrative Court suspending the effect of the resolutions concerning the candidates for the Civil Chamber, the Criminal Chamber, and the Extraordinary Review and Public Affairs Chamber, being aware of the effect of his decisions that would be difficult to reverse de lege lata, the President of the Republic of Poland presented appointments to the persons named in the resolutions of the [NCJ] and the appointees accepted the appointments.” 99. As regards the question whether the NCJ had been duly appointed, the Supreme Court concluded as follows: “36. ... The President appoints judges, but he does so not just at any time or at his own discretion but on a motion of the [NCJ]. No appointment may be granted to anyone who is not concerned by such motion (cf. the decision of the Constitutional Court of 23 June 2008, 1 Kpt 1/08). The minimum conditions for the exercise of the prerogative in question by the President of the Republic therefore require that his action be initiated by a duly constituted and composed body having the status of the National Council of the Judiciary. Since [entry into force of the 2017 Amending Act and the 2017 Act on the Supreme Court], the [NCJ] has not been duly appointed under the Constitution of the Republic of Poland; consequently, the [NCJ] could not exercise its powers, which the President of the Republic of Poland should have determined before exercising his prerogative. Persons named in the lists of recommendations drawn up in a defective procedure of appointment for judicial positions cannot be considered to have been candidates for office duly presented to the President of the Republic of Poland whom the President is competent to appoint to the office. Even assuming that the issuance of letters of appointment to such persons renders them formally appointed to the office of judge, it is necessary to determine whether and to what extent such persons may exercise judicial functions, so that the requirement of impartiality and independence of a court administering justice is not thereby infringed.” 100. The Supreme Court also made the following observations regarding political influence on the election of the NCJ members: “38. The procedure for appointment to the office of judge has a particular bearing on whether the court comprised of such appointees may be considered an impartial and independent tribunal in a given case. Any criteria of appointment other than substantive ones would suggest that the judge is affiliated with a political option or group. The more political the appointment procedure, i.e., the more the appointment decision comes directly from politicians or representatives of political authorities, the less transparent and more arbitrary, or even unlawful, the decision-making procedure will be. That seriously, and irreversibly, undermines the trust of the general public in a judge as an independent person free of external influence and pressure or the willingness to show gratitude to such groups. Consequently, individual judges in the system of the judiciary could become permanently identified with specific political groups or groups of interest (‘our judges’ v. ‘their judges’) and their legitimacy would be contested by each new parliamentary majority. That is clearly in conflict with the individual’s right to hearing of his case by an independent court as the stability of court decisions would hinge on changes of the country’s political majority. In this context, it should be noted that, according to the official statement of the Minister of Justice issued in the legislative procedure on 15 January 2020 at the Senate of the Republic of Poland, the membership of the [NCJ] was determined in such a way as to ensure that it was comprised of persons loyal to the parliamentary majority (the political group represented by the Minister of Justice): ‘each group could propose judges they are accountable for. We have proposed judges who we thought were willing to co-operate with the judicial reform’ – transcript of the third session of the Senate of the Republic of Poland of the 10 th term, 15 January 2020). Consequently, appointments granted by the [NCJ] are systemically not independent of political interest, affecting the fulfilment of the objective criteria of impartiality and independence by persons appointed to the office of a judge on the motion of the [NCJ]. In other words, because the [NCJ] has been politicised, competitions for judicial positions are very likely to be decided not based on substantive criteria but depending on political loyalties or support for the reform of the judiciary pursued by the parliamentary majority in conflict with the Constitution of the Republic of Poland ... 39. Significant influence exerted by the Minister of Justice, who is also Prosecutor General, on the membership of the [NCJ] (confirmed in his aforementioned official statement in the Senate of the Republic of Poland) and consequently on decisions of that body concerning judicial appointments, undermines the objective conditions of impartiality in cases where a person so appointed for the position of a judge were to participate in the court formation while the Prosecutor General or the public prosecutor’s office headed by the Prosecutor General were a party to such proceedings. 40. Defective competitions for the office of a judge carried out by the [NCJ], which is structurally no longer independent, took place under conditions of long-term intentional steps taken by representatives of the executive and the legislature seeking to generally undermine trust in the courts, their impartiality and independence ...” 101. As regards the lack of independence of the NCJ, the Supreme Court fully endorsed the conclusions in the judgment of 5 December 2019 and held: “42. The formation of the Supreme Court passing the present resolution fully shares the position presented in the judgment of the Supreme Court of 5 December 2019, III PO 7/18 to the effect that the [NCJ] so formed is not an independent body but a body subordinated directly to political authorities. Consequently, competitions for the office of judge carried out by the [NCJ] have been and will be defective, creating fundamental doubts as to the motivation behind motions for the appointment of specific individuals to the office of a judge. That notwithstanding, in view of factual and legal obstacles aiming to prevent the elimination of doubts as to the legality of the appointment of individual members of the [NCJ], up to and including unlawful refusal to comply with court judgments, the stability and legality of decisions of the [NCJ] may be permanently contested, becoming an object of political dispute, which calls into question the neutrality of persons appointed by the [NCJ].” 102. With respect to the consequences of the finding that the NCJ had not been an independent body in the process of appointment of judges to different courts, the Supreme Court held: “45. Lack of independence of the [NCJ] leads to defectiveness in the procedure of judicial appointments. However, such defect and its effect undermining the criteria of independence and impartiality of the court may prevail to a different degree. First and foremost, the severity and scope of the procedural effect of a defective judicial appointment varies depending on the type of the court and the position of such court in the organisation of the judiciary. The status of a judge of an ordinary court or a military court is different from the status of a judge of the Supreme Court....The severity of irregularities in competition procedures for the appointment of judges of ordinary and military courts and judges of the Supreme Court, since the normative changes implemented in 2017, has varied; however, it was definitely more severe in the case of appointments for judicial positions in the Supreme Court”.... 103. As regards the Chamber of Extraordinary Review and Public Affairs, it noted: “45. It is also relevant to note that the exclusive jurisdiction of the Extraordinary Review and Public Affairs Chamber includes hearing appeals against resolutions of the [NCJ] concerning candidates for the office of a judge of ordinary, military and administrative courts. As a result, a Chamber which is comprised entirely of defectively appointed judges reviews the appointment of other judges on the application of a [NCJ] formed in the same way.” 104. As regards the Disciplinary Chamber and Articles 45 § 1 and 175 § 2 of the Constitution, the Supreme Court also noted additional elements pertaining to its competence and structure: “45. ...It should be mentioned that additional circumstances arise with regard to judges of the Disciplinary Chamber, confirming the inability of an adjudicating court with their participation to fulfil the criteria of independence and impartiality. Such circumstances concern directly the Chamber’s organisation, system, and appointment procedure, as well as its separation from the Supreme Court. The formation of the joined Civil Chamber, Criminal Chamber, and Labour and Social Security Chamber of the Supreme Court fully shares, in that regard, the legal assessment and its justification provided in the judgment of the Supreme Court of 5 December 2019 in case III PO 7/18, which found that the Disciplinary Chamber established in the Supreme Court, under the 2017 Act on the Supreme Court, structurally fails to fulfil the criteria of an independent court within the meaning of Article 47 of the Charter and Article 45 § 1 of the Constitution of the Republic of Poland and Article 6 § 1 ECHR, and that it is an extraordinary court which cannot be established in time of peace pursuant to Article 175 § 2 of the Constitution of the Republic of Poland. For those reasons alone, judgments issued by formations of judges in the Disciplinary Chamber are not judgments given by a duly appointed court.” 105. In its final remarks, the Supreme Court referred, among other things, to the current situation of the Polish judiciary: “59. The current instability of the Polish judiciary originates from the changes to the court system over the past years, which are in breach of the standards laid down in the Constitution, the EU Treaty, the Charter of Fundamental Rights, and the European Convention on Human Rights. The Leitmotif of the change was to subordinate judges and courts to political authorities and to replace judges of different courts, including the Supreme Court. That affected the appointment procedure of judges and the bodies participating in the procedure, as well as the system for the promotion and disciplining of judges. In particular, a manifestly unconstitutional attempt was made to remove some judges of the Supreme Court and to terminate the mandate of the First President of the Supreme Court, contesting the legitimacy of the Supreme Court. The systemic changes caused doubts about the adjudicating legitimacy of judges appointed to the office in the new procedures. The political motivation for the changes jeopardised the objective conditions necessary for courts and judges to be perceived as impartial and independent. The Supreme Court considers that the politicisation of courts and their subordination to the parliamentary majority in breach of constitutional procedures establishes a permanent system where the legitimacy of individual judges and their judgments may be challenged with every new political authority. That notwithstanding, the politicisation of courts departs from the criteria of independence and impartiality of courts required under Union law and international law, in particular Article 47 of the Charter and Article 6 § 1 [of the Convention]. That, in turn, causes uncertainty about the recognition of judgments of Polish courts in the Union space of freedom, justice and security. Even now courts in certain EU Member States refuse to co-operate, invoking violation of standards, and challenge judgments of Polish courts. It should be noted that a resolution of the Supreme Court cannot mitigate all risks arising in the functioning of the Polish judiciary at the systemic level. In fact, that could only be done by the legislature if it restored regulations concerning the judiciary that are consistent with the Constitution of the Republic of Poland and Union law. The Supreme Court may, at best, take into consideration such risks and the principles of stability of the case-law and legal certainty for individuals in its interpretations of provisions which guarantee that a judgment in a specific case will be given by an impartial and independent court. In its interpretation of the regulations governing criminal and civil proceedings, referred by the First President of the Supreme Court, the Supreme Court considered the effect of the judgment of the Court of Justice of the European Union of 19 November 2019 in cases C-585/18, C ‑ 624/18 and C-625/18, as well as the obligation to identify such legislative instruments in the legal system which would guarantee that a judgment will be issued by an impartial and independent tribunal despite doubts arising from a range of systemic changes affecting the status of judges.” The Supreme Court concluded the resolution as follows: “60. ... It should be stressed that, pursuant to Article 91 § 3 of the Constitution of the Republic of Poland, if an agreement, ratified by the Republic of Poland, establishing an international organisation so provides, the laws established by it shall be applied directly and take precedence in the event of a conflict of laws. That concerns in particular the Charter of Fundamental Rights. Consequently, in the event of a conflict of laws with norms arising from such legal act, Polish courts are required to disregard such laws in adjudicating. In this context, it is important to quote once again in extenso the principle reiterated on many occasions in the case-law of the Court of Justice of the European Union ...: ‘any provision of a national legal system and any legislative, administrative or judicial practice which might impair the effectiveness of Community law by withholding from the national court having jurisdiction to apply such law the power to do everything necessary at the moment of its application to set aside national legislative provisions which might prevent Community rules from having full force and effect are incompatible with those requirements which are the very essence of Community law.’ That is because a ‘national court which is called upon, within the limits of its jurisdiction, to apply provisions of Community law is under a duty to give full effect to those provisions, if necessary refusing of its own motion to apply any conflicting provision of national legislation, even if adopted subsequently’ (judgment of March 1977, C-106/77). Therefore, a law or decision of any national body cannot prevent Polish courts from applying European Union law, prohibit an interpretation of Polish law in line with European Union law, or especially impose any restrictions or sanctions on judges who, exercising their judicial power and acting as a court, respect the obligations arising from the European Union membership of the Republic of Poland. If, however, the Constitution of Poland, in particular Article 179, which provides that judges shall be appointed by the President of the Republic of Poland on a motion of the [NCJ], is found to prevent review of the independence and impartiality of a court adjudicating in a given case, then the Polish Constitution would be in fundamental conflict with Article 47 of the Charter. In the territory of the European Union, the independence and impartiality of courts must be genuine; and their independence and impartiality cannot be uncontestably decreed by the mere fact of appointment to the office of judge by the President of the Republic of Poland.” 106. In the wake of the resolution, the Ministry of Justice published a statement on its website which, in its verbatim (emphasis included) English version, read as follows: “ Statement on the resolution of the Supreme Court The resolution of the Supreme Court of 23 January 2020 is ineffective. It was passed in gross violation of law. It violates Article 179, Article 180(1) and Article 10 of the Polish Constitution. Contrary to the applicable statutory provisions, the Supreme Court adopted a resolution in proceedings regarding the challenge of the status of judges appointed with the participation of the current National Council of the Judiciary (KRS). These proceedings were suspended by law on 22 January 2020 upon initiating a dispute of competence between the Supreme Court and the Sejm and the President of the Republic of Poland before the Constitutional [Court]. Before the Constitutional [Court]’s ruling, no action is allowed to be taken in the matter concerned. The resolution of the Supreme Court is therefore invalid by law. Pursuant to the Act on the Organisation of the Constitutional [Court] and the Mode of Proceedings before the Constitutional [Court], if a dispute of competence is initiated, the proceedings before the Supreme Court are suspended by law. All actions of the Court during the suspension are invalid. Before the Constitutional [Court]’s ruling, no action is allowed to be taken in the matter concerned. A party to a dispute is not allowed to judge for itself whether a dispute has actually occurred. Pursuant to the Constitution, this right is vested only in the Constitutional [Court]. The essence of such as dispute is that no Court can examine, let alone question judicial appointments or act that govern the status of judges and the manner in which candidates are selected. Therefore, the Supreme Court cannot encroach upon the competences of the National Council of the Judiciary, the President of the Republic of Poland or the Sejm, and, pursuing this line, even the competencies of the Constitutional [Court] itself, which has already dealt with the case of the National Council of the Judiciary and declared the current wording of the Act to be in accordance with the Constitution. The suspension of the proceedings before the Supreme Court was also necessary because a case regarding the provision of the Code of Civil Procedure to which the resolution refers (i.e. Article 379(4) of the Code of Civil Procedure) is being heard before the Constitutional [Court]. A resolution adopted by three chambers of the Supreme Court is unlawful and, as such, produces no legal effects. The Supreme Court is not authorised to examine and assess whether the fact that a judge appointed by the President of the Republic of Poland at the request of the National Council of the Judiciary after 2018 sits on common [ sic ] court, military court or Supreme Court invalidates the proceedings. Consequently, no authority, including a judicial one, can question the appointment and investiture of a judge. In addition, following the effective date the Act of 20 December 2019 on Guaranteeing Constitutional Order in the Administration of Justice and Improving the Work of Courts, the resolution of the Supreme Court will become even more irrelevant. Indeed, the new Act eliminates recent doubts about the possibility of questioning the status of judges appointed by the President of the Republic of Poland. It declares inadmissibility of such actions, in accordance with the jurisprudence of the Supreme Administrative Court and the Constitutional [Court]. Office of Communication and Promotion Ministry of Justice.” The Constitutional Court’s case-law (a) Judgment of 18 July 2007 (case no. K 25/07) 107. On 18 July 2007 the Constitutional Court reviewed, on an application from the NCJ, the constitutionality of two provisions added to the 2001 Act on the Ordinary Courts by the Act of 16 March 2007 amending the Act on the NCJ of 2001, which had introduced the rule of incompatibilitas for the position of a member of the NCJ with the position of president or vice-president of an ordinary court. The first of the impugned provisions (section 25a) stipulated (1) that a judge elected as member of the NCJ could not be appointed to the post of president or vice-president of a court, and (2) that the appointment to such post is terminated on election to the NCJ. The second of the impugned provisions (section 5) extended the rule included in section 25a to judges sitting as members of the NCJ during their term of office. The Constitutional Court held that both provisions were incompatible with Article 187 § 1 (2) of the Constitution, and that the second of these provisions was also incompatible with Article 2 of the Constitution. As regards the constitutional position of the NCJ, the Constitutional Court held that it was a constitutional collegial State authority whose functions were related to judicial power. The relevant part of the judgment read: “In vesting the Council with competences relating to the protection of the independence of courts and judges, the Constitution also introduced the mechanism protecting the independence of the Council. Article 187 § 1 of the Constitution provides that the composition of the Council is mixed: it connects representatives of the judiciary (with compulsory participation of Presidents of the Supreme Court and the Supreme Administrative Court), representatives of the executive (the Minister of Justice and a person appointed by the President of the Republic) as well as four MPs and two senators. The [1997] Constitution introduced – in comparison to earlier provisions of constitutional rank – constitutional rules concerning the composition of the Council, specified the term of office of its members and the manner of their appointment or election. In the composition of the Council the Constitution gave a significant majority to elected judges of the ordinary, administrative and military courts and judges of the Supreme Court. The regulations concerning election of judges to the Council are of constitutional rank and of particular constitutional significance, since their status de facto determines the independence of this constitutional organ and the effectiveness of the Council’s work.” The Constitutional Court also held that the members of the NCJ should be judges and elected by judges: “4. The Constitution regulates directly in Article 187 § 1 (2) the principle of election of judges to the NCJ, determining in that way the personal composition of the NCJ. It explicitly prescribes that judges – elected by judges – could be members of the NCJ, without stipulating other additional conditions that would have to be met for them to sit in the NCJ. The election is made from among four groups of judges mentioned in Article 187 § 1 (2) of the Constitution. The Constitution does not provide for a removal of the [judicial members of the NCJ], stipulating their four-year term of office in the NCJ. The election procedure set out in the [2001] Act on the NCJ ... falls within the boundaries laid down in Article 187 § 1 (2) of the Constitution, fulfilling the principle of election of judges by judges. ...” (b) Judgment of 20 June 2017 (case no. K 5/17) 108. On 11 April 2017 the Prosecutor General, who at the same time holds the position of Minister of Justice, asked the Constitutional Court to examine the compatibility with the Constitution of several provisions of the Act on the NCJ in force at the material time. 109. On 20 June 2017 the Constitutional Court gave judgment in the case. It held that the provisions regulating the procedure for electing members of the NCJ from among judges of the ordinary courts and of administrative courts [3] were incompatible with Article 187 § 1 (2) and § 4 in conjunction with Article 32 of the Constitution. The impugned provisions introduced an unjustified differentiation with regard to the election of judges of the respective levels of the ordinary and administrative courts to the NCJ and did not provide equal opportunities in respect of standing for election to the NCJ. The Constitutional Court found that the impugned provisions treated unequally judges of district and regional courts in comparison with judges of courts of appeal, as well as judges of district courts in comparison with judges of the regional courts. The same applied to judges of the regional administrative courts in comparison with judges of the Supreme Administrative Court. 110. Secondly, the Constitutional Court held that section 13(3) of the 2011 Act on the NCJ, interpreted in the sense that the terms of office of members of the NCJ elected from among judges of ordinary courts was individual in character, was incompatible with Article 187 § 3 of the Constitution. 111. In its general observations, the Constitutional Court noted that the NCJ was a constitutional body tasked with protecting the independence of courts and judges. It also noted that the NCJ was not a judicial authority, and thus the constitutional standards relevant for courts and tribunals were not applicable to the NCJ. Nor should the NCJ be regarded as part of judicial self-governance. The mixed composition of the Council made it an organ ensuring the balance of – and cooperation between – the different powers. With regard to the election of judicial members of the NCJ, the Constitutional Court held, in so far as relevant: “The Constitutional Court in its current composition does not agree with the [Constitutional Court’s] position adopted in the judgment [of 18 July 2007,] no. K 25/07 that the Constitution specifies that [judicial] members of the NCJ shall be elected by judges. Article 187 § 1 (2) of the Constitution only stipulates that these persons [judicial members of the NCJ] are elected from among judges. The Constitution did not specify who should elect those judges. Thus, the question of who can be elected as member of the NCJ follows from the Constitution, but it is not specified how judicial members of the Council are to be elected. These matters were delegated to statutory regulation. There is no obstacle for election of judges to the NCJ by judges. However, one cannot agree with the assertion that the right to elect [judicial members of the NCJ] is vested solely in assemblies of judges. While Article 187 § 1 (3) of the Constitution clearly indicates that MPs are elected to the NCJ by Sejm and senators by the Senate, there are no constitutional guidelines in respect of judicial members of the NCJ. This means that the Constitution does not determine who may elect judges to the NCJ. For this reason, it should be noted that this question may be differently regulated within the limits of legislative discretion.” The Constitutional Court concluded: “...The legislator has quite broad freedom in shaping the NCJ system, as well as the scope of its activities, the mode of work and the manner of election of its members. However, the legislator’s competence is not unlimited. Its limits are determined by: firstly, the Council’s task, i.e. in acting to safeguard the independence of courts and independence of judges; secondly, the constitutionally determined composition of the Council: while a statute may regulate the manner of election of Council members, it may not modify its personal component set out in Article 187 § 1 of the Constitution ...” 112. The bench included Judge M.M. as judge rapporteur. The issue whether a bench of the Constitutional Court including Judge M.M. was a “tribunal established by law” was raised in the case of Xero Floor w Polsce sp. z. o.o. v Poland (no. 4907/18, judgment of 7 May 2021, not final). (c) Judgment of 25 March 2019 (case no. K 12/18) 113. On 2 November 2018 the NCJ lodged a request with the Constitutional Court to examine compliance with the Constitution of the provisions of the 2011 Act on the NCJ as amended by the 2017 Amending Act. 114. On 25 March 2019 the Constitutional Court gave judgment confirming compliance with Articles 187 § 1 (2) and § 4, in conjunction with Articles 2, 10 § 1 and 173 and 186 § 1 of the Constitution, of section 9a of the 2011 Act on the NCJ, as amended by the 2017 Amending Act, concerning the manner of appointment of the NCJ’s judicial members by Sejm. Secondly, the court held that section 44(1a) of the 2011 Act on the NCJ, as amended by the 2017 Amending Act, concerning the procedure for judicial review of individual resolutions of the NCJ on the selection of judges, refusing to appoint the candidates, was incompatible with Article 184 of the Polish Constitution. (d) Judgment of 20 April 2020 (case no. U 2/20) 115. On 24 February 2020 the Prime Minister ( Prezes Rady Ministrów ) referred to the Constitutional Court the question of the compatibility of the Supreme Court’s resolution of 23 January 2020 with several provisions of the Polish Constitution, the Charter of Fundamental Rights of the European Union and the Convention. 116. On 20 April 2020 the Constitutional Court issued judgment declaring that the Supreme Court’s resolution of 23 January 2020 was incompatible with Articles 179, Article 144 § 3 (17), Article 183 § 1, Article 45 § 1, Article 8 § 1, Article 7 and Article 2 of the Constitution, Articles 2 and 4(3) of the Treaty on European Union (TEU) and Article 6 § 1 of the Convention. It held, in particular, that decisions of the President of Poland on judicial appointments may not be subject to any type of review, including by the Supreme Court. The judgment was given by a Constitutional Court’s panel including Judge M.M. It was published in the Official Gazette on 21 April 2020. The court held (references omitted), in particular: “...The four editorial divisions of the Supreme Court’s resolution, which constitute the entirety of the subject under review, introduce and regulate a normative novelty (unknown to other legal acts of the Republic of Poland, in particular the Constitution) consisting in the fact that ordinary courts, military courts and the Supreme Court may control and restrict a judge’s right to adjudicate solely on the basis of the fact of his or her appointment by the President on a motion of the NCJ, whose members, who are judges, were elected by Sejm, and not by judicial bodies ... The contested resolution of the Supreme Court is incompatible with Article 179 of the Constitution because it undermines the character of that provision as an independent basis for the effective appointment of a judge by the President on a motion of the NCJ, and thus as an independent, complete and sufficient legal regulation enabling the exercise by the President of the powers indicated in that provision. The contested resolution of the Supreme Court is incompatible with Article 144 § 3 (17) of the Constitution because it cannot be reconciled with the essence of the President’s prerogative to appoint judges within the Republic of Poland. The President’s prerogative is not subject to review in any manner whatsoever, and therefore, it may not be subject to any limitation or narrowing of interpretation within the content of an act of secondary legislation ...” 117. As regards Article 45 § 1 of the Constitution and Article 6 § 1 of the Convention the Constitutional Court held, in so far as relevant (references omitted): “In particular, the contested resolution of the Supreme Court is incompatible with Article 45 § 1 of the Constitution and Article 6 § 1 of the Convention because, in its content, it infringes the standard of independence of a court and of a judge which, according to the case-law of the CJEU, has two aspects. The first – external – aspect of the judge’s independence presupposes that the court, in its adjudication, performs its tasks completely independently, without being subject to any official hierarchy or subordinated to anyone, and does not receive orders or instructions from any source whatsoever, such that it is protected from interference and external pressure that might compromise the independence of its members (judges) when they examine cases. The content of the impugned resolution of the Supreme Court granting to some judges the right to decide that other judges appointed by the President have, de facto, the status of retired judges ab initio cannot be reconciled with the standard as outlined above, resulting from all the indicated relevant standards. As the CJEU points out, the second – internal – aspect of the independence of a judge - is linked to the concept of impartiality and concerns an unbiased dissociation from the litigants, and their respective interests, in relation to a dispute before the court. This factor requires [of a judge] the observance of objectivity and the absence of any interest in the resolution of the dispute, apart from the strict application of the law. This aspect excludes a procedure generally questioning a judge’s right to adjudicate by other judges and verifying the regularity of the procedure preceding the appointment of a judge by the President as a basis for a general objection to such a judge’s right to adjudicate. An unbiased dissociation of a judge from a dispute is possible only where any conclusions of the court leading to the resolution of a case are based on respect for the Constitution as a foundation. Such aspect of the judge’s independence excludes the content of the court’s judgment from being made dependent on the need to choose between a constitutional provision and the content of a [law] that is in conflict with the Constitution, but which – as a result of a statutory regulation – could in all likelihood constitute a ground for challenging the judgment before a higher court. For that reason, the content of the impugned resolution of the Supreme Court cannot be reconciled with Article 45 § 1 of the Constitution and Article 6 § 1 of the Convention.” (e) Decisions of 28 January and 21 April 2020 (case no. Kpt 1/20) 118. The Speaker of Sejm referred a question to the Constitutional Court as to whether there was a “conflict of competence between Sejm and the Supreme Court and between the President of Poland and the Supreme Court”. 119. On 28 January 2020 the Constitutional Court issued an interim decision ( postanowienie ), whereby it suspended the enforcement of the Supreme Court’s resolution of 23 January 2020 (see paragraph 89 above) and suspended the prerogative of the Supreme Court to issue resolutions concerning the compatibility with national or international law or the case-law of international courts of the composition of the NCJ, the procedure for presenting candidates for judicial office to the President of Poland, the prerogative of the President to appoint judges and the competence to hold judicial office of a person appointed by the President of Poland upon recommendation of the NCJ. 120. On 21 April 2020 the Constitutional Court gave a decision, finally ruling on the matter of the “conflict of competence”. Both the interim measure and the final ruling were given by the Constitutional Court sitting in a formation which included Judge M.M. The Constitutional Court decided to: “1. Resolve the conflict of competence between the Supreme Court and Sejm of the Republic of Poland as follows [4] : (a) The Supreme Court – also in connection with a ruling of an international court – has no jurisdiction to make a ‘law-making interpretation’ ( wykładnia prawotwórcza ) of legal provisions, by means of [a resolution]which leads to modification in the legal situation regarding the organisational structure of the judiciary; (b) pursuant to Article 10, Article 95(1), Article 176(2), Article 183(2) and Article 187(4) of the Constitution of the Republic of Poland, the introduction of any modification within the scope specified in point 1(a) shall be within the exclusive competence of the legislature. 2. Resolve the conflict of competence between the Supreme Court and the President of the Republic of Poland as follows: (a) under Article 179 in conjunction with Article 144 § 3 (17) of the Constitution, an appointment of a judge constitutes the exclusive competence of the President of the Republic of Poland, which he exercises upon the request of the National Council of the Judiciary personally, irrevocably and without any participation or interference of the Supreme Court; (b) Article 183 of the Constitution does not provide that the Supreme Court has jurisdiction to oversee the President of the Republic of Poland in his exercise of the competence referred to in Article 179 in conjunction with Article 144 § 3 (17) of the Constitution including [the Supreme Court’s jurisdiction] to give a binding interpretation of legal provisions to specify prerequisites for the President’s effective exercise of the said competence.” 121. The Constitutional Court held, in so far as relevant: “... The Constitution in Article 144 § 3 (17) defines the prerogative of the President – his personal power to appoint judges. And Article 179 of the Constitution provides that judges are appointed by the President, on a motion of the NCJ, for an indefinite period. The Constitutional Court upholds the view expressed earlier that ‘judges are appointed by the President, on a motion of the NCJ, for an indefinite period of time’. The Constitution identifies two entities involved in the judicial appointment procedure – the President and the NCJ. The judicial appointment procedure under the Constitution thus involves cooperation between two bodies, one of which has a direct mandate from the public, and the other – due to the participation of, inter alia, MPs and senators - has an indirect mandate ..., although it should be noted that there are only six MPs and senators in the 25 ‑ member NCJ (four MPs and two senators). Under Article 144 § 3 (17) of the Constitution, the power to appoint judges belongs to those official acts of the President which, in order to be valid, do not require the countersignature of the Prime Minister (the so-called prerogative). ... By vesting the power to appoint judges in the President, the Constitution thus adopts a system of judicial appointment, albeit of a limited nature. Although judicial appointments do not require countersignature, the constitutional requirement of a motion of the NCJ significantly restricts the President’s freedom of action in this situation. The President may not appoint every person who meets the requirements for election to the judiciary, but only a person whose candidature has been considered and indicated by the NCJ. ... In the light of the prevailing views of legal scholars, there is no doubt that, although the President’s freedom of action is limited to taking a stance on the candidate proposed by the NCJ, the fact that the competences concerning appointment of judges have been made into a prerogative emphasises that the President is not legally obliged to grant the NCJ’s motion. ... The power to appoint judges is, under Article 144 § 3 (17) of the Constitution, a prerogative of the President, that is, his personal prerogative, which in order to be valid does not require the signature of the Prime Minister. As such, it remains within the President’s exclusive competence and responsibility, although this does not mean that he may act entirely freely - he is bound by the principles and values expressed in the Constitution, the observance of which, pursuant to Article 126 § 2 of the Constitution, he is obliged to ensure. The prerogative regarding the appointment of judges is specified in Article 179 of the Constitution. This provision, stipulating that judges shall be appointed by the President on the motion of the NCJ, for an indefinite period, precisely defines the competences of both the President and the NCJ. It is for the NCJ to submit a motion for the appointment of judges (identification of candidates for specific judicial positions).” The Supreme Administrative Court’s case-law 122. On 6 May 2021 the Supreme Administrative Court gave judgments in five cases (nos. II GOK 2/18; II GOK 3/18; II GOK 5/18; II GOK 6/18 and II GOK 7/18), including the case of A.B. v. the NCJ (no. II GOK 2/18) in which it held that the NCJ did not offer sufficient guarantees of independence from the legislative and executive powers and that the President of Poland’s announcement of vacant positions in the Supreme Court in May 2018 (see paragraph 42 above), as having been done without the Prime Minister’s countersignature, was contrary to Article 144 § 2 of the Constitution and had resulted in a deficient procedure for judicial appointments. All the judgments contain identical reasoning. 123. In particular, the Supreme Administrative Court considered, in application of the CJEU judgments of 19 November 2019 and 2 March 2021 (see paragraphs 164-167 below), that the decisive elements justifying the conclusion as to the NCJ’s lack of independence were as follows: (a) The current NCJ had been constituted as a result of the premature termination of the terms of office of former members of the NCJ. (b) In contrast to the former legislation under which fifteen judicial members of the NCJ had been elected by their peers directly, they were currently elected by Sejm; as a result, the number of the NCJ’s members directly originating from or appointed by political authorities was twenty-three, out of twenty-five members; also, there were no representatives of the Supreme Court or administrative courts, as required by Article 187 § 2 of the Constitution, and 14 of its judicial members had come from ordinary courts. (c) The potential for irregularities that could adversely affect the process of appointment of certain members of the NCJ; it was noted that in practice some members had supported their own candidatures, that some candidates had supported each other, and that there had clearly been political factors behind their choice, for instance political loyalty to the legislative power. (d) The manner in which the current NCJ carried out its constitutional duty to safeguard the independence of courts and judges; on this point it was noted that the NCJ’s activity had been in stark contrast to what would be expected of such a body, as confirmed by the 2018 decision of the ENCJ, suspending the NCJ’s membership for its non-compliance with the ENCJ rule of independence from the executive (see also paragraph 175 below). The Supreme Administrative court accepted – as did the CJEU in the above-mentioned judgments – that while each element taken in isolation might not necessarily lead to that conclusion, their combination and the circumstances in which the NCJ had been constituted raised doubts as to its independence. In that regard, the Supreme Administrative Court stated that it fully and unreservedly shared the Supreme Court’s assessment of those elements and circumstances in its judgment of 5 December 2019 (see also paragraph 71 above). It was further noted that since many members of the NCJ had recently been promoted to posts of president and vice-president of courts, the entire body had to be regarded as strictly and institutionally subordinate to the executive, represented by the Minister of Justice. The degree of dependence on the executive and legislature was such that it could not be irrelevant in assessing the ability of the judges selected by it to meet the objective requirements of independence and impartiality required by Article 47 of the Charter of Fundamental Rights (see paragraph 149 below). Such composition of the NCJ undermined its ability to perform effectively its primary function of safeguarding the independence of judges and courts. 124. As to other details of the NCJ’s activities, the court found that there was no appearance that the NCJ – a body constitutionally responsible for safeguarding the independence of judges and courts – had been fulfilling these duties and respecting positions presented by national and international institutions. In particular, it had not opposed the actions which did not comply with the legal implications resulting from the interim order of the CJEU of 8 April 2020 (C-791/19; see paragraph 169 below). The actions of the NCJ in the case under consideration also showed that it had intentionally and directly sought to make it impossible for the Supreme Administrative Court to carry out judicial review of the resolution to recommend (and not to recommend) candidates to the Civil Chamber of the Supreme Court. The NCJ referred the appeal lodged by A.B. on 1 October only on 9 November 2019 while in the meantime it had transmitted the resolution to the President for him to appoint the recommended candidates. 125. Lastly, as regards the precondition of the Prime Minister’s countersignature for the 2018 President of Poland’s act of announcement of vacant positions at the Supreme Court (see paragraph 26 above), the Supreme Administrative Court agreed with the interpretation of the Supreme Court given in the judgment of 5 December 2019 and the resolution of 23 January 2020 (see paragraphs 71 and 89 below), that this act required for its validity a countersignature of the Prime Minister. It stressed that Article 144 § 3 of the Constitution did not mention that prerogative among the explicit, exhaustively enumerated prerogatives of the President that did not require the countersignature for their validity. Since this provision laid down the President’s exclusive prerogatives, all other acts being subject to the Prime Minister’s countersignature, it had to be interpreted strictly. Nor could it be said that the act of announcement of vacant positions in the Supreme Court could be derived from the President’s power to appoint judges under Article 144 § 3 (17) of the Constitution since the exercise of any derived prerogative not requiring the countersignature must be necessary for the proper accomplishment of the main prerogative. Before the entry into force of the 2017 Act on the Supreme Court, the competence to announce vacant positions in the Supreme Court belonged to the First President of the Supreme Court, and this in no way affected the President of Poland’s power to appoint judges to the Supreme Court. Consequently, a decision to announce vacant positions in the Supreme Court did not constitute an act which was necessary for the exercise of the President of Poland’s prerogative to appoint the judges; conversely, it could constitute an instrument of discretionary power to influence the time when, if at all, vacant positions in the Supreme Court would be filled. INTERNATIONAL MATERIALUnited Nations United Nations United Nations 126. The United Nations (UN) Basic Principles on the Independence of the Judiciary, adopted by the Seventh UN Congress on the Prevention of Crime and the Treatment of Offenders held at Milan from 26 August to 6 September 1985 and endorsed by General Assembly resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985, provide as follows, in so far as relevant: “10. Persons selected for judicial office shall be individuals of integrity and ability with appropriate training or qualifications in law. Any method of judicial selection shall safeguard against judicial appointments for improper motives. ... 19. All disciplinary, suspension or removal proceedings shall be determined in accordance with established standards of judicial conduct.” 127. On 5 April 2018 the UN Special Rapporteur on the Independence of Judges and Lawyers, Mr Diego García–Sayán, submitted a report on his mission to Poland (UN Human Rights Council, document A/HRC/38/38/Add.1). The relevant parts of the report’s conclusions and recommendations read as follows: “IV. Conclusions ... 74. After having successfully ‘neutered’ the Constitutional [Court], the Government has undertaken a far-reaching reform of the judicial system. Between May and December 2017, the ruling majority has adopted three acts that introduce broad changes to the composition and functioning of ordinary courts, the Supreme Court and the National Council of the Judiciary. Each of these acts presents a number of concerns as to its compliance with international legal standards but, taken together, their cumulative effect is to place the judiciary under the control of the executive and legislative branches. 75. The Special Rapporteur warns Polish authorities that the implementation of this reform, undertaken by the governing majority in haste and without proper consultation with the opposition, the judiciary and civil society actors, including the Office of the [Polish Commissioner for Human Rights], risks hampering the capacity of judicial authorities to ensure checks and balances and to carry out their essential function in promoting and protecting human rights and upholding the rule of law. V. Recommendations ... 84. The Special Rapporteur recommends that [the 2017 Act on the Supreme Court] be amended to bring it into line with the Constitution and international standards relating to the independence of the judiciary and the separation of powers. ... (f) Reviewing the vast ratione materiae jurisdiction of the Extraordinary Chamber and the Disciplinary Chamber in line with the recommendations of the European Commission, the Venice Commission and OSCE/ODIHR. 85. The Special Rapporteur recommends that [the 2017 Amending Act] be amended to bring it into line with the Constitution and international standards relating to the independence of the judiciary and the separation of powers. In particular, the Special Rapporteur recommends: (a) Removing the provisions concerning the new appointment procedure for the judicial members of the National Council of the Judiciary and ensuring that the 15 judicial members of the Council are elected by their peers. ...” The Organization for Security and Cooperation in Europe (OSCE)’s Office for Democratic Institutions and Human Rights (ODIHR) Opinion of 5 May 2017 Opinion of 5 May 2017 Opinion of 5 May 2017 128. The final Opinion on Draft Amendments to the Act on the National Council of the Judiciary and Certain Other Acts of Poland (JUD ‑ POL/305/2017-Final) of 5 May 2017, reads, in so far as relevant, as follows: “13. While the OSCE/ODIHR recognizes the right of every state to reform its judicial system, any judicial reform process should preserve the independence of the judiciary and the key role of a judicial council in this context. In this regard, the proposed amendments raise serious concerns with respect to key democratic principles, in particular the separation of powers and the independence of the judiciary, as also emphasized by the UN Human Rights Committee in its latest Concluding Observations on Poland in November 2016. The changes proposed by the Draft Act could also affect public trust and confidence in the judiciary, as well as its legitimacy and credibility. If adopted, the amendments could undermine the very foundations of a democratic society governed by the rule of law, which OSCE participating States have committed to respect as a prerequisite for achieving security, justice and stability.... 17. In light of the potentially negative impact that the Draft Act, if adopted, would have on the independence of the Judicial Council, and as a consequence of the judiciary in Poland, the OSCE/ODIHR recommends that the Draft Act be reconsidered in its entirety and that the legal drafters not pursue its adoption.” Opinion of 13 November 2017 129. The 13 November 2017 opinion on Certain Provisions of the Draft Act on the Supreme Court of Poland (as of 26 September 2017), (JUD ‑ POL/315/2017), reads, in so far as relevant: “2.3 The New Disciplinary Chamber 65. The New Disciplinary Chamber will be in charge of hearing disciplinary cases against Supreme Court judges and other legal professionals where this is provided by separate legislation, as well as complaints concerning overly lengthy proceedings before the Supreme Court (Article 26 of the Draft Act). 66. This new chamber stands out insofar as it is somewhat removed from the authority of the First President of the Supreme Court compared to the other chambers. In a departure from the procedure by which Presidents of other chambers are chosen, the President of the Republic of Poland does not have to consult the First President of the Supreme Court when choosing the President of the Disciplinary Chamber (Article 14 par. 3). Moreover, the President of the Disciplinary Chamber has an array of special powers that are not granted to other chamber Presidents. These include budgetary powers of the kind which the First President exercises for the rest of the Supreme Court (Article 7 pars 2 ‑ 3 and 4), the right to appoint and dismiss chairs of departments within the Disciplinary Chamber, to be consulted when the President of the Republic of Poland determines the number of vacancies in the Chamber and to authorise the additional employment by members of the Chamber (Article 19 par 1), the institution of disciplinary inquiries against Supreme Court judges (Article 75 par 1), and the determination of the Chamber’s internal organisation and internal rules of conduct (Article 95). 67. The First President of the Supreme Court is furthermore constrained to act “in consultation with” the President of the Disciplinary Chamber when exercising certain functions, including the appointment and dismissals of chairs of departments in other chambers and the selection of lay justices, as well as when ordering the release of a judge detained in flagrante delicto or on the authority of a disciplinary court (Article 19 par 2). Pursuant to Article 97 of the Draft Act, the Disciplinary Chamber will furthermore be supported by its own secretariat following special rules, making it largely autonomous within the Supreme Court, and de facto, creating a separate chamber with a special status within the Supreme Court. 68. It is unclear from the Explanatory Statement to the Draft Act why such a special autonomous status for this chamber is needed. While the independence of a body adjudicating on disciplinary cases against judges need to be ensured, the modalities of appointment of the President of the Disciplinary Chamber confer on the President of the Republic a decisive influence, which is even more exacerbated by the fact that the First President of the Supreme Court is not consulted. While Article 144 par 3 (23) of the Constitution of the Republic of Poland specifically provides that the President of the Republic of Poland appoints the Presidents of the Supreme Court, such a prerogative should be of a ceremonial nature (see par 105 infra ). In any case, the conditions and procedure for appointing the Presidents of the Supreme Court should be open and transparent to ensure that objective criteria of merit and competence prevail and that the best candidate is ultimately appointed (see pars 103-104 infra ). The fact that the President of the Republic of Poland has the final say in this process means that one cannot exclude that political or other considerations may prevail over criteria for appointment. Moreover, overall, there is a risk of having a future President of the Disciplinary Chamber, who would be somewhat beholden towards the appointing authority in a manner that may undermine judicial independence (see also Sub-Section 4.2 infra regarding the appointment of presidents of the Supreme Court and related recommendation in par 105 infra ). 69. Moreover, allowing the President of the Disciplinary Chamber a say when appointing/dismissing chairs of department in other chambers and during the selection of lay judges seems to go quite far and also does not appear to be linked in any way to disciplinary matters. In light of the above, these provisions would open the door for indirect influence of the President of the Republic, who is part of the executive branch, in these areas, which should be under the sole responsibility of the First President of the Supreme Court. The specific status and rules applicable solely to the Disciplinary Chamber and its President, particularly with regard to the President of the Republic’s special role, should be reconsidered.” 130. In Annex 1 (dated 30 August 2017) to the above-mentioned opinion on Certain Provisions of the Draft Act on the Supreme Court of Poland (JUD-POL/313/2017), OSCE/ODIHIR made the following conclusion: “60. Given the modalities for appointing judges to the Disciplinary Chamber, the status of these judges and the great influence of the Minister of Justice on disciplinary proceedings during the preliminary phase, the adjudication of disciplinary cases against Supreme Court judges is not compliant with relevant fair trial requirements set out in Article 6 par 1 of the ECHR and Article 14 par 1 of the ICCPR. This deficiency cannot be cured on appeal in light of the composition of the competent courts of second instance.” Council of EuropeThe European Charter on the Statute for Judges The European Charter on the Statute for Judges The European Charter on the Statute for Judges 131. The relevant extract from the European Charter on the Statute for Judges of 8-10 July 1998 [5] reads as follows: “2. SELECTION, RECRUITMENT, INITIAL TRAINING 2.1. The rules of the statute relating to the selection and recruitment of judges by an independent body or panel, base the choice of candidates on their ability to assess freely and impartially the legal matters which will be referred to them ... 2.2. The statute makes provision for the conditions which guarantee, by requirements linked to educational qualifications or previous experience, the ability specifically to discharge judicial duties.” 132. In its Explanatory Memorandum, the European Charter on the Statute for Judges provides, among other things, as follows: “1.1 The Charter endeavours to define the content of the statute for judges on the basis of the objectives to be attained: ensuring the competence, independence and impartiality which all members of the public are entitled to expect of the courts and judges entrusted with protecting their rights. The Charter is therefore not an end in itself but rather a means of guaranteeing that the individuals whose rights are to be protected by the courts and judges have the requisite safeguards on the effectiveness of such protection. These safeguards on individuals’ rights are ensured by judicial competence, in the sense of ability, independence and impartiality ...” Committee of Ministers 133. The Recommendation adopted by the Committee of Ministers on 17 November 2010 (CM/Rec(2010)12) on “Judges: independence, efficiency and responsibilities” provides, in so far as relevant, as follows: “ Chapter I – General aspects Judicial independence and the level at which it should be safeguarded ... 3. The purpose of independence, as laid down in Article 6 of the Convention, is to guarantee every person the fundamental right to have their case decided in a fair trial, on legal grounds only and without any improper influence. 4. The independence of individual judges is safeguarded by the independence of the judiciary as a whole. As such, it is a fundamental aspect of the rule of law. Chapter VI - Status of the judge Selection and career 44. Decisions concerning the selection and career of judges should be based on objective criteria pre ‑ established by law or by the competent authorities. Such decisions should be based on merit, having regard to the qualifications, skills and capacity required to adjudicate cases by applying the law while respecting human dignity. ... 46. The authority taking decisions on the selection and career of judges should be independent of the executive and legislative powers. With a view to guaranteeing its independence, at least half of the members of the authority should be judges chosen by their peers. 47. However, where the constitutional or other legal provisions prescribe that the head of state, the government or the legislative power take decisions concerning the selection and career of judges, an independent and competent authority drawn in substantial part from the judiciary (without prejudice to the rules applicable to councils for the judiciary contained in Chapter IV) should be authorised to make recommendations or express opinions which the relevant appointing authority follows in practice. 48. The membership of the independent authorities referred to in paragraphs 46 and 47 should ensure the widest possible representation. Their procedures should be transparent with reasons for decisions being made available to applicants on request. An unsuccessful candidate should have the right to challenge the decision, or at least the procedure under which the decision was made.” The Explanatory Memorandum to this recommendation further provides as follows: “13. The separation of powers is a fundamental guarantee of the independence of the judiciary whatever the legal traditions of the member states.” 134. Recommendation No. R(2000)21 of the Committee of Ministers to member States on the freedom of exercise of the profession of lawyer (adopted by the Committee of Ministers on 25 October 2000 at the 727 th meeting of the Ministers’ Deputies) provides, in so far as relevant, as follows: “Principle VI - Disciplinary proceedings 1. Where lawyers do not act in accordance with their professional standards, set out in codes of conduct drawn up by Bar associations or other associations of lawyers, appropriate measures should be taken, including disciplinary proceedings. 2. Bar associations or other lawyers’ professional associations should be responsible for or be entitled to participate in the conduct of disciplinary proceedings concerning lawyers. 3. Disciplinary proceedings should be conducted with full respect of the Principles and rules laid down in the European Convention on Human Rights, including the right of the lawyer concerned to participate in the proceedings and to apply for judicial review of the decision. 4. The Principle of proportionality should be respected in determining sanctions for disciplinary offences committed by lawyers.” The Explanatory Memorandum to this recommendation further provides as follows: “61. In particular, for the purpose of this Recommendation, lawyers’ rights include, inter alia : - the right to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. This does not preclude lawyers from asking that the hearing be heard in camera .” The Council of Europe Commissioner for Human Rights 135. The Council of Europe Commissioner for Human Rights, Ms Dunja Mijatović carried out a visit to Poland from 11 to 15 March 2019. In her report following the visit, published on 28 June 2019, she stated as follows: “1.2 CHANGES AFFECTING THE NATIONAL COUNCIL FOR THE JUDICIARY 14. In March 2018, in a vote boycotted by the parliamentary opposition, Sejm elected the new judicial members of the [NCJ], thereby terminating the mandate of the sitting members of the Council. Thirteen of the newly elected members were judges from district (first-instance) courts, and one each from a regional court and a regional administrative court. Three of them had been previously seconded to the Ministry of Justice, while seven had previously been appointed by the Minister of Justice as presidents or vice-presidents of ordinary courts (cf. paragraph 40 of section 1.5 below). An informal survey conducted in December 2018 showed that about 3,000 Polish judges considered that the newly constituted Council was not performing its statutory tasks, while 87% of those who participated believed the body’s new members should all be made to resign. In September 2018, the General Assembly of the ENCJ made the unprecedented decision to suspend the membership of the Poland’s [NCJ] and stripped it of its voting rights, finding that it no longer fulfilled the requirement of independence from the executive and the legislature. ... 1.2.1 CONCLUSIONS AND RECOMMENDATIONS 18. The Commissioner recalls that councils for the judiciary are independent bodies that seek to safeguard the independence of the judiciary and of individual judges and thereby to promote the efficient functioning of the judicial system (paragraph 26 of the aforementioned recommendation of the Committee of Ministers CM/Rec(2010)12). She considers that the collective and individual independence of the members of such bodies is directly linked, and complementary to, the independence of the judiciary as a whole, which is a key pillar of any democracy and essential to the protection of individual rights and freedoms. 19. The Commissioner considers that serious concerns remain with regard to the composition and independence of the newly constituted [NCJ]. She observes that under the new rules, 21 out of the 25 members of the body have been elected by Poland’s legislative and executive powers; this number includes the body’s 15 judicial members, who have been elected by Sejm. 20. The Commissioner considers that entrusting the legislature with the task of electing the judicial members to the [NCJ] infringes on the independence of this body, which should be the constitutional guarantor of judicial independence in Poland. She considers that the selection of members of the judiciary should be a decision process independent of the executive or the legislature, in order to preserve the principles of separation of powers and the independence of the judiciary, and to avoid the risk of undue political influence. 1.3.2 THE SUPREME COURT’S COMPOSITION AND NEW CHAMBERS 25. The new legislation referred to in paragraph 22 above created two new special chambers of the Supreme Court: a Disciplinary Chamber, to adjudicate cases of judicial misconduct, and a Chamber of Extraordinary [Review] and Public Affairs, tasked with hearing cases concerning the validity of general elections or disputes regarding television and radio licensing.... 26. Despite being nominally positioned within the organisational structure of the Supreme Court, the Disciplinary Chamber, unlike that Court’s other chambers, is virtually exempt from the oversight of the Supreme Court’s First President. It notably has a separate chancellery and budget; moreover, the earnings of judges sitting on the Disciplinary Chamber are 40% higher than those of their fellow judges in other chambers of the Supreme Court.... 29. The Commissioner was informed that similarly to the newly composed [NCJ], many of the newly appointed members of the Disciplinary Chamber were former prosecutors or persons with links to the Minister of Justice (Prosecutor-General). Apparently, some of the new appointees have experienced a very rapid career progression, made possible by new rules governing judicial promotions; one had reportedly been a district court judge merely three years prior to his appointment to the Supreme Court.... 52. In tandem with the sweeping changes described in the previous sections, government officials in Poland have openly assailed the judiciary in order to justify the reforms being undertaken. In a speech delivered in July 2017, the former Prime Minister called Poland’s judiciary the ‘judicial corporation’, claiming that ‘in everybody’s immediate surrounding there is someone who has been injured by the judicial system’. In an op-ed published in the Washington Examiner in December 2017, the current Prime Minister argued that the Polish judiciary was a legacy of Communist system, characterised by ‘nepotism and corruption’; that judges demanded ‘[b]ribes (...) in some of the most lucrative-looking cases’; and that the courts generally worked to benefit the wealthy and the influential. The Prime Minister later made similar statements in other contexts, including in a speech given at a US university in April 2019. Other members of the ruling party called judges ‘a caste’ or ‘a group of cronies’. The current head of the political cabinet in the chancellery of the Prime Minister publicly implied that former judge-members of the National Council of the Judiciary ‘were hiding gold in their gardens and it is unclear where the money came from’. In support of the government’s reform of the judiciary, in September 2017 the government-controlled ‘Polish National Foundation’ initiated a two ‑ month campaign called ‘Fair Courts’. The campaign’s cost, estimated to amount to EUR 2.8 million, was cosponsored by a dozen or so of the largest state-owned companies. Using large black-and-white billboards, television commercials and a website, the campaign conveyed a negative image of judges, labelling them as ‘a special caste’, and portraying them as incompetent or indulging in unseemly or illegal behaviour, such as drunkenness, corruption, or petty theft ... 1.6.1 CONCLUSIONS AND RECOMMENDATIONS 61. The Commissioner regrets that the reform of the judiciary was accompanied by a publicly-financed campaign to discredit judges, as well as by a series of negative statements regarding the Polish judiciary made by high ranking Polish officials. She recalls that members of the executive and the legislature have a duty to avoid criticism of the courts, judges and judgments that would undermine the independence of or public confidence in the judiciary, in accordance with paragraph 18 of the Committee of Ministers’ recommendation CM/Rec(2010)12. In view of the highly stigmatising and harmful effect of statements such as the ones quoted above (in paragraph 52), the Commissioner urges the Polish authorities to exercise responsibility and lead by example in their public discourse, rather than using their powerful platform to tarnish the judiciary as a whole or to unduly attack the reputation of individual judges.” Parliamentary Assembly of the Council of Europe (a) Resolution 2188 (2017) 136. On 11 October 2017 the Parliamentary Assembly of the Council of Europe (PACE) adopted Resolution 2188 (2017) entitled “New threats to the rule of law in the Council of Europe Member States”. The Polish authorities were called upon to refrain from conducting any reform which would put at risk respect for the rule of law, and in particular the independence of the judiciary, and, in this context, to refrain from amending the 2011 Act on the National Council of the Judiciary in a way that would modify the procedure for appointing judges to the Council and would establish political control over the appointment process for judicial members. (b) Resolution 2316 (2020) 137. On 28 January 2020 PACE decided to open its monitoring procedure in respect of Poland, which is the only member State of the Council of Europe, among those belonging to the European Union, currently undergoing that procedure. In its Resolution 2316 (2020) of the same date entitled “The functioning of democratic institutions in Poland”, the Assembly stated: “7. The Assembly lauds the assistance given by the Council of Europe to ensure that the reform of the justice system in Poland is developed and implemented in line with European norms and rule of law principles in order to meet their stated objectives. However, it notes that numerous recommendations of the European Commission for Democracy through Law (Venice Commission) and other bodies of the Council of Europe have not been implemented or addressed by the authorities. The Assembly is convinced that many of the shortcomings in the current judicial system, especially with regard to the independence of the judiciary, could have been addressed or prevented by the implementation of these recommendations. The Assembly therefore calls upon the authorities to revisit the total reform package for the judiciary and amend the relevant legislation and practice in line with Council of Europe recommendations, in particular with regard to: ... 7.2. the reform of the National Council of the Judiciary, the Assembly expresses its concern about the fact that, counter to European rule of law standards, the 15 judges who are members of the National Council of the Judiciary are no longer elected by their peers but by the Polish Parliament. This runs counter to the principle of separation of powers and the independence of the judiciary. As a result, the National Council of the Judiciary can no longer be seen as an independent self-governing body of the judiciary. The Assembly therefore urges the authorities to reinstate the direct election, by their peers, of the judges who are members of the National Council of the Judiciary; ... 7.4. the reform of the Supreme Court... The composition and manner of appointment of the members of the disciplinary and extraordinary appeals chambers of the Supreme Court, which include lay members, in combination with the extensive powers of these two chambers and the fact that their members were elected by the new National Council of the Judiciary, raise questions about their independence and their vulnerability to politicisation and abuse. This needs to be addressed urgently.” (c) Resolution 2359 (2021) 138. On 26 January 2021 PACE adopted Resolution 2359 (2021) entitled “Judges in Poland and in the Republic of Moldova must remain independent”. The Assembly called on the Polish authorities to: 14.2. review the changes made to the functioning of the Constitutional [Court] and the ordinary justice system in the light of Council of Europe standards relating to the rule of law, democracy and human rights; following the findings of the Venice Commission included in its Opinion No. 977/2020 of 22 June 2020 concerning in particular the amendments to the Law on the Ordinary Courts introduced since 2017, it would be advisable to: 14.2.1. revert to the previous system of electing judicial members of the National Council of the Judiciary or adopt a reform of the justice system which would effectively ensure its autonomy from the political power; 14.2.2. review the composition, internal structure and powers of the Disciplinary Chamber and the Extraordinary [Review] and Public Affairs Chamber of the Supreme Court; 14.2.3. review the procedure for the election of the First President of the Supreme Court; 14.2.4. reinstate the powers of the assemblies of judges with respect to the appointment, promotion and dismissal of judges, 14.3. refrain from taking any legislative or administrative measures or other initiatives which might pose a risk to the rule of law and, in particular, to the independence of the judiciary; 14.4. co-operate fully with Council of Europe organs and bodies, including the Venice Commission, and with the institutions of the European Union, on issues related to justice reform; 14.5. institute a constructive and sustainable dialogue on justice reform with all stakeholders, including opposition parties, representatives of the judiciary, bar associations, civil society and academic experts.” The Venice Commission (a) Report on Judicial Appointments 139. In its Report on Judicial Appointments (CDL-AD(2007)028), adopted at its 70th Plenary Session (16-17 March 2007), the European Commission for Democracy Through Law (“Venice Commission”) held as follows (footnotes omitted): “3. International standards in this respect are more in favour of the extensive depolitisation of the [judicial appointment] process. However no single non-political ‘model’ of appointment system exists, which could ideally comply with the principle of the separation of powers and secure full independence of the judiciary.... 5. In some older democracies, systems exist in which the executive power has a strong influence on judicial appointments. Such systems may work well in practice and allow for an independent judiciary because the executive is restrained by legal culture and traditions, which have grown over a long time. 6. New democracies, however, did not yet have a chance to develop these traditions, which can prevent abuse. Therefore, at least in new democracies explicit constitutional provisions are needed as a safeguard to prevent political abuse by other state powers in the appointment of judges. 7. In Europe, methods of appointment vary greatly according to different countries and their legal systems; furthermore they can differ within the same legal system according to the type of judges to be appointed....” Direct appointment system 13. In the direct appointment system the appointing body can be the Head of State. This is the case in Albania, upon the proposal of the High Council of Justice; in Armenia, based on the recommendation of the Judicial Council; in the Czech Republic; in Georgia, upon the proposal of the High Council of Justice; in Greece, after prior decision of the Supreme Judicial Council; in Ireland; in Italy upon the proposal of the High Council of the Judiciary; in Lithuania, upon the recommendations submitted by the “special institution of judges provided by law”; in Malta, upon the recommendation of the Prime Minister; in Moldova, upon proposal submitted by the Superior Council of Magistrates; in the Netherlands at the recommendation of the court concerned through the Council for the Judiciary; in Poland on the motion of the National Council of the Judiciary in Romania based on the proposals of the Superior Council of Magistracy; in the Russian Federation judges of ordinary federal courts are appointed by the President upon the nomination of the Chairman of the Supreme Court and of the Chairman of the Higher Arbitration Court respectively - candidates are normally selected on the basis of a recommendation by qualification boards; in Slovakia on the basis of a proposal of the Judiciary Council; in Ukraine, upon the proposal of the High Council of Justice. 14. In assessing this traditional method, a distinction needs to be made between parliamentary systems where the president (or monarch) has more formal powers and (semi-) presidential systems. In the former system the President is more likely to be withdrawn from party politics and therefore his or her influence constitutes less of a danger for judicial independence. What matters most is the extent to which the head of state is free in deciding on the appointment. It should be ensured that the main role in the process is given to an independent body – the judicial council. The proposals from this council may be rejected only exceptionally, and the President would not be allowed to appoint a candidate not included on the list submitted by it. As long as the President is bound by a proposal made by an independent judicial council (see below), the appointment by the President does not appear to be problematic.” (b) Opinion on the Draft [2017 Amending Act], on the Draft [2017 Act on the Supreme Court] proposed by the President of Poland and on the Act on the Organisation of Ordinary Courts 140. The Opinion on the Draft [2017 Amending Act], on the Draft [2017 Act on the Supreme Court] proposed by the President of Poland, and on the Act on the Organisation of Ordinary Courts adopted by the Venice Commission at its 113th Plenary Session on 11 December 2017 (Opinion No. CDL-AD(2017)031), read, in so far as relevant, as follows: “17. In the past decades many new European democracies created judicial councils – compound bodies with functions regarding the appointment, training, promotion and discipline of judges. The main function of such a body is to ensure the accountability of the judiciary, while preserving its independence. The exact composition of the judicial councils varies, but it is widely accepted that at least half of the council members should be judges elected by their peers. The Venice Commission recalls its position expressed in the Rule of Law Checklist, in the Report of the Judicial Appointments and in the Report on the Independence of the Judicial System (Part I: The Independence of Judges) to the effect that “a substantial element or a majority of the members of the Judicial Council should be elected by the Judiciary itself”.... A. The Draft Act on the National Council of the Judiciary ... 1. New method of election of 15 judicial members of the NCJ ... 24. [The draft 2017 Amending Act] is at odds with the European standards (as far as those countries which have a judicial council are concerned), since the 15 judicial members are not elected by their peers, but receive their mandates from Parliament. Given that six other members of the NCJ are parliamentarians, and four others are ex officio members or appointed by the President of the Republic (see Article 187 § 1 of the Constitution), the proposed reform will lead to a NCJ dominated by political nominees. Even if several ‘minority candidates’ are elected, their election by Parliament will inevitably lead to more political influence on the composition of the NCJ and this will also have immediate influence on the work of this body, which will become more political in its approach ... B. The Draft Act on the Supreme Court ... 1. Creation of new chambers ... 36. In principle, the Venice Commission sees no difficulty with the division of chambers with specialised jurisdiction within a supreme court. However, in the case of Poland, the newly created Extraordinary [Review] and Public Affairs Chamber (hereinafter – the ‘Extraordinary Chamber’) and Disciplinary Chamber are worth particular mention. These two chambers will have special powers which put them over and above the other chambers. They will also include lay members who will be selected by the Senate and appointed on the benches on a case-by-case basis by the First President of the SC. 37. The Extraordinary Chamber will be de facto above other chambers because it will have the power to review any final and legally binding judgment issued by the ‘ordinary’ chambers (Articles 25 and 86). In addition, this chamber will be entrusted with the examination of politically sensitive cases (electoral disputes, validation of elections and referendums, etc.), and will examine other disputes between citizens and the State. 38. The Disciplinary Chamber will also be given special status in the sense that it will have jurisdiction over disciplinary cases of judges of ‘ordinary’ chambers (Article 26), and will deal with the cases of excessive length of proceedings in other chambers of the SC. It will also be competent to deal with other disciplinary cases which may fall within the jurisdiction of the SC. That being said, the Venice Commission sees a greater justification for the creation of a special disciplinary chamber entrusted with the competency to deal with disciplinary cases of the SC judges, by comparison with the creation of the Extraordinary Chamber... 40. The Draft Act proposes to create new chambers, which will be headed by largely autonomous office-holders. The heads of those two new chambers will be appointed directly by the President of the Republic under special rules, and will have a comparable legitimacy with the First President. In respect of the Disciplinary Chamber the First President will have very few powers, which weakens his role within the SC, foreseen by the Constitution. Furthermore, by virtue of their special competencies, the two chambers will be de facto superior to other, “ordinary” chambers of the SC. Establishing such hierarchy within the SC is problematic. It creates “courts within the court” which would need a clear legal basis in the Constitution, since the Constitution only provides for one SC, its decision being final. ... 6. Cumulative effect of the proposed amendments 89. The proposed reform, if implemented, will not only threaten the independence of the judges of the Supreme Court, but also create a serious risk for the legal certainty and enable the President of the Republic to determine the composition of the chamber dealing with the politically particularly sensitive electoral cases. While the Memorandum speaks of the ‘de-communization’ of the Polish judicial system, some elements of the reform have a striking resemblance with the institutions which existed in the Soviet Union and its satellites ... 92. These two chambers [the Disciplinary Chamber and the Extraordinary Chamber] will have a special status: while notionally they are a part of the SC, in reality they are above all other chambers. Hence, there is a risk that the whole judicial system will be dominated by these new judges, elected with the decisive influence of the ruling majority. Moreover, their powers will extend even back in time, since the “extraordinary control” powers will give the Extraordinary Chamber the possibility to revive any old case decided up to twenty years ago ... 95. In sum, the two Draft Acts put the judiciary under direct control of the parliamentary majority and of the President of the Republic. This is contrary to the very idea of separation of powers, proclaimed by Article 10 of the Polish Constitution, and of the judicial independence, guaranteed by Article 173 thereof. Both principles form also an integral part of the constitutional heritage of all European states governed by the rule of law. The Venice Commission, therefore, urges the Polish authorities to subject the two Draft Acts to a deep and comprehensive revision. IV. Conclusions 130. Several key aspects of the reform raise particular concern and call for the following recommendations: A. The Presidential Draft Act on the National Council of the Judiciary - The election of the 15 judicial members of the National Council of the Judiciary (the NCJ) by Parliament, in conjunction with the immediate replacement of the currently sitting members, will lead to a far reaching politicisation of this body. The Venice Commission recommends that, instead, judicial members of the NCJ should be elected by their peers, as in the current Act. B. The Presidential Draft Act on the Supreme Court - The creation of two new chambers within the Supreme Court (Disciplinary Chamber and Extraordinary Chamber), composed of newly appointed judges, and entrusted with special powers, puts theses chambers above all others and is ill ‑ advised. The compliance of this model with the Constitution must be checked; in any event, lay members should not participate in the proceedings before the Supreme Court; - The proposed system of the extraordinary review of final judgments is dangerous for the stability of the Polish legal order. It is in addition problematic that this mechanism is retroactive and permits the reopening of cases decided long before its enactment (as from 1997); - The competency for the electoral disputes should not be entrusted to the newly created Extraordinary Chamber; ... 131. The Venice Commission stresses that the combination of the changes proposed by the three documents under consideration, and of the 2016 Act on Public Prosecutor’s Office amplifies the negative effect of each of them to the extent that it puts at serious risks the independence of all parts of the judiciary in Poland.” (c) Joint Urgent Opinion of the Venice Commission and the Directorate General of Human Rights and Rule of Law (DGI) of the Council of Europe 141. The Joint Urgent Opinion of the Venice Commission and the Directorate General of Human Rights and Rule of Law (DGI) of the Council of Europe on Amendments to the Law on the Ordinary Courts, the [2017 Act on the Supreme Court], and some other laws adopted on 16 January 2020 and endorsed by the Venice Commission on 18 June 2020 by written procedure replacing the 123 rd Plenary Session (Opinion No. 977/2020), reads, in so far as relevant, as follows: “10. The simultaneous and drastic reduction of the involvement of judges in the work of the [NCJ], filling the new chambers of the Supreme Court with newly appointed judges, mass replacement of court presidents, combined with the important increase of the powers of the President of the Republic and of the Minister of Justice/Prosecutor General – and this was the result of the 2017 reform – was alarming and led to the conclusion that the 2017 reform significantly reduced the independence of the Polish judiciary vis-à-vis the Government and the ruling majority in Parliament ... V. Conclusions 61. Other solutions have to be found. In order to avoid further deepening of the crisis, the Venice Commission invites the Polish legislator to seriously consider the implementation of the main recommendations contained in the 2017 Opinion of the Venice Commission, namely: • to return to the election of the 15 judicial members of the National Council of the Judiciary (the NCJ) not by Parliament but by their peers; • to significantly revise the composition and internal structure of the two newly created ‘super-chambers’, and reduce their powers, in order to transform them into normal chambers of the Supreme Court; • to return to the pre-2017 method of election of candidates to the position of the First President of the Supreme Court, or to develop a new model where each candidate proposed to the President of the Republic enjoys support of a significant part of the Supreme Court judges; • to restore the powers of the judicial community in the questions of appointments, promotions, and dismissal of judges; to ensure that court presidents cannot be appointed.” Consultative Council of European Judges (a) The 2007 Opinion 142. In Opinion no. 10 (2007) of 23 November 2007 on “the Council for the Judiciary at the service of society” the Consultative Council of European Judges (“CCJE”) made the following relevant observations: “15. The composition of the Council for the Judiciary shall be such as to guarantee its independence and to enable it to carry out its functions effectively. 16. The Council for the Judiciary can be either composed solely of judges or have a mixed composition of judges and non judges. In both cases, the perception of self-interest, self protection and cronyism must be avoided. 17. When the Council for the Judiciary is composed solely of judges, the CCJE is of the opinion that these should be judges elected by their peers. 18. When there is a mixed composition (judges and non judges), the CCJE considers that, in order to prevent any manipulation or undue pressure, a substantial majority of the members should be judges elected by their peers.... III. C. 1. Selection of judge members 25. In order to guarantee the independence of the authority responsible for the selection and career of judges, there should be rules ensuring that the judge members are selected by the judiciary. 26. The selection can be done through election or, for a limited number of members (such as the presidents of Supreme Court or Courts of appeal), ex officio. 27. Without imposing a specific election method, the CCJE considers that judges sitting on the Council for the Judiciary should be elected by their peers following methods guaranteeing the widest representation of the judiciary at all levels. 28. Although the roles and tasks of professional associations of judges and of the Council for the Judiciary differ, it is independence of the judiciary that underpins the interests of both. Sometimes professional organisations are in the best position to contribute to discussions about judicial policy. In many states, however, the great majority of judges are not members of associations. The participation of both categories of judges (members and non-members of associations) in a pluralist formation of the Council for the Judiciary would be more representative of the courts. Therefore, judges’ associations must be allowed to put forward judge candidates (or a list of candidates) for election, and the same arrangement should be available to judges who are not members of such associations. It is for states to design an appropriate electoral system including these arrangements.” (b) Magna Carta of Judges 143. The Magna Carta of Judges (Fundamental Principles) was adopted by the CCJE in November 2010. The relevant paragraphs read as follows: “ Rule of law and justice 1. The judiciary is one of the three powers of any democratic state. Its mission is to guarantee the very existence of the Rule of Law and, thus, to ensure the proper application of the law in an impartial, just, fair and efficient manner. Judicial Independence 2. Judicial independence and impartiality are essential prerequisites for the operation of justice. 3. Judicial independence shall be statutory, functional and financial. It shall be guaranteed with regard to the other powers of the State, to those seeking justice, other judges and society in general, by means of national rules at the highest level. The State and each judge are responsible for promoting and protecting judicial independence. 4. Judicial independence shall be guaranteed in respect of judicial activities and in particular in respect of recruitment. Guarantees of independence 5. Decisions on selection, nomination and career shall be based on objective criteria and taken by the body in charge of guaranteeing independence.... Body in charge of guaranteeing independence 13. To ensure independence of judges, each State shall create a Council for the Judiciary or another specific body, itself independent from legislative and executive powers, endowed with broad competences for all questions concerning their status as well as the organisation, the functioning and the image of judicial institutions. The Council shall be composed either of judges exclusively or of a substantial majority of judges elected by their peers. The Council for the Judiciary shall be accountable for its activities and decisions.” (c) The 2017 Opinion 144. In its 12 October 2017 “Opinion of the CCJE Bureau following the request of the Polish National Council of the Judiciary to provide an opinion with respect to the Draft Act of September 2017 presented by the President of Poland amending the Act on the Polish National Council of the Judiciary and certain other acts [6] ” (CCJE-BU(2017)9REV), the CCJE stated among other things as follows: “11. Thus, the most significant concerns caused by the adopted and later vetoed act on the Council related to: - the selection methods for judge members of the Council; - the pre-term removal of the judges currently sitting as members of the Council; - the structure of the Council. 12. Out of these concerns, the only significant change in the present draft presented by the President of Poland is the requirement for a majority of 3/5 in Sejm for electing 15 judge members of the Council. However, this does not change in any way the fundamental concern of transferring the power to appoint members of the Council from the judiciary to the legislature, resulting in a severe risk of politicised judge members as a consequence of a politicised election procedure. This risk may be said to be even greater with the new draft, since it provides that if a 3/5 majority cannot be reached, those judges having received the largest number of votes will be elected. 15. In addition, the CCJE Bureau recalls that the OSCE/ODIHR adopted its Final Opinion on 5 May 2017 on the previous draft, underlining that “the proposed amendments would mean, in brief, that the legislature, rather than the judiciary would appoint the fifteen judge representatives to the Judicial Council and that legislative and executive powers would be allowed to exercise decisive influence over the process of selecting judges. This would jeopardize the independence of a body whose main purpose is to guarantee judicial independence in Poland F. Conclusions 20. The Bureau of the CCJE, which represents the CCJE members who are serving judges from all Council of Europe member States, reiterates once again that the Draft Act would be a major step back as regards judicial independence in Poland. It is also worrying in terms of the message it sends about the value of judges to society, their place in the constitutional order and their ability to provide a key public function in a meaningful way. 21. In order to fulfil European standards on judicial independence, the judge members of the National Council of the Judiciary of Poland should continue to be chosen by the judiciary. Moreover, the pre-term removal of the judges currently sitting as members of the Council is not in accordance with European standards and it endangers basic safeguards for judicial independence. 22. The Bureau of the CCJE is deeply concerned by the implications of the Draft Act for the principle of the separation of powers, as well as that of the independence of the judiciary, as it effectively means transferring the power to appoint members of the Polish National Council of the Judiciary from the judiciary to the legislature. The CCJE Bureau recommends that the Draft Act be withdrawn and that the existing law remain in force. Alternatively, any new draft proposals should be fully in line with the standards of the Council of Europe regarding the independence of the judiciary.” (d) The 2020 Report 145. In its “Report on judicial independence and impartiality in the Council of Europe member States (2019 edition)” of 30 March 2020 (9 CCJE-BU(2020)3) the CCJE made the following observations, among other things: “17. The ECtHR and the CCJE have recognised the importance of institutions and procedures guaranteeing the independent appointment of judges. The CCJE has recommended that every decision relating to a judge’s appointment, career and disciplinary action be regulated by law, based on objective criteria and be either taken by an independent authority or subject to guarantees, for example judicial review, to ensure that it is not taken other than on the basis of such criteria. Political considerations should be inadmissible irrespective of whether they are made within Councils for the Judiciary, the executive, or the legislature”. GRECO 146. In the light of the judicial reform of 2016-2018 in Poland, GRECO, Group of States against Corruption, decided at its 78th Plenary meeting (4 ‑ 8 December 2017) to apply its ad-hoc procedure to Poland. (a) Rule 34 Report of June 2018 147. As a result, GRECO adopted addendum to the Fourth Round Evaluation Report on Poland (Rule 34) at its 80th Plenary Meeting (Strasbourg, 18-22 June 2018). It addressed the following recommendations to Poland. Firstly, to amend the provisions on the election of judges to the NCJ, to ensure that at least half of the members of the NCJ are judges elected by their peers. Secondly to reconsider the establishment of the Chamber of Extraordinary Review and Public Affairs and Disciplinary Chamber at the Supreme Court and to reduce the involvement of the executive in the internal organisation of the Supreme Court. In respect of the structural changes in the Supreme Court and creation of two new Chambers, GRECO stated: “31. These structural reforms have been subject to extensive criticism in broad consensus by the international community, including bodies such as the Venice Commission, the Consultative Council of European Judges (CCJE), OSCE Office for Democratic Institutions and Human Rights (ODIHR) and the European Commission. For example, concerns have been raised that the procedure of extraordinary appeals is ‘dangerous for the stability of the Polish legal order’ and additionally problematic due to its retroactivity, permitting the reopening of cases determined long before the enactment of the LSC, which is not limited to newly established facts. Furthermore, the establishment of the special chambers for extraordinary appeals and for disciplinary matters has been criticised for creating a hierarchy within the court, in that these two chambers have been granted special status and may be seen as superior to the other ‘ordinary chambers’: the extraordinary appeals chamber may examine decisions taken by the ‘ordinary chambers’ of the SC, the disciplinary chamber having jurisdiction over disciplinary cases of judges sitting in the other chambers as well as a separate budget (and, in addition, judges of the disciplinary chamber receive a 40% higher salary). Moreover, the use of lay judges at the SC, which has been introduced as a way of bringing in a ‘social factor’ into the system, according to the Polish authorities, has also been criticised, partly for being alien to other judicial systems in Europe at the level of supreme courts, but also due to the unsuitability of lay persons for determining significant cases involving legal complexities. The fact that they are elected by the legislature, which has the potential of compromising their independence, is a particular concern in this respect.” (b) Rule 34 Report of December 2019 148. At its 84th Plenary Meeting (Strasbourg, 2 ‑ 6 December 2019, GrecoRC4(2019)23) GRECO adopted a Second Addendum to the Second Compliance Report including Follow-up to the Addendum to the Fourth Round Evaluation Report (Rule 34) of June 2018. The report was published on 16 December 2019. It concluded that “nothing ha[d] been done to amend the provisions on the elections of members of the National Council of the Judiciary, which in its current composition [did] not meet Council of Europe standards, to reduce the involvement of the executive in the internal organisation of the Supreme Court [and] to amend the disciplinary procedures applicable to Supreme Court judges”. European UnionEuropean Union law European Union law European Union law (a) The Charter of Fundamental Rights of the European Union 149. Article 47 of the Charter of Fundamental Rights of the European Union (“the Charter”), reads, in so far as relevant: “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.” (b) Treaty on European Union 150. Article 2 of the Treaty on European Union (“TEU”) provides: “The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are ordinary to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.” Article 19(1) TEU reads as follows: “1. The Court of Justice of the European Union shall include the Court of Justice, the General Court and specialised courts. It shall ensure that in the interpretation and application of the Treaties the law is observed. Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.” (c) Consolidated version of the Treaty on the Functioning of the European Union 151. Article 267 of the Consolidated version of the Treaty on the Functioning of the European Union (“TFEU”) provides: “The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning: (a) the interpretation of the Treaties; (b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union; Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon. Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court. If such a question is raised in a case pending before a court or tribunal of a Member State with regard to a person in custody, the Court of Justice of the European Union shall act with the minimum of delay.” (d) Council Directive 2000/78/EC 152. Article 9 (1) of the Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (Official Journal L 303, p. 16) concerns the “defence of rights” and reads: “Member States shall ensure that judicial and/or administrative procedures ... for the enforcement of obligations under this Directive are available to all persons who consider themselves wronged by failure to apply the principle of equal treatment to them, even after the relationship in which the discrimination is alleged to have occurred has ended.” The European Commission (a) Initiation of the rule of law framework 153. On 13 January 2016 the European Commission (“the Commission”) decided to examine the situation in Poland under the Rule of Law Framework. The exchanges between the Commission and the Polish Government were unable to resolve the concerns of the Commission. The Rule of Law Framework provided guidance for a dialogue between the Commission and the member State concerned to prevent the escalation of systemic threats to the rule of law. 154. On 27 July and 21 December 2016 the Commission adopted two recommendations regarding the rule of law in Poland, concentrating on issues pertaining to the Constitutional Court. In particular, the Commission found that there was a systemic threat to the rule of law in Poland, and recommended that the Polish authorities take appropriate action to address this threat as a matter of urgency. The Commission recommended, inter alia, that the Polish authorities: (a) implement fully the judgments of the Constitutional Court of 3 and 9 December 2015 which required that the three judges who had been lawfully nominated in October 2015 by the previous legislature be permitted to take up their judicial duties as judges of the Constitutional Court, and that the three judges nominated by the new legislature in the absence of a valid legal basis not be permitted to take up their judicial duties without being validly elected; and (b) publish and implement fully the judgments of the Constitutional Court of 9 March 2016, and ensure that the publication of future judgments was automatic and did not depend on any decision of the executive or legislative powers. (b) Rule of Law Recommendation (EU) 2017/1520 (third recommendation) 155. On 26 July 2017 the Commission adopted a third Recommendation regarding the Rule of Law in Poland, which complemented its two earlier recommendations. The concerns of the Commission related to the lack of an independent and legitimate constitutional review, and the new legislation relating to the Polish judiciary, which would structurally undermine the independence of the judiciary in Poland and would have an immediate and concrete impact on the independent functioning of the judiciary as a whole. In its third recommendation, the Commission considered that the situation whereby there was a systemic threat to the rule of law in Poland, as presented in its two earlier recommendations, had seriously deteriorated. The Commission reiterated that, notwithstanding the fact that there was a diversity of justice systems in Europe, ordinary European standards had been established on safeguarding judicial independence. The Commission observed – with great concern – that following the entry into force of the new laws referred to above, the Polish judicial system would no longer be compatible with European standards in this regard. (c) Rule of Law Recommendation (EU) 2018/103 (fourth recommendation) 156. On 20 December 2017 the Commission adopted a fourth Recommendation regarding the rule of law in Poland finding that the concerns raised in earlier recommendations had not been addressed and the situation of systemic threat to the rule of law had seriously deteriorated further. In particular, it stated that “the new laws raised serious concerns as regards their compatibility with the Polish Constitution as underlined by a number of opinions, in particular from the Supreme Court, the [NCJ] and the Polish Commissioner for Human Rights”. However, as explained in the Rule of Law Recommendation of 26 July 2017, an effective constitutional review of these laws was no longer possible. The Commission stated: “31. Also, the new regime for appointing judges-members of the [NCJ] raises serious concerns. Well established European standards, in particular the 2010 Recommendation of the Committee of Ministers of the Council of Europe, stipulate that ‘not less than half the members of [Councils for the Judiciary] should be judges chosen by their peers from all levels of the judiciary and with respect for pluralism inside the judiciary. It is up to the Member States to organise their justice systems, including whether or not to establish a Council for the Judiciary. However, where such a Council has been established, as it is the case in Poland, its independence must be guaranteed in line with European standards. 32. Until the adoption of the law on the [NCJ], the Polish system was fully in line with these standards since the [NCJ] was composed of a majority of judges chosen by judges. Articles 1(1) and 7 of the law amending the law on the [NCJ] would radically change this regime by providing that the 15 judges-members of the [NCJ] will be appointed, and can be re-appointed, by Sejm. In addition, there is no guarantee that under the new law Sejm will appoint judges-members of the Council endorsed by the judiciary, as candidates to these posts can be presented not only by groups of 25 judges, but also by groups of at least 2 000 citizens. Furthermore, the final list of candidates to which Sejm will have to give its approval en bloc is pre-established by a committee of Sejm. The new rules on appointment of judges-members of the [NCJ] significantly increase the influence of the Parliament over the Council and adversely affect its independence in contradiction with the European standards. The fact that the judges-members will be appointed by Sejm with a three fifths majority does not alleviate this concern, as judges-members will still not be chosen by their peers. In addition, in case such a three fifths majority is not reached, judges-members of the Council will be appointed by Sejm with absolute majority of votes. 33. This situation raises concerns from the point of view of the independence of the judiciary. For example, a district court judge who has to deliver a judgment in a politically sensitive case, while the judge is at the same time applying for a promotion to become a regional court judge, may be inclined to follow the position favoured by the political majority in order not to put his/her chances to obtain the promotion into jeopardy. Even if this risk does not materialise, the new regime does not provide for sufficient guarantees to secure the appearance of independence which is crucial to maintain the confidence which tribunals in a democratic society must inspire in the public. Also, assistant judges will have to be assessed by a politically influenced [NCJ] prior to their appointment as judge. 34. The Venice Commission concludes that the election of the 15 judicial members of the National Council of the Judiciary by Parliament, in conjunction with the immediate replacement of the currently sitting members, will lead to a far-reaching politicisation of this body. The Venice Commission recommends that, instead, judicial members of the [NCJ] should be elected by their peers, as in the current Act. It also observed that the law weakens the independence of the Council with regard to the majority in Parliament and contributes to a weakening of the independence of justice as a whole....” “3. FINDING OF A SYSTEMIC THREAT TO THE RULE OF LAW 38. Consequently, the Commission considers that the situation of a systemic threat to the rule of law in Poland as presented in its Recommendations of 27 July 2016, 21 December 2016, and 26 July 2017 has seriously deteriorated further. 39. The Commission underlines that whatever the model of the justice system chosen, the rule of law requires to safeguard the independence of the judiciary, separation of powers and legal certainty. It is up to the Member States to organise their justice systems, including whether or not to establish a Council for the Judiciary the role of which is to safeguard judicial independence. However, where such a Council has been established by a Member State, as it is the case in Poland where the Polish Constitution has entrusted explicitly the [NCJ] with the task of safeguarding judicial independence, the independence of such Council must be guaranteed in line with European standards. It is with great concern that the Commission observes that as a consequence of the new laws referred to above, the legal regime in Poland would no longer comply with these requirements.” (d) Reasoned Proposal in Accordance with Article 7(1) TEU Regarding the Rule of Law in Poland 157. On 20 December 2017 the Commission launched the procedure under Article 7(1) TEU. This was the first time the procedure had been used. The Commission submitted a Reasoned Proposal (COM/2017/0360) to the Council of the European Union, inviting it to determine that there was a clear risk of a serious breach by the Republic of Poland of the rule of law, which was one of the values referred to in Article 2 TEU, and to address appropriate recommendations to Poland in this regard. Its relevant parts read as follows: “(135). The law modifies the internal structure of the Supreme Court, supplementing it with two new chambers. A new chamber of extraordinary control and public matters will assess cases brought under the new extraordinary appeal procedure. It appears that this new chamber will be composed in majority of new judges and will ascertain the validity of general and local elections and examining electoral disputes, including electoral disputes in European Parliament elections. In addition, a new autonomous disciplinary chamber composed solely of new judges will be tasked with reviewing in the first and second instance disciplinary cases against Supreme Court judges. These two new largely autonomous chambers composed with new judges raise concerns as regards the separation of powers. As noted by the Venice Commission, while both chambers are part of the Supreme Court, in practice they are above all other chambers, creating a risk that the whole judicial system will be dominated by these chambers which are composed of new judges elected with a decisive influence of the ruling majority. Also, the Venice Commission underlines that the law will make the judicial review of electoral disputes particularly vulnerable to political influence, creating a serious risk for the functioning of Polish democracy ...” 5. Finding a clear risk of a serious breach of the values referred to in Article 2 TEU ... (172). The Commission is of the opinion that the situation described in the previous sections represents a clear risk of a serious breach by the Republic of Poland of the rule of law referred to in Article 2 TEU. The Commission comes to this finding after having considered the facts set out above. (173). The Commission observes that within a period of two years more than 13 consecutive laws have been adopted affecting the entire structure of the justice system in Poland: the Constitutional [Court], the Supreme Court, the ordinary courts, the [NCJ], the prosecution service and the National School of Judiciary. The ordinary pattern of all these legislative changes is that the executive or legislative powers have been systematically enabled to interfere significantly with the composition, the powers, the administration and the functioning of these authorities and bodies. The legislative changes and their combined effects put at serious risk the independence of the judiciary and the separation of powers in Poland which are key components of the rule of law. The Commission also observes that such intense legislative activity has been conducted without proper consultation of all the stakeholders concerned, without a spirit of loyal cooperation required between state authorities and without consideration for the opinions from a wide range of European and international organisations.” 158. The procedure under Article 7(1) TEU is still under consideration before the Council of the European Union. The European Parliament (a) The 2017 Resolution 159. On 15 November 2017 the European Parliament adopted a resolution on the situation of the rule of law and democracy in Poland (2017/2931(RSP)). The resolution reiterated that the independence of the judiciary was enshrined in Article 47 of the Charter and Article 6 of the Convention, and was an essential requirement of the democratic principle of the separation of powers, which was also reflected in Article 10 of the Polish Constitution. It expressed deep concern at the redrafted legislation relating to the Polish judiciary, in particular, its potential to undermine structurally judicial independence and weaken the rule of law in Poland. The Polish Parliament and the Government were urged to implement fully all recommendations of the Commission and the Venice Commission, and to refrain from conducting any reform which would put at risk respect for the rule of law, and in particular the independence of the judiciary. In this respect it called for postponement of the adoption of any laws until a proper assessment had been made by the Commission and the Venice Commission. (b) The 2020 Resolution 160. The European Parliament’s resolution of 17 September 2020 on the proposal for a Council decision on the determination of a clear risk of a serious breach of the rule of law by the Republic of Poland (2017/0360R(NLE)), in so far as relevant, reads as follows: “The composition and functioning of the Disciplinary Chamber and Extraordinary Chamber of the Supreme Court [The European Parliament] 20. Recalls that, in 2018, two new chambers within the Supreme Court were created, namely the Disciplinary Chamber and the Extraordinary Chamber, which were staffed with newly appointed judges selected by the new National Council of the Judiciary and entrusted with special powers – including the power of the Extraordinary Chamber to quash final judgments taken by lower courts or by the Supreme Court itself by way of extraordinary review, and the power of the Disciplinary Chamber to discipline other judges of the Supreme Court and of ordinary courts, creating de facto a ‘Supreme Court within the Supreme Court’; 21. Recalls that, in its ruling of 19 November 2019, the Court of Justice, answering a request for a preliminary ruling by the Supreme Court (Labour and Social Security Chamber, hereinafter the ‘Labour Chamber’) concerning the Disciplinary Chamber, ruled that national courts have a duty to disregard provisions of national law which reserve jurisdiction to hear a case where Union law may be applied to a body that does not meet the requirements of independence and impartiality; 22. Notes that the referring Supreme Court (Labour Chamber) subsequently concluded in its judgment of 5 December 2019 that the Disciplinary Chamber does not fulfil the requirements of an independent and impartial tribunal within the meaning of Polish and Union law, and that the Supreme Court (Civil, Criminal and Labour Chambers) adopted a resolution on 23 January 2020 reiterating that the Disciplinary Chamber is not a court due to its lack of independence and therefore its judgments cannot be considered to be judgments given by a duly appointed court; notes with grave concern that the Polish authorities have declared that those decisions are of no legal significance when it comes to the continuing functioning of the Disciplinary Chamber and the new National Council of the Judiciary, and that the Constitutional [Court] declared the Supreme Court resolution unconstitutional on 20 April 2020, creating a dangerous judiciary duality in Poland in open violation of the primacy of Union law and in particular of Article 19(1) TEU as interpreted by the Court of Justice in that it prevents the effectiveness and application of the Court of Justice’s ruling of 19 November 2019 by the Polish courts; 23. Notes the order of the Court of Justice of 8 April 2020 instructing Poland to immediately suspend the application of the national provisions on the powers of the Disciplinary Chamber and calls on the Polish authorities to swiftly implement the order; calls on the Polish authorities to fully comply with the order and calls on the Commission to submit an additional request to the Court of Justice seeking that payment of a fine be ordered in the event of persisting non-compliance; calls on the Commission to urgently start infringement proceedings in relation to the national provisions on the powers of the Extraordinary Chamber, since its composition suffers from the same flaws as the Disciplinary Chamber; The composition and functioning of the new National Council of the Judiciary 24. Recalls that it is up to the Member States to establish a council for the judiciary, but that, where such council is established, its independence must be guaranteed in line with European standards and the Member State’s constitution; recalls that, following the reform of the National Council of the Judiciary, which is the body responsible for safeguarding the independence of the courts and judges in accordance with Article 186(1) of the Polish Constitution, by means of the Act of 8 December 2017 amending the Act on the National Council of the Judiciary and certain other acts, the judicial community in Poland was deprived of the power to delegate representatives to the National Council of the Judiciary, and hence its influence on recruitment and promotion of judges; recalls that before the reform, 15 out of 25 members of the National Council of the Judiciary were judges elected by their peers, while since the 2017 reform, those judges are elected by the Polish parliament; strongly regrets that, taken in conjunction with the premature termination in early 2018 of the mandates of all the members appointed under the old rules, this measure led to a far-reaching politicisation of the National Council of the Judiciary; 25. Recalls that the Supreme Court, implementing the criteria set out by the Court of Justice in its judgment of 19 November 2019, found in its judgment of 5 December 2019 and in its decisions of 15 January 2020, as well as in its resolution of 23 January 2020, that the decisive role of the new National Council of the Judiciary in the selection of the judges of the newly created Disciplinary Chamber undermines the latter’s independence and impartiality; is concerned about the legal status of the judges appointed or promoted by the new National Council of the Judiciary in its current composition and about the impact their participation in adjudicating may have on the validity and legality of proceedings; 26. Recalls that the European Network of Councils for the Judiciary suspended the new National Council of the Judiciary on 17 September 2018 because it no longer fulfilled the requirements of being independent of the executive and legislature and initiated the expulsion procedure in April 2020; ... 67. Calls on the Council to resume the formal hearings - the last of which was held as long ago as December 2018 - as soon as possible and to include in those hearings all the latest and major negative developments in the areas of rule of law, democracy and fundamental rights; urges the Council to finally act under the Article 7(1) TEU procedure by finding that there is a clear risk of a serious breach by the Republic of Poland of the values referred to in Article 2 TEU, in the light of overwhelming evidence thereof as displayed in this resolution and in so many reports of international and European organisations, the case law of the Court of Justice and the European Court of Human Rights and reports by civil society organisations; strongly recommends that the Council address concrete recommendations to Poland, as provided for in Article 7(1) TEU, as a follow‑up to the hearings, and that it indicate deadlines for the implementation of those recommendations; calls furthermore on the Council to commit to assessing the implementation of these recommendations in a timely manner; calls on the Council to keep Parliament regularly informed and closely involved and to work in a transparent manner, to allow for meaningful participation and oversight by all European institutions and bodies and by civil society organisations; ...” Court of Justice of the European Union (a) Judgment of the Court of Justice of the European Union (Grand Chamber) in the case of Commission v. Poland of 24 June 2019 (Case C-619/18) 161. On 24 June 2019 the Grand Chamber of the Court of Justice of the European Union (“CJEU”) delivered its judgment in the case of Commission v. Poland, which mainly concerned the lowering of the retirement age for Supreme Court judges to 65 and which applied to judges of the court appointed before the date on which the relevant law had entered into force. The CJEU held, in so far as relevant, as follows: “ 111. In that connection, the fact that an organ of the State such as the President of the Republic is entrusted with the power to decide whether or not to grant any such extension is admittedly not sufficient in itself to conclude that that principle has been undermined. However, it is important to ensure that the substantive conditions and detailed procedural rules governing the adoption of such decisions are such that they cannot give rise to reasonable doubts, in the minds of individuals, as to the imperviousness of the judges concerned to external factors and as to their neutrality with respect to the interests before them.... 115. In the second place, with regard to the fact that the New Law on the Supreme Court provides that the National Council of the Judiciary is required to deliver an opinion to the President of the Republic before the latter adopts his or her decision, it is admittedly true that the intervention of such a body, in the context of a procedure for extending the period during which a judge carries out his or her duties beyond the normal retirement age, may, in principle, be such as to contribute to making that procedure more objective. 116. However, that is only the case in so far as certain conditions are satisfied, in particular in so far as that body is itself independent of the legislative and executive authorities and of the authority to which it is required to deliver its opinion, and in so far as such an opinion is delivered on the basis of criteria which are both objective and relevant and is properly reasoned, such as to be appropriate for the purposes of providing objective information upon which that authority can take its decision.” (b) Judgment of the Court of Justice of the European Union (Grand Chamber) of 19 November 2019 ( A.K. and Others, Independence of the Disciplinary Chamber of the Supreme Court; Joined Cases C ‑ 585/18, C ‑ 624/18, C ‑ 625/18) 162. In August and September 2018, the Labour and Social Security Chamber of the Supreme Court made three requests to the CJEU for preliminary rulings in three cases pending before it. The requests mainly concerned the question whether the newly established Disciplinary Chamber of the Supreme Court of Poland satisfied, in the light of the circumstances in which it was formed and its members appointed, the requirements of independence and impartiality required under Article 47 of the Charter of Fundamental Rights of the European Union. The questions read as follows: “In Case C ‑ 585/18, the questions referred are worded as follows: ‘(1) On a proper construction of the third paragraph of Article 267 TFEU, read in conjunction with Article 19(1) and Article 2 TEU and Article 47 of the [Charter], is a newly created chamber of a court of last instance of a Member State which has jurisdiction to hear an action by a national court judge and which must be composed exclusively of judges selected by a national body tasked with safeguarding the independence of the courts (the [NCJ]), which, having regard to the systemic model for the way in which it is formed and the way in which it operates, is not guaranteed to be independent from the legislative and executive authorities, an independent court or tribunal within the meaning of EU law? (2) If the answer to the first question is negative, should the third paragraph of Article 267 TFEU, read in conjunction with Article 19(1) and Article 2 TEU and Article 47 of the [Charter of Fundamental Rights], be interpreted as meaning that a chamber of a court of last instance of a Member State which does not have jurisdiction in the case but meets the requirements of EU law for a court and is seized of an appeal in a case falling within the scope of EU law should disregard the provisions of national legislation which preclude it from having jurisdiction in that case?’ 52. In Cases C ‑ 624/18 and C ‑ 625/18, the questions referred were worded as follows: ‘(1) Should Article 47 of the [Charter], read in conjunction with Article 9(1) of [Directive 2000/78], be interpreted as meaning that, where an appeal is brought before a court of last instance in a Member State against an alleged infringement of the prohibition of discrimination on the ground of age in respect of a judge of that court, together with a motion for granting security in respect of the reported claim, that court — in order to protect the rights arising from EU law by ordering an interim measure provided for under national law — must refuse to apply national provisions which confer jurisdiction, in the case in which the appeal has been lodged, on a chamber of that court which is not operational by reason of a failure to appoint judges to be its members? (2) In the event that judges are appointed to adjudicate within the chamber with jurisdiction under national law to hear and determine the action brought, on a proper construction of the third paragraph of Article 267 TFEU, read in conjunction with Article 19(1) and Article 2 TEU and Article 47 of the [Charter], is a newly created chamber of a court of last instance of a Member State which has jurisdiction to hear the case of a national court judge at first or second instance and which is composed exclusively of judges selected by a national body tasked with safeguarding the independence of the courts, namely the [NCJ], which, having regard to the systemic model for the way in which it is formed and the way in which it operates, is not guaranteed to be independent from the legislative and executive authorities, an independent court or tribunal within the meaning of EU law? (3) If the answer to the second question is negative, should the third paragraph of Article 267 TFEU, read in conjunction with Article 19(1) and Article 2 TEU and Article 47 of the [Charter], be interpreted as meaning that a chamber of a court of last instance of a Member State which does not have jurisdiction in the case but meets the requirements of EU law for a court seized with an appeal in an EU case should disregard the provisions of national legislation which preclude it from having jurisdiction in that case?” 163. On 27 June 2019 Advocate General Tanchev delivered his opinion in which he stated, among other things: “130. In the light of the above considerations, I am of the view that the Disciplinary Chamber forming the subject of the main proceedings does not satisfy the requirements of independence set out in Article 47 of the Charter. 131. I observe that the NCJ is a body whose mission is to safeguard the independence of courts and judges under the Polish constitution, and its functions include the selection of judges of the Supreme Court, including the Disciplinary Chamber, for appointment by the President of the Republic (see points 16 and 19 of this Opinion). Thus, the NCJ must be free of influence from the legislative and executive authorities in order to duly perform its tasks. 132. Yet, the manner of appointment of the members of the NCJ itself discloses deficiencies which appear likely to compromise its independence from the legislative and executive authorities. First, this is based on the fact that, according to Article 9a of the Law on the NCJ (see point 22 of this Opinion), the 15 judicial members of the NCJ are no longer appointed by the judges, but instead by Sejm. This means that the NCJ is composed of a majority of 23 of 25 members coming from the legislative and executive authorities. 133. Moreover, according to Article 11a(2) of the Law on the NCJ, candidates for the judicial members of the NCJ can be proposed by groups of at least 2,000 Polish citizens or 25 judges. Pursuant to Article 11d of that law, the election of those members to the NCJ is carried out by Sejm by a majority of 3/5 of the votes cast in the presence of at least half of the deputies entitled to vote (see points 24 and 25 of this Opinion). 134. Accordingly, it may be considered that the manner of appointment of the NCJ members entails influence of the legislative authorities over the NCJ, and it cannot be discounted that Sejm may choose candidates with little or no support from judges, with the result that the judicial community’s opinion may have insufficient weight in the process of the election of the NCJ members. Irrespective of the alleged aims of enhancing the democratic legitimacy and the representativeness of the NCJ, this arrangement is apt to adversely affect the independence of the NCJ. 135. It should also be borne in mind that the changes to the manner of appointment of the judicial members of the NCJ were accompanied by the premature termination of the mandates of the members of the NCJ. It has not been disputed that the Law on the NCJ provides for early termination of the judicial members of the NCJ at the moment of the election of the new members (see points 22 and 26 of this Opinion). Notwithstanding the purported aim to unify the terms of office of the NCJ membership, the immediate replacement of the currently sitting members of the NCJ in tandem with the new regime for appointment of the NCJ may be considered to further impair the NCJ’s independence from the legislative and executive authorities.” 164. On 19 November 2019 the CJEU delivered a preliminary ruling in Joined Cases C ‑ 585/18, C-624/18, C-625/18. Recalling that the interpretation of Article 47 of the Charter was borne out by the case-law of the European Court of Human Rights on Article 6 § 1 of the Convention, the Court of Justice reiterated the following principles, considered relevant in this context. It held among many other things as follows: “133. ... As far as concerns the circumstances in which the members of the Disciplinary Chamber were appointed, the Court points out, as a preliminary remark, that the mere fact that those judges were appointed by the President of the Republic does not give rise to a relationship of subordination of the former to the latter or to doubts as to the former’s impartiality, if, once appointed, they are free from influence or pressure when carrying out their role (see, to that effect, judgment of 31 January 2013, D. and A., C‑175/11, EU:C:2013:45, paragraph 99, and ECtHR, 28 June 1984, Campbell and Fell v. United Kingdom, CE:ECHR:1984:0628JUD000781977, § 79; 2 June 2005, Zolotas v. Greece, CE:ECHR:2005:0602JUD003824002 §§ 24 and 25; 9 November 2006, Sacilor Lormines v. France, CE:ECHR:2006:1109JUD006541101, § 67; and 18 October 2018, Thiam v. France, CE:ECHR:2018:1018JUD008001812, § 80 and the case-law cited). 134. However, it is still necessary to ensure that the substantive conditions and detailed procedural rules governing the adoption of appointment decisions are such that they cannot give rise to reasonable doubts, in the minds of individuals, as to the imperviousness of the judges concerned to external factors and as to their neutrality with respect to the interests before them, once appointed as judges (see, by analogy, judgment of 24 June 2019, Commission v Poland ( Independence of the Supreme Court ), C‑619/18, EU:C:2019:531, paragraph 111). 136. In the present cases, it should be made clear that Article 30 of the New Law on the Supreme Court sets out all the conditions which must be satisfied by an individual in order for that individual to be appointed as a judge of that court. Furthermore, under Article 179 of the Constitution and Article 29 of the New Law on the Supreme Court, the judges of the Disciplinary Chamber are, as is the case for judges who are to sit in the other chambers of the referring court, appointed by the President of the Republic on a proposal of the [NCJ], that is to say the body empowered under Article 186 of the Constitution to ensure the independence of the courts and of the judiciary. 137. The participation of such a body, in the context of a process for the appointment of judges, may, in principle, be such as to contribute to making that process more objective (see, by analogy, judgment of 24 June 2019, Commission v. Poland (Independence of the Supreme Court), C ‑ 619/18, EU:C:2019:531, paragraph 115; see also, to that effect, ECtHR, 18 October 2018, Thiam v. France, CE:ECHR:2018:1018JUD008001812, §§ 81 and 82). In particular, the fact of subjecting the very possibility for the President of the Republic to appoint a judge to the Sąd Najwyższy (Supreme Court) to the existence of a favourable opinion of the [NCJ] is capable of objectively circumscribing the President of the Republic’s discretion in exercising the powers of his office. 138. However, that is only the case provided, inter alia, that that body is itself sufficiently independent of the legislature and executive and of the authority to which it is required to deliver such an appointment proposal (see, by analogy, judgment of 24 June 2019, Commission v Poland (Independence of the Supreme Court), C ‑ 619/18, EU:C:2019:531, paragraph 116). 139. The degree of independence enjoyed by the [NCJ] in respect of the legislature and the executive in exercising the responsibilities attributed to it under national legislation, as the body empowered, under Article 186 of the Constitution, to ensure the independence of the courts and of the judiciary, may become relevant when ascertaining whether the judges which it selects will be capable of meeting the requirements of independence and impartiality arising from Article 47 of the Charter. 140. It is for the referring court to ascertain whether or not the [NCJ] offers sufficient guarantees of independence in relation to the legislature and the executive, having regard to all of the relevant points of law and fact relating both to the circumstances in which the members of that body are appointed and the way in which that body actually exercises its role. 141. The referring court has pointed to a series of elements which, in its view, call into question the independence of the [NCJ]. 142. In that regard, although one or other of the factors thus pointed to by the referring court may be such as to escape criticism per se and may fall, in that case, within the competence of, and choices made by, the Member States, when taken together, in addition to the circumstances in which those choices were made, they may, by contrast, throw doubt on the independence of a body involved in the procedure for the appointment of judges, despite the fact that, when those factors are taken individually, that conclusion is not inevitable. 143. Subject to those reservations, among the factors pointed to by the referring court which it shall be incumbent on that court, as necessary, to establish, the following circumstances may be relevant for the purposes of such an overall assessment: first, the [NCJ], as newly composed, was formed by reducing the ongoing four-year term in office of the members of that body at that time; second, whereas the 15 members of the [NCJ] elected among members of the judiciary were previously elected by their peers, those judges are now elected by a branch of the legislature among candidates capable of being proposed inter alia by groups of 2,000 citizens or 25 judges, such a reform leading to appointments bringing the number of members of the [NCJ] directly originating from or elected by the political authorities to 23 of the 25 members of that body; third, the potential for irregularities which could adversely affect the process for the appointment of certain members of the newly formed [NCJ]. 144. For the purposes of that overall assessment, the referring court is also justified in taking into account the way in which that body exercises its constitutional responsibilities of ensuring the independence of the courts and of the judiciary and its various powers, in particular if it does so in a way which is capable of calling into question its independence in relation to the legislature and the executive. 145. Furthermore, in the light of the fact that, as is clear from the case file before the Court, the decisions of the President of the Republic appointing judges to the Sąd Najwyższy (Supreme Court) are not amenable to judicial review, it is for the referring court to ascertain whether the terms of the definition, in Article 44(1) and (1a) of the Law on the [NCJ], of the scope of the action which may be brought challenging a resolution of the [NCJ], including its decisions concerning proposals for appointment to the post of judge of that court, allows an effective judicial review to be conducted of such resolutions, covering, at the very least, an examination of whether there was no ultra vires or improper exercise of authority, error of law or manifest error of assessment (see, to that effect, ECtHR, 18 October 2018, Thiam v. France, CE:ECHR:2018:1018JUD008001812, §§ 25 and 81). 146. Notwithstanding the assessment of the circumstances in which the new judges of the Disciplinary Chamber were appointed and the role of the [NCJ] in that regard, the referring court may, for the purposes of ascertaining whether that chamber and its members meet the requirements of independence and impartiality arising from Article 47 of the Charter, also wish to take into consideration various other features that more directly characterise that chamber. 147. That applies, first, to the fact referred to by the referring court that this court has been granted exclusive jurisdiction, under Article 27(1) of the New Law on the Supreme Court, to rule on cases of the employment, social Security and retirement of judges of the Sąd Najwyższy (Supreme Court), which previously fell within the jurisdiction of the ordinary courts. 148. Although that fact is not conclusive per se, it should, however, be borne in mind, as regards, in particular, cases relating to the retiring of judges of the Sąd Najwyższy (Supreme Court) such as those in the main proceedings, that the assignment of those cases to the Disciplinary Chamber took place in conjunction with the adoption, which was highly contentious, of the provisions of the New Law on the Supreme Court which lowered the retirement age of the judges of the Sąd Najwyższy (Supreme Court), applied that measure to judges currently serving in that court and empowered the President of the Republic with discretion to extend the exercise of active judicial service of the judges of the referring court beyond the new retirement age set by that law. 149. It must be borne in mind, in that regard, that, in its judgment of 24 June 2019, Commission v. Poland (Independence of the Supreme Court) (C ‑ 619/18, EU:C:2019:531), the Court found that, as a result of adopting those measures, the Republic of Poland had undermined the irremovability and independence of the judges of the Sąd Najwyższy (Supreme Court) and failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU. 150. Second, in that context, the fact must also be highlighted, as it was by the referring court, that, under Article 131 of the New Law on the Supreme Court, the Disciplinary Chamber must be constituted solely of newly appointed judges, thereby excluding judges already serving in the Sąd Najwyższy (Supreme Court). 151. Third, it should be made clear that, although established as a chamber of the Sąd Najwyższy (Supreme Court), the Disciplinary Chamber appears, by contrast to the other chambers of that court, and as is clear inter alia from Article 20 of the New Law on the Supreme Court, to enjoy a particularly high degree of autonomy within the referring court. 171. In the light of all of the foregoing considerations, the answer to the second and third questions referred in Cases C ‑ 624/18 and C ‑ 625/18 is: Article 47 of the Charter and Article 9(1) of Directive 2000/78 [7] must be interpreted as precluding cases concerning the application of EU law from falling within the exclusive jurisdiction of a court which is not an independent and impartial tribunal, within the meaning of the former provision. That is the case where the objective circumstances in which that court was formed, its characteristics and the means by which its members have been appointed are capable of giving rise to legitimate doubts, in the minds of subjects of the law, as to the imperviousness of that court to external factors, in particular, as to the direct or indirect influence of the legislature and the executive and its neutrality with respect to the interests before it and, thus, may lead to that court not being seen to be independent or impartial with the consequence of prejudicing the trust which justice in a democratic society must inspire in subjects of the law. It is for the referring court to determine, in the light of all the relevant factors established before it, whether that applies to a court such as the Disciplinary Chamber of the Sąd Najwyższy (Supreme Court). If that is the case, the principle of the primacy of EU law must be interpreted as requiring the referring court to disapply the provision of national law which reserves jurisdiction to hear and rule on the cases in the main proceedings to the abovementioned chamber, so that those cases may be examined by a court which meets the abovementioned requirements of independence and impartiality and which, were it not for that provision, would have jurisdiction in the relevant field.” (c) Judgment of the Court of Justice of the European Union (Grand Chamber) of 2 March 2021 (C ‑ 824/18) 165. In a request of 21 November 2018, supplemented on 26 June 2019, the Supreme Administrative Court applied to the CJEU for a preliminary ruling in cases involving persons who had applied for a position of judge at the Supreme Court, Civil and Criminal Chambers, but had not obtained a recommendation of the NCJ, which proposed other candidates instead. The first of the referred cases concerned appellant A.B., who had not been recommended to the Civil Chamber of the Supreme Court and who appealed against NCJ resolution no. 330/2018 to the Supreme Administrative Court. In that case the Supreme Administrative Court decided to stay the enforcement of the impugned resolution of NCJ (see paragraphs 38-45 and 122-125 above). 166. On 17 December 2020 Advocate General Tanchev delivered his opinion, which he concluded by the following proposal for the interpretation of the Article 19(1) TEU in conjunction with Article 267 TFEU (see paragraphs 150 and 151 above): “V. Conclusion ... 1. In view of the context and constellation of other elements present in Poland, as pointed out by the referring court ( inter alia : (a) the Polish legislature amending the national legal framework in order to make infringement actions and preliminary references before the Court become devoid of purpose; (b) that in spite of the fact that the referring court had suspended the [NCJ] resolutions at issue, the President of the Republic proceeded anyway to appoint to the position of judge of the Supreme Court concerned eight new judges proposed by the [NCJ] in the resolutions at issue here; and (c) the Polish legislature, in passing the Law of 26 April 2019, ignored rulings from the Constitutional Court which make clear that there should be judicial review of [NCJ] resolutions such as those in the main proceedings), Article 267 TFEU should be interpreted as precluding a national law such as the Law of 26 April 2019 in that that law decreed that proceedings such as those before the referring court should be discontinued by operation of law while at the same time excluding any transfer of the review of the appeals to another national court or the bringing again of the appeals before another national court; - the above arising in a context where the national court originally having jurisdiction in those cases has referred questions to the Court of Justice for a preliminary ruling following the successful initiation of the procedure for reviewing the [NCJ] resolutions, undermines the right of access to a court also in so far as, in the individual case pending before the court (originally) having jurisdiction to hear and determine it, it then denies that court both the possibility of successfully initiating preliminary ruling proceedings before the Court of Justice and the right to wait for a ruling from the Court, thereby undermining the EU principle of sincere cooperation. The removal of the (right to a) judicial remedy which was until then open in a case such as the one in the main proceedings and, in particular, the application of such a removal to litigants who – much as the applicants in the main proceedings – have already introduced such an action constitutes (in view of the context and constellation of the other elements pointed out by the referring court underlying that elimination) a measure of a nature which contributes to – indeed reinforces – the absence of the appearance of independence and impartiality on the part of the judges effectively appointed within the court concerned as well as the court itself. Such an absence of the appearance of independence and impartiality violates the second subparagraph of Article 19(1) TEU.” 167. On 2 March 2021 the CJEU delivered a preliminary ruling. The CJEU noted that under the rules amended in July 2018 it was provided that unless all the participants in a procedure for appointment to a position as judge at the Supreme Court challenged the relevant resolution of the NCJ, that resolution became final. In 2019 the rules were changed again, and it became impossible to lodge appeals against decisions of the NCJ concerning the recommendation or non-recommendation of candidates for appointment to judicial positions of the Supreme Court. Moreover, that reform declared such still pending appeals to be discontinued by operation of law, de facto depriving the Supreme Administrative Court of its jurisdiction on such matters. The court ruled: “Where amendments are made to the national legal system which, first, deprive a national court of its jurisdiction to rule in the first and last instance on appeals lodged by candidates for positions as judges at a court such as the Sąd Najwyższy (Supreme Court, Poland) against decisions of a body such as the Krajowa Rada Sądownictwa (National Council of the Judiciary, Poland) not to put forward their application, but to put forward that of other candidates to the President of the Republic of Poland for appointment to such positions, which, secondly, declare such appeals to be discontinued by operation of law while they are still pending, ruling out the possibility of their being continued or lodged again, and which, thirdly, in so doing, deprive such a national court of the possibility of obtaining an answer to the questions that it has referred to the Court for a preliminary ruling: ... – the second subparagraph of Article 19(1) TEU must be interpreted as precluding such amendments where it is apparent – a matter which it is for the referring court to assess on the basis of all the relevant factors – that those amendments are capable of giving rise to legitimate doubts, in the minds of subjects of the law, as to the imperviousness of the judges appointed, by the President of the Republic of Poland, on the basis of those decisions of the Krajowa Rada Sądownictwa (National Council of the Judiciary), to external factors, in particular, to the direct or indirect influence of the legislature and the executive, and as to their neutrality with respect to the interests before them and, thus, may lead to those judges not being seen to be independent or impartial with the consequence of prejudicing the trust which justice in a democratic society governed by the rule of law must inspire in subjects of the law. Where it is proved that those articles have been infringed, the principle of primacy of EU law must be interpreted as requiring the referring court to disapply the amendments at issue, whether they are of a legislative or constitutional origin, and, consequently, to continue to assume the jurisdiction previously vested in it to hear disputes referred to it before those amendments were made.” (d) Pending cases before the Court of Justice of the European Union (i) Case C-791/19 168. The Commission brough proceedings against Poland for failing to fulfil its obligations under the second subparagraph of Article 19(1) TEU and the second and third paragraphs of Article 267 TFEU on account of national measures establishing the new disciplinary regime for the judges of the Supreme Court and the ordinary courts instituted by legislation adopted in 2017. In particular the Commission contended that the Republic of Poland has infringed the second subparagraph of Article 19(1) TEU on four grounds regarding: first, the treatment of the content of judicial decisions as a disciplinary offence; second, the lack of independence and impartiality of the Disciplinary Chamber of the Supreme Court, third, the discretionary power of the President of that Chamber to designate the competent court, which prevents disciplinary cases from being decided by a court established by law; and, fourth, the failure to guarantee the examination of disciplinary cases within a reasonable time and the rights of the defence of accused judges. The Commission also claimed that Poland had infringed the second and third paragraphs of Article 267 TFEU because the right of national courts to make a reference for a preliminary ruling was limited by the possible initiation of disciplinary proceedings against judges who exercised that right. 169. On 8 April 2020 the CJEU (Grand Chamber) issued an interim order in a case initiated by the Commission and concerning disciplinary proceedings against judges pending before the Disciplinary Chamber of the Supreme Court. The interim order stated (translated from French): “The Republic of Poland is required, immediately and until the delivery of the judgment bringing to an end the proceedings in Case C-791/19, - to suspend the application of the provisions of Article 3(5), Article 27 and Article 73(1) of the [Act on the Supreme Court of 8 December 2017], as amended, constituting the basis for the jurisdiction of the [Disciplinary Chamber of the Supreme Court] to decide, both at first instance and on appeal, in disciplinary cases relating to judges; - to refrain from transferring cases pending before the [Disciplinary Chamber of the Supreme Court] to a judicial formation that does not meet the requirements of independence defined, inter alia, in the judgment of 19 November 2019, A. K. and others (Independence of the Disciplinary Chamber of the Supreme Court) (C ‑ 585/18, C-624/18 and C-625/18, EU:C:2019:982); and - to communicate to the European Commission, no later than one month after the notification of the Court’s order ordering the requested interim measures, all the measures it has adopted in order to comply fully with that order.” 170. On 6 May 2021 Advocate General Tanchev delivered his opinion in which he considered the complaints raised by the Commission to be well founded. With respect to the CJEU judgment of 19 November 2019 in the joined cases (see paragraph 164 above) the Advocate General stated: “95...Indeed, in my view, the judgment in A. K. and Others provides strong support for finding that, on the basis of the combination of elements invoked by the Commission and which were examined in that judgment, the Disciplinary Chamber does not meet the requirements of independence and impartiality under the second subparagraph of Article 19(1) TEU. As I concluded in my Opinion in that case, the mandates of the previous [NCJ] members were prematurely terminated and the changes to the method of appointment of the judicial members means that 23 out of 25 [NCJ] members come from the legislative and executive authorities which, taken together, disclose deficiencies that compromise the [NCJ’s] independence (See Opinion in A.K. and Others (points 131 to 137) .” The opinion concluded with a following proposal to the CJEU: “(1) declare that by allowing, pursuant to Article 107(1) of the Law on the ordinary courts and Article 97(1) and (3) of the Law on the Supreme Court, the content of judicial decisions to be treated as a disciplinary offence; by failing to guarantee, pursuant to Articles 3(5), 27 and 73(1) of the Law on the Supreme Court and Article 9a of the Law on the [NCJ], the independence and impartiality of the Disciplinary Chamber; by granting, pursuant to Articles 110(3) and 114(7) of the Law on the ordinary courts, the President of the Disciplinary Chamber the power to designate the competent disciplinary court of first instance in cases concerning ordinary court judges; by granting, pursuant to Article 112b of the Law on the ordinary courts, the Minister for Justice the power to appoint a Disciplinary Officer of the Minister for Justice and by providing, pursuant to Article 113a of the Law on the ordinary courts, that activities related to the appointment of ex officio defence counsel and that counsel’s taking up of the defence do not have a suspensive effect on the course of the proceedings and, pursuant to Article 115a(3) of the Law on the ordinary courts, that the disciplinary court is to conduct the proceedings despite the justified absence of the notified accused or his or her defence counsel, the Republic of Poland has failed to fulfil its obligations under the second subparagraph of Article 19(1) TEU; (2) declare that, by allowing the right of national courts to make a reference for a preliminary ruling to be limited by the possibility of the initiation of disciplinary proceedings, the Republic of Poland has failed to fulfil its obligations under the second and third paragraphs of Article 267 TFEU;” The date for the delivery of judgment in the case was set for 15 July 2021. (ii) Case C-508/19 M.F. v J.M. 171. On 3 July 2019 the Supreme Court lodged with the CJEU a request for a preliminary ruling concerning the process of judicial appointments to the Disciplinary Chamber of the Supreme Court. The domestic proceedings concerned a District Court judge, M.F., against whom, on 17 January 2019, disciplinary proceedings were instituted. In those proceedings it was alleged that her conduct resulted in overly lengthy proceedings and that she had failed to draw up written grounds for her judgments in a timely manner. On 28 January 2019, J.M., acting as a judge of the Supreme Court performing the duties of the President of the Supreme Court who directed the work of the Disciplinary Chamber, issued an order rendering the disciplinary court competent to hear her case at first instance. M.F. brought an action for a declaratory judgment together with an application for an injunction against J.M., seeking to establish that the latter was not a judge of the Supreme Court because he had not been appointed to the position of judge of the Supreme Court in the Disciplinary Chamber. According to the claimant his appointment on 20 September 2018 was ineffective because he had been appointed: (i) after the selection procedure had been conducted by the NCJ on the basis of an announcement of the President of the Republic of Poland, of 29 June 2018, which had been signed by the President without the countersignature of the Prime Minister; (ii) after the resolution of the NCJ which contained the motion to appoint J.M. to the position of Supreme Court judge in the Disciplinary Chamber had been appealed against to the Supreme Administrative Court on 17 September 2018 by one of the participants in the selection procedure, and before that court had ruled on the appeal. By order of 6 May 2019, the First President of the Supreme Court designated the Labour and Social Security Chamber to hear the case; the latter decided to stay the proceedings and refer questions to the CJEU for a preliminary ruling. 172. On 15 April 2021 Advocate General Tanchev delivered his opinion, in which he observed as follows: “22. I consider (as does the [Polish Commissioner for Human Rights]) that the connecting factors between the action in the main proceedings and the EU law provisions raised in the questions referred relate to the fact that a national judge (M.F.) who may rule on the application or interpretation of EU law is asking that she is afforded, in the context of a disciplinary action levelled against her, the benefit of the effective judicial protection guaranteed by Article 19(1) TEU in the light of Article 47 of the Charter. Such protection implies an obligation for the Member States to ‘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’, (3) which means that M.F. has a right to be judged by an independent and impartial court established by law. That also means that the tribunal called upon to rule on her disciplinary procedure cannot be appointed by a judge whose own appointment breached the very same provision of EU law even though he himself gives rulings relating to the application or interpretation of EU law... 26. Indeed, it follows from the order for reference that there were numerous potentially flagrant breaches of the law applicable to judicial appointments in the appointment procedure in respect of J.M.: (i) the procedure was opened without the ministerial countersignature required under the Constitution, which it is claimed renders the procedure void ab initio; (ii) it involved the new [NCJ] whose members were appointed under a new legislative process, which is unconstitutional and does not guarantee independence; (iii) there were diverse deliberate impediments to the preliminary judicial review of the act of appointment, as: (a) the [NCJ] deliberately failed to forward the action brought against its resolution to the Supreme Administrative Court, at the same time as it sent it to the President of the Republic, before the deadline to do so before that court expired; (b) the President of the Republic appointed the judges proposed in that resolution before the judicial review of that resolution was closed and without waiting for the answer of the Court of Justice to the questions referred to it in case C‑824/18, concerning the conformity of the modalities of that control with EU law. Therefore, the President of the Republic committed a potentially flagrant breach of fundamental norms of national law... 34. Unlike the Commission, I consider that this is an extension of the answer given to the first question and, as follows from my Opinion and from the judgment in A.B. and Others, an executive authority of a Member State is required to refrain from delivering a document of appointment to the position of judge until a national court, taking into account the judgment given by the Court of Justice on the reference for a preliminary ruling, has ruled on the compatibility of national law with EU law with respect to the procedure for appointing members of a new organisational unit in the court of final instance of that Member State. Failure to do so would be an infringement of the principle of effective judicial protection, since at the very least it creates a serious risk that judicial authorities which do not meet EU standards will be established, even if only temporarily. I agree with the [Polish Commissioner for Human Rights] that it would also potentially infringe Articles 4(3) TEU and 267 TFEU, as the President of the Republic would limit the effet utile of the preliminary ruling procedure and would circumvent the binding character of the decisions of the Court. 35. National courts should have a remedy to treat as a qualified breach of the principle of effective judicial protection any actions taken by the authorities of a Member State following a request for a preliminary ruling made by a national court where the purpose or effect of such actions might be to nullify or limit the principle of the retroactive ( ex tunc ) effect of preliminary rulings given by the Court. 36. What is important in the context of the present case, and as was pointed out by the referring court, is that the delivery of the document of appointment to the position of judge in the Disciplinary Chamber may constitute an intentional infringement of the principle of effective judicial protection. Moreover, this was, it seems, accompanied by the conviction, stemming from previous national case-law, that the appointment to the position of judge of the Supreme Court is irreversible. As follows from the answer to the first question, that conviction is wrong. 37. In addition, I agree with the referring court that a person appointed to the position of judge of the Supreme Court in such circumstances may well remain dependent on how the authorities involved in his appointment assess his judicial activity during the period in which he performs his judicial mandate. The referring court states that in its view such dependence exists, especially on the executive, that is, the President of the Republic.... 39. ...The referring court must, in that respect, assess the manifest and deliberate character of that breach as well as the gravity of the breach and must take into account the fact that J.M. was appointed despite a prior appeal to the competent national court against the resolution of the [NCJ], which included a motion for the appointment of that person to the position of judge and which was still pending at the relevant time... 53. ... In view of the fact that the review of the validity of J.M. (the defendant judge’s) appointment cannot be carried out in any other national procedure and that the only possibility to examine that status as judge is in the context of a disciplinary procedure exposing M.F. (the applicant judge) to sanctions which is not compliant with the requirements of the principle of effective judicial protection, the referring court should be able to rule that that appointment did not exist in law even where national law does not authorise it to do so. 54. In that respect, I consider (as does the [Polish Commissioner for Human Rights]) that the national authorities may not take refuge behind arguments based on legal certainty and irremovability of judges. Those arguments are just a smokescreen and do not detract from the intention to disregard or breach the principles of the rule of law. It must be recalled that law does not arise from injustice ( ex iniuria ius non oritur ). If a person was appointed to such an important institution in the legal system of a Member State as is the Supreme Court of that State in a procedure which violated the principle of effective judicial protection, then he or she cannot be protected by the principles of legal certainty and irremovability of judges.” (iii) Case C-487/19 W.Ż. 173. On 26 June 2019 the Civil Chamber of the Supreme Court lodged a request with the CJEU for a preliminary ruling. The case originated in proceedings brought by Judge W.Ż. seeking the withdrawal of judges of the Chamber of Extraordinary Review and Public Affairs of the Supreme Court. On 8 March 2019 the Chamber of Extraordinary Review and Public Affairs, sitting as a single Judge, A.S., dismissed the appeal lodged by W.Ż. against a resolution of the NCJ discontinuing the proceedings concerning his transfer from the second-instance to a first-instance division of a Regional Court. W.Ż. was a member and spokesperson of the former NCJ and has publicly criticised the judicial reforms in Poland carried out by the ruling party. 174. On 15 April 2021 Advocate General Tanchev delivered his opinion, in which he observed as follows: “39. The referring court has already established that in the appointment procedure by which A.S. was appointed as a judge of the Supreme Court there were flagrant and deliberate breaches of Polish laws relating to judicial appointments. ... (1) First limb of the question referred: appointment of judges before the Supreme Administrative Court gave a ruling in the pending action attacking [NCJ] resolution No 331/2018 50. The salient point here is whether the fact that there was an ongoing judicial review of [NCJ] resolutions (adopted in the course of the Supreme Court appointment procedure) has (or should have) suspensory effect... 57. In making its assessment the national court will need to have regard to the guidance provided here and in the judgment A.B. and Others and to any other relevant circumstances of which it may become aware, taking account, where appropriate, of the reasons and specific objectives alleged before it in order to justify the measures concerned. In addition, the court will need to assess whether national provisions, such as those contained in Article 44(1a) to (4) of the [2011 Act on the NCJ as amended by the 2017 Amending Act], are such as to give rise to legitimate doubts, in the minds of subjects of the law, as to the imperviousness of the judges appointed on the basis of the [NCJ] resolutions to external factors and, in particular, to the direct or indirect influence of the Polish legislature and executive, and as to their neutrality with respect to any interests before them and, thus, may lead to those judges not being seen to be independent or impartial with the consequence of prejudicing the trust which justice in a democratic society governed by the rule of law must inspire in subjects of the law. ... 60. As the [Polish Commissioner for Human Rights] rightly submitted, in accordance with the second subparagraph of Article 19(1) TEU and Article 47 of the Charter, the appointment process must not give rise to reasonable doubts, in the minds of the subjects of the law, as to the imperviousness of the judges concerned to external factors, once the interested parties are appointed as judges. Therefore, given the key role played by the [NCJ] in the judicial appointment process and the absence of legal review of the decisions of the President of the Republic appointing a judge, it is necessary that effective legal review exists for the judicial candidates. That is particularly the case where, as in this instance, the State, by way of its conduct, is interfering in the process of appointing judges in a manner which risks compromising the future independence of those judges. The required legal review should: (a) happen before the appointment, as the judge is thus protected a posteriori by the principle of irremovability; (b) cover at least an ultra vires or improper exercise of authority, error of law or manifest error of assessment; and (c) allow clarification of all the aspects of the appointment procedure, including the requirements under EU law, if appropriate, by submitting questions to the Court inter alia concerning the requirements stemming from the principle of effective judicial protection. ... 63. As a consequence, the act of appointment as judge of the Supreme Court adopted by the President of the Republic before the Supreme Administrative Court ruled definitively on the action brought against Resolution No 331/2018 of the [NCJ] constitutes a flagrant breach of national rules governing the procedure for the appointment of judges to the Supreme Court, when those rules are interpreted in conformity with applicable EU law (in particular, the second subparagraph of Article 19(1) TEU). (2) Second limb of the question referred: appointment to the post of judge of the Supreme Court despite the order of the Supreme Administrative Court suspending the execution of the [NCJ] resolution proposing the appointment of candidates 64. It will ultimately be for the referring court to assess this point on the basis of all the relevant elements, but to my mind the irregularity committed during the appointment of the judge of the CECPA ( 22 ) in question (judge A.S.) stems a fortiori from the fact that he was appointed within the Supreme Court and within that chamber despite the decision of the Supreme Administrative Court ordering that the execution of [NCJ] resolution No 331/2018 be stayed.§ 65. Therefore, I agree with the referring court and also W.Ż., the [Polish Commissioner for Human Rights] and the Commission that the deliberate and intentional infringement by the executive branch of a judicial decision, in particular a decision of the Supreme Administrative Court ordering interim measures (that is, the order of 27 September 2018) – manifestly with the aim of ensuring that the government has an influence on judicial appointments – demonstrates a lack of respect for the principle of the rule of law and constitutes per se an infringement by the executive branch of ‘fundamental rules forming an integral part of the establishment and functioning of that judicial system’ within the meaning of paragraph 75 of judgment of 26 March 2020, Review Simpson and HG v Council and Commission (C ‑ 542/18 RX ‑ II and C ‑ 543/18 RX ‑ II, EU:C:2020:232) (‘the judgment in Simpson and HG’). ... 77. In Ástráðsson v. Iceland, the Grand Chamber of the ECtHR – largely upholding the chamber ruling of 12 March 2019 – ruled that, given the potential implications of finding a breach and the important interests at stake, the right to a ‘tribunal established by law’ should not be construed too broadly such that any irregularity in a judicial appointment procedure would risk compromising that right. The ECtHR thus formulated a three-step test to determine whether irregularities in a judicial appointment procedure were of such gravity as to entail a violation of the right to a tribunal established by law: step 1, whether there has been a manifest breach of domestic law (§§ 244 and 245 of that judgment); step 2, whether breaches of domestic law pertained to any fundamental rule of the judicial appointment procedure (§§ 246 and 247); and step 3, whether the alleged violations of the right to a ‘tribunal established by law’ were effectively reviewed and remedied by the domestic courts (§§ 248 to 252). 78. The above principles apply not only in the case of infringements of provisions governing specifically the appointment procedure stricto sensu, but, as the present case shows, they must also apply in the case of disregard of judicial control introduced in relation to previous acts of appointment having a constitutive character vis-à-vis that appointment (such as [NCJ] resolution No 331/2018 here). 79. As the Commission pointed out, in relation to the rules of appointment of judges, it is not surprising that both the ECtHR (in the judgment of 1 December 2020 Ástráðsson v. Iceland, § 247) and the Court (in the judgment in Simpson and HG, paragraph 75) make a direct link between the requirement that a tribunal must be established by law and the principle of judicial independence in the sense that it is necessary to examine whether an irregularity committed during the appointment of judges ‘create[s] a real risk that other branches of the State, in particular the executive, could exercise undue discretion undermining the integrity of the outcome of the appointment process and thus give rise to a reasonable doubt in the minds of individuals as to the independence and the impartiality of the judge or judges concerned’ ( Simpson and HG, paragraph 75). ... 84. As far as the requirement ‘established by law’ is concerned, as pointed out by the [Polish Commissioner for Human Rights], the strict respect of appointment rules is necessary, as it gives the appointed judge the feeling that he or she obtained the position purely on the basis of their qualifications and objective criteria and at the end of a reliable procedure, avoiding the creation of any relation of dependence between the judge and the authorities intervening in that appointment. In the present case, the referring court established, in a convincing manner, on the one hand, that the effective legal review of the judicial appointment process constitutes a requirement flowing from the constitutional principles relating to the independence of the judiciary and to the subjective rights of access to a public function and to a court or tribunal and, on the other hand, that the appointment of the judge concerned arose in breach of that effective legal review and of the judicial decision having suspended the enforceability of [NCJ] resolution No 331/2018. ... 87. The manifest and deliberate character of the violation of the order of the Supreme Administrative Court staying the execution of [NCJ] Resolution No 331/2018, committed by such an important State authority as the President of the Republic, empowered to deliver the act of appointment to the post of judge of the Supreme Court, is indicative of a flagrant breach of the rules of national law governing the appointment procedure for judges. 88. In relation to the criterion of gravity, to my mind, given the general context of the contentious judicial reforms in Poland, the gravity of the breaches in the present case is more serious than the irregularities at issue in Ástráðsson v. Iceland. 89. In any event, the very fact that the President of the Republic paid no heed to the final decision of the Supreme Administrative Court – that is, the administrative court of final instance – ordering interim measures and staying the execution of [NCJ] Resolution No 331/2018 until that court rules on the main action pending before it, indicates the gravity of the breach that was committed. 90. The Court has already made clear that the respect by competent national authorities of a Member State of interim measures ordered by national courts constitutes ‘an essential component of the rule of law, a value enshrined in Article 2 TEU and on which the European Union is founded.’ (c) Effects on the act of appointment of A.S. to the post of judge of the Supreme Court and/or on the order of 8 March 2019 in the light of the principles of legal certainty and of irremovability of judges 91. In order to provide the referring court with an interpretation of EU law which may be useful to it in assessing the effects of one or other of its provisions, it is necessary also to examine the effects of the finding that A.S. sitting in a single-judge formation may not constitute a tribunal established by law. ... 105. In other words, in the present case, a potential infringement in the case in the main proceedings of the requirement for a tribunal to be previously established by law does not imply that the act of appointment of judge A.S. – the judge who gave the order of inadmissibility – is invalid per se. 106. For the reasons set out above, I propose that the Court should answer the question referred for a preliminary ruling by the Sąd Najwyższy (Supreme Court, Poland) as follows: The right to a tribunal established by law, affirmed by the second subparagraph of Article 19(1) TEU, read in the light of Article 47 of the Charter of Fundamental Rights of the European Union, must be interpreted in the sense that a court such as the court composed of a single person of the Chamber of Extraordinary Review and Public Affairs of the Supreme Court (Poland) does not meet the requirements to constitute such a tribunal established by law in a situation where the judge concerned was appointed to that position in flagrant breach of the laws of the Member State applicable to judicial appointments to the Supreme Court, which is a matter for the referring court to establish. The referring court must, in that respect, assess the manifest and deliberate character of that breach as well as the gravity of the breach and must take into account the fact that the above appointment was made: (i) despite a prior appeal to the competent national court against the resolution of the National Council of the Judiciary, which included a motion for the appointment of that person to the position of judge and which was still pending at the relevant time; and/or (ii) despite the fact that the implementation of that resolution had been stayed in accordance with national law and those proceedings before the competent national court had not been concluded before the delivery of the appointment letter.” European Network of Councils for the Judiciary 175. On 16 August 2018 the European Network of Councils for the Judiciary (ENCJ) adopted its “Position Paper of the Board of the ENCJ on the membership of the [NCJ] of Poland” and formulated a proposal to suspend the NCJ’s membership. Accordingly, on 17 September 2018, the Extraordinary General Assembly of the ENCJ decided to suspend the membership of the Polish NCJ (see paragraph 15 above). The relevant parts of the Position Paper read as follows: “The present law concerning the [NCJ] came into effect in January 2018. The essence of the reform is that the judicial members of the [NCJ] are no longer elected by their peers but are instead appointed by Parliament. Judges may be appointed by Parliament if they are supported by 25 judges or a group of 2000 citizens. The Board considers that this is a departure from the ENCJ standard that judges in a council should be elected by their peers. Although, non-compliance with this standard does not automatically imply that a council is not independent from the executive, in the case of the Polish Council the Board finds so many additional circumstances that it has reached the conclusion that the [NCJ] is no longer independent from the executive. These circumstances include the following: - The law on the [NCJ] is part of an overall reform to strengthen the position of the executive, infringing very seriously the independence of the judiciary; - The reasons given for these reforms are not convincing to the Board; - It is not clear to the Board whether, and if so, in what way the reforms should and will contribute to the official goals of the government on the subject of the alleged corruption, inefficiency and communist influence; - The reforms are not the fruit of the required involvement of the judiciary in the formation and implementation of plans for reform; - The term of office of four of the sitting [NCJ]-members has been shortened; - In the selection process of a judicial member of the [NCJ] the lists of supportive judges are not made public, and so it cannot be checked whether the list consists primarily of judges seconded to the Ministry of Justice, or of the same 25 judges for every candidate; The judicial members of the [NCJ] have not published the list of supporting judges themselves, but they have instead provided the ENCJ only with a list showing the number of judges they were supported by; - The associations of judges informed the Board that four of the present judicial members were until shortly before their election as member of the [NCJ] seconded to the Ministry of Justice; They also informed the Board that five of the members of the [NCJ] were appointed president of a court by the Minister of Justice shortly before their election as members of the [NCJ], using a law mentioned in paragraph 4.3; - Thirdly, they informed the Board that a majority of the members of the [NCJ] (14 out of 25) are either a member of the Law and Justice Party, a member of the government or are chosen by Parliament on the recommendation of the Law and Justice Party. The [NCJ] decides by simple majority; - The judicial members of the [NCJ] support all the justice reforms from the government, although they admit that the majority of the judges are of the opinion that the reforms are in violation of the Constitution and are infringing the independence of the judiciary; - Several members of the [NCJ] expressed the opinion that judges who publicly speak out against the reforms and/or speak out in defence of the independence of the judiciary should be disciplined because of unlawful political activity; - The [NCJ] does not speak out on behalf of the judges who defend the independence of the judiciary. For example: the judges in Krakow were publicly called criminals by the Prime Minister of Poland, and the [NCJ] did not object to it. The same goes for the [NCJ]’s attitude concerning the position of the First President of the Supreme Court; - A large portion of the 10,000 Polish judges believe that the [NCJ] is politicised. In short: The Board considers that the [NCJ] is no longer the guardian of the independence of the judiciary in Poland. It seems instead to be an instrument of the executive. 6. Conclusion The Board considers that the [NCJ] does not comply with the statutory rule of the ENCJ that a member should be independent from the executive. The Board believes that the [NCJ] is no longer an institution which is independent of the executive and, accordingly, which guarantees the final responsibility for the support of the judiciary in the independent delivery of justice. Moreover, the Board feels that actions of the [NCJ] or the lack thereof, as set out in paragraph 5, are constituting a breach of the aims and objectives of the network, in particular the aim of improvement of cooperation between and good mutual understanding amongst Councils for the Judiciary of the EU and Candidate Member States in accordance with article 3 of the Statutes. 7. Proposal of the Board In the circumstances, the Board proposes to the General Assembly, convening in Bucharest on the 17th September 2018, that the membership of the [NCJ] be suspended. With this measure, the ENCJ sends a clear message to the Polish government and the Polish judges that the ENCJ considers that the [NCJ] is no longer independent from the executive. By suspension – and not expulsion - the ENCJ also intends to express an open mind for the possibility for improvement on the topic of judicial independence in Poland. In this way it can continue to monitor the situation concerning the Rule of Law in Poland, for instance as to the disciplinary actions against judges who oppose the reforms. The Board sincerely hopes that the time will come when the suspension can be lifted, but that will only be when the principle of judicial independence is properly respected in Poland.” 176. On 27 May 2020 the Executive Board of the ENCJ adopted a “Position Paper of the board of the ENCJ on the membership of the [NCJ] (expulsion)”. In that paper the Board set out the reasons for its proposal to the General Assembly to expel the NCJ from the network. No decision has yet been taken on that proposal. The relevant parts of the paper read as follows: “... the Executive Board is of the opinion that the situation has not improved from 17 September 2018 until now, but has deteriorated on several issues. First. The relations between the [NCJ] and the Minister of Justice are even closer than suspected in the position paper of 16 August 2018. At the meeting of November 2019 the [NCJ] did not criticize the government at all. After enormous pressure, the lists of judges who supported the present members of the [NCJ] as candidates (a minimum of 25 supporting judges was required to be appointed), show support by a narrow group of judges associated with the Minister of Justice, including 50 judges seconded to the ministry. One candidate was appointed without the required minimum of 25 signatures from judges. Secondly. The [NCJ] openly supports the Executive and Legislature in its attacks on the independence of the Judiciary, especially by means of disciplinary actions. The answers of the [NCJ] in the letter of 13 March 2020 on these points strengthen the Executive Board in its opinion. In the answer to question 1, the [NCJ] acknowledges that 49 judges supporting the appointment of members of the [NCJ] were seconded to the Ministry of Justice, and thus cannot be viewed as independent from the ministry for the purposes of the ENCJ. In the answer to question 2, the [NCJ] acknowledges that many signatures of judges supporting the candidacy of member N. had been withdrawn before the election, thus casting doubt on the validity of his election, yet he continues to fulfil the role of a validly elected member of the council. In the answer to question 3, the [NCJ] only reiterates that it is not its task to monitor the declarations of the Minister of Justice and does not deny that the Minister of Justice has said in the Senate that he proposed judges to be appointed in the [NCJ] who, in his opinion, were ready to cooperate in the reform of the Judiciary. This amounts to a failure to promote the independence of the council and its members from the executive. In the answer to question 4, the [NCJ] argues that the members of the [NCJ] are not the representatives of judges, which is incompatible with the ENCJ Budapest Declaration 2008 that judicial members of a council must act as the representatives of the entire judiciary. The letter of 20 May 2020 makes no convincing argument against the conclusion that the [NCJ] does not fulfil the requirement of being independent of the executive. On the basis of both its actions and its responses the Executive Board concludes that the [NCJ] is still not independent of the Executive and the Legislature. ... 10. Conclusion of the Executive Board First. The Board considers that the [NCJ] does not comply with the statutory rule of the ENCJ that a member should be independent from the executive. Second. The Board considers that the [NCJ] is in blatant violation of the ENCJ rule to safeguard the independence of the Judiciary, to defend the Judiciary, as well as individual judges, in a manner consistent with its role as guarantor, in the face of any measures which threaten to compromise the core values of independence and autonomy. Third. The Board considers that the [NCJ] undermines the application of EU Law as to the independence of judges and tribunals, and thus its effectiveness. In doing so, it acts against the interests of the European Area of freedom, security and justice, and the values it stands for.... “11. Proposal of the Executive Board In the circumstances, the Board proposes to the General Assembly, convening as soon as possible as the Covid-19 pandemic allows it, that the [NCJ] be expelled as a member of the network. With this measure, the ENCJ sends a clear message to the Polish government and the Polish judges that the ENCJ considers that the [NCJ] is no longer a member of the European family of Members and Observers who believe in, and support the European Area of freedom, security and justice, and the values it stands for. The ENCJ wants to make absolutely clear that it remains very much committed to the independence of the Polish Judiciary, our Colleague European Union Judges, and that it will continue to cooperate with all the judicial associations in order to defend and restore the independence of the Polish judiciary as soon as possible. Once a Council of the Judiciary in Poland again believes in and acts in support of the values of the ENCJ, the ENCJ will be happy to welcome any such Council back as a member.” THE LAW PRELIMINARY REMARKS 177. The present case belongs to a group of thirty-eight applications against Poland, lodged in 2018-2021, concerning various aspects of the reorganisation of the Polish judicial system initiated in 2017 (see also paragraphs 1-125 above). As of the date of adoption of the present judgment the Court has given notice of twenty-two applications to the Polish Government, in accordance with Rule 54 § 2 (b). The Chamber of the First Section of the Court has also decided that all the current and future applications belonging to that group be given priority, pursuant to Rule 41. In most cases (twenty apart from the present one), the applicants’ complaints either relate to the issue of whether the newly established chambers of the Supreme Court, in particular the Disciplinary Chamber, have attributes required of a “tribunal established by law” within the meaning of Article 6 § 1 of the Convention or to the questions linked with the jurisdiction of the Disciplinary Chamber in disciplinary proceedings concerning judges, prosecutors and members of the legal profession. Some cases also concern allegations that judicial formations including judges of the ordinary courts appointed by the President of Poland following a recommendation from the “new” NCJ, as composed by virtue of the 2017 Amending Act, fail to meet the requirements of a “tribunal established by law. There are also two cases concerning a premature termination of the term of office of judicial members of the “old” NCJ under the 2017 Amending Act and allegations of a breach of Article 6 § 1 of the Convention on account of the lack of access to a court to contest their dismissal from the “old” NCJ, in breach of Article 6 of the Convention. One of those cases – Grzęda v. Poland (no. 43572/18) – is currently pending before the Grand Chamber of the Court. Having regard to the variety of legal and factual issues arising in the above group of cases, the Court would emphasise at the outset that its task in the present case is not to consider the legitimacy of the reorganisation of the Polish judiciary as a whole but to assess the circumstances relevant for the process of appointment of judges to the Disciplinary Chamber of the Supreme Court following the entry into force of the 2017 Act on the Supreme Court establishing that Chamber (see paragraphs 66 ‑ 69 above and paragraph 178 below). MATERIAL BEFORE THE COURT 178. The Court further notes that it is a matter of common knowledge that the reorganisation of the judiciary in Poland initiated by the Government in 2017 and implemented by the successive amending laws (see paragraphs 8-25 above) has, since then, been the subject not only of intense public debate in Poland and at European level but also of numerous proceedings before the Polish courts and the CJEU, of other actions before the European Union’s institutions, including the procedure under Article 7(1) TEU before the European Commission, of European Parliament resolutions, of the PACE monitoring procedure and its resolutions, and of various reports of the Council of Europe’s bodies, the UN, the OSCE/ODIHR and the ENCJ (see paragraphs 126-176 above). In view of the foregoing, the Court in its examination of the case will take into account the submissions of the parties and the third-party interveners and evidence produced by them in support of their arguments, and will also take judicial notice of the material available in the public domain, as summarised above and in so far as relevant for the determination of the applicant’s complaints alleging a breach of Article 6 § 1 of the Convention in that she did not have her case heard by an impartial and independent tribunal established by law. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AS REGARDS THE RIGHT TO A TRIBUNAL ESTABLISHED BY LAW 179. The applicant complained under Article 6 § 1 of the Convention that the Disciplinary Chamber of the Supreme Court, which had dealt with her case, had not been a “tribunal established by law” within the meaning of that provision. The applicant relied on Article 6 § 1 of the Convention, which, in its relevant part, reads as follows: “In the determination of his civil rights and obligations 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...” AdmissibilityApplicability of Article 6 § 1 Applicability of Article 6 § 1 Applicability of Article 6 § 1 (a) The parties’ submissions 180. The Government did not dispute the applicability of Article 6 § 1 of the Convention under its civil head to the disciplinary proceedings in the applicant’s case. 181. The applicant submitted that Article 6 § 1 of the Convention applied to her case under its criminal head. She noted that the disciplinary proceedings had first been conducted by the disciplinary bodies of the Bar Association. The penalty imposed by them had been of a punitive character and consisted of the suspension of her right to practise as a barrister for a period of three years. The severity of the sanction by itself had brought the offence into the criminal sphere. Moreover, the Polish Code of Criminal Procedure had been applicable to those proceedings as they concerned a violation of the Code of Ethics of Barristers. (b) The Court’s assessment 182. The Court notes that the Government have not raised an objection of incompatibility ratione materiae with the provisions of Article 6 § 1 of the Convention. However, the parties disagreed as to whether this Article applied to the case under its civil or criminal head. 183. It is the Court’s well-established case-law that disciplinary proceedings in which the right to continue to exercise a profession is at stake give rise to “ contestations ” (disputes) over civil rights within the meaning of Article 6 § 1 (see for instance, Philis v. Greece (no. 2), 27 June 1997, § 45, Reports of Judgments and Decisions 1997 ‑ IV, and Vilho Eskelinen and Others v. Finland [GC], no. 63235/00, § 62, ECHR 2007-II). This principle has been applied with regard to proceedings conducted before various professional disciplinary bodies and in particular as regards judges in Baka v. Hungary [GC], no. 20261/12, §§ 104-105, 23 June 2016, prosecutors in Polyakh and Others v. Ukraine, nos. 58812/15 and 4 others, § 160, 17 October 2019, and practising lawyers in Malek v. Austria, no. 60553/00, § 39, 12 June 2003, and Helmut Blum v. Austria, no. 33060/10, § 60, 5 April 2016. 184. The applicant in the present case is a practising lawyer, a barrister, who was temporarily suspended from her duties as a consequence of the disciplinary proceedings. The Court sees no reason to depart from its case-law cited above. It considers that there is no basis for finding that the disciplinary proceedings against the applicant concerned the determination of a criminal charge against her within the meaning of Article 6 of the Convention as submitted by the applicant (see Ramos Nunes de Carvalho e Sá v. Portugal [GC], nos. 55391/13 and 2 others, § 127, 6 November 2018, and Müller-Hartburg v. Austria, no. 47195/06, § 49, 19 February 2013). 185. Accordingly, Article 6 § 1 of the Convention under its civil head applies to the impugned proceedings before the Disciplinary Chamber of the Supreme Court. Conclusion as to admissibility 186. The Court notes that the application is neither manifestly ill ‑ founded nor inadmissible on any other of the grounds listed in Article 35 of the Convention. It must therefore be declared admissible. MeritsSubmissions before the Court Submissions before the Court Submissions before the Court (a) The parties (i) The applicant 187. The applicant submitted that her case had not been heard by an impartial and independent “tribunal established by law” and that this constituted a breach of Article 6 § 1 of the Convention. Firstly, the judges who had dealt with her case had been selected on a political basis and had not been independent or impartial. Secondly, the entire Disciplinary Chamber of the Supreme Court was of a political character, as shown by its activity against the judges who had opposed the reforms of the judicial system. 188. The applicant stated that, in accordance with the Court’s case-law, in particular the judgment in Guðmundur Andri Ástráðsson ([GC], no. 26374/18, 1 December 2020), a court must always be “established by law”. In the light of this requirement the Court was called upon to examine whether the domestic law had been complied with. In the present case the long series of irregularities which had resulted in the conclusion that the panel of judges of the Disciplinary Chamber which examined her case had not been a “tribunal established by law” had started with the structural changes to the NCJ. Contrary to the Constitution, which held that Sejm should only select four members of the NCJ, the 2017 Amending Act entrusted Sejm with the election of fifteen additional members, from among judges, who had so far been elected by their peers. As a result, the legislative and executive branches of power had granted themselves a quasi-monopoly to appoint the members of the NCJ in that they were to appoint twenty-three out of twenty-five members. This amounted to a breach of the Constitutional principle of separation of powers and ran counter to the previous case-law of the Constitutional Court from 2007. As a result, the NCJ had lost the ability to contribute to making the judicial appointment process objective. The applicant drew the Court’s attention to other cases pending before the Court concerning the termination of the terms of office of previous members of the NCJ ( Grzęda v. Poland, no. 43572/18) and the Disciplinary Chamber’s rulings against judges who had criticised the “reforms of the judiciary” ( Tuleya v. Poland, no. 21181/19). These cases showed that the activity of the Disciplinary Chamber was strongly politicised. 189. The process of appointment of Supreme Court judges had not been transparent or independent, and was in breach of domestic law, including the Constitution, in that the President had announced vacancies at the Supreme Court without the countersignature of the Prime Minister contrary to Article 144 § 2 of the Constitution. The selection process carried out by the NCJ had been superficial and did not offer guarantees of the independence or impartiality of the candidates selected. For instance, only 216 candidates had applied for forty-four announced positions. The NCJ had carried out a short, chaotic, and superficial examination of applications and individual interviews had taken a dozen minutes per candidate. As a result, only those candidates who had been supported by the authorities, and connected to them, had been selected. 190. The applicant pointed to the particular status of the Disciplinary Chamber as a newly established chamber of the Supreme Court. The real objective behind its creation had been to increase the total number of judges sitting in the Supreme Court from 83 to 120 and to suppress any judicial opposition to radical and far-reaching changes in the Polish legal system implemented by the current government. The Disciplinary Chamber had been granted a budget which was separate from that of the other chambers and had an independent Statute. The applicant further stated that the CJEU had given several judgments and, in particular, an interim ruling of 8 April 2020 ordering the suspension of relevant provisions governing the activity of the Disciplinary Chamber in the disciplinary proceedings concerning judges. Pursuant to the CJEU judgment of 19 November 2019, the Polish Supreme Court had delivered the judgment of 5 December 2019 and the resolution of the joined Chambers of 23 January 2020. The conclusions of both rulings of the Supreme Court were of great relevance to the case at hand. 191. Lastly, the applicant argued that comparisons between single elements of constitutional and legal systems in Europe, as relied on by the Government to justify the choices of the Polish legislator, might be misleading. While every member State could apply different procedures, a broader context should nevertheless be taken into consideration to assess the fulfilment of the requirement of independence and impartiality of a court, established by law, as guaranteed by the Convention. Notwithstanding the margin of appreciation afforded to the States in applying and implementing the Convention, no State should have a right to violate its Constitution for political benefit. The applicant concluded that the domestic law had been breached in the instant case and stressed the importance to the present case of the Court’s case-law on the principles of the rule of law and the separation of powers. (ii) The Government 192. The Government submitted that the court which dealt with the applicant’s case had been a “tribunal established by law” as required by Article 6 § 1 of the Convention. In particular, there had been no manifest breach of domestic law in the process of appointment of judges to the Supreme Court. The Government considered that in the light of the Grand Chamber judgment in Guðmundur Andri Ástráðsson (cited above, §§ 216 and 247) the impugned violations of the domestic law must be manifest”, i.e., must be of a fundamental nature and must form an integral part of the judges’ appointment process. 193. Under the second element of the test developed in the Guðmundur Andri Ástráðsson judgment, the key question was whether there was a real risk that the other organs of government, in particular the executive, had exercised undue discretion undermining the integrity of the appointment process to an extent not envisaged by the domestic rules in force at the material time. However, in the present case, there had been no violation of the ability of the judiciary to perform their duties free of undue interference and thereby to preserve the rule of law and the separation of powers. According to the Government, it was thus unnecessary to carry out the third step of the test as set out in the Guðmundur Andri Ástráðsson judgment (cited above) related to the examination of whether the violations had effectively been reviewed. 194. They stressed that all judges in Poland, including those sitting in the Disciplinary Chamber of the Supreme Court, were appointed by the President, upon a proposal of the NCJ, for an indefinite period of time. The President was not bound by the recommendation of the NCJ in that he could decide not to appoint a person indicated by it. However, the President could not appoint a person who was not recommended by the NCJ. The mere fact that the judges were appointed by an executive body, the President, did not give rise to a relationship of subordination of the former to the latter or to doubts as to the former’s impartiality if once appointed they were free from influence or pressure when carrying out their role. In that respect the Government pointed to the judgment of the CJEU of 19 November 2019, which had confirmed this principle. 195. The Government referred to systems of judicial appointments in Europe and concluded that the Polish approach did not differ from other countries. The fact that the judges were appointed by the executive seemed to be a rule in European States. They considered that in Europe the participation of representatives of judicial authorities in the procedure for appointment of judges, particularly those of the Supreme Court, was limited or not foreseen at all. In Poland, however, the judiciary participated in the procedure to a rather broad extent. The risk of excessive influence of the executive on the process of appointment of judges had thus been reduced. 196. Furthermore, the Convention did not imply an obligation to apply a specific mode of appointment of judges to the highest courts of the Contracting States. The Convention did not require the appointment of judicial councils or their participation in the procedure for appointment of judges. Moreover, the Convention did not require the States to comply with any theoretical constitutional concepts regarding the permissible limits of the powers’ interactions. A certain interaction between the three branches of government was not only inevitable but also necessary to the extent that the respective powers did not unduly encroach upon one another’s functions and competencies. The Contracting States should thus be “afforded a certain margin of appreciation in connection [with] these issues since the domestic authorities [were] in principle better placed [than] the Court to assess how the interests of justice and the rule of law – with all its conflicting components – would be best served”. 197. The Government emphasised that amendments made to the method of electing members of the NCJ and terminations of service established prior to this amendment had been proportionate, since they were aimed at adjusting the election to the relevant provisions of the Constitution, as interpreted by the Constitutional Court in judgment no. K 5/17. The amendments had fallen within the ambit of the legislator’s margin of appreciation, limited only by the constitutional provisions pertaining to the NCJ. As a matter of fact, Article 187 § 1 (2) of the Constitution provided for an election of the judicial members of the NCJ from among judges. The Constitution did not determine, however, who would elect these judges or how they would be elected. Consequently, it could be seen from the relevant provisions of the Constitution who could be elected as a judicial NCJ member, yet there was no mention of any modalities of the election of judges to the NCJ. In accordance with Article 187 § 4 of the Constitution these modalities were to be regulated by statute. Elections by representatives of the judiciary had not been annulled, yet the position that assemblies of judges were the only competent electoral bodies was unsubstantiated on the ground of the Constitution. Whereas Article 187 § 1 (3) of the Constitution clearly stipulated that the MPs sitting on the NCJ be elected by Sejm and that senators sitting on it be elected by the Senate, the Constitution did not contain any precise provision with reference to the judicial members of the NCJ. 198. According to the Government, this meant that the Constitution did not provide for any particular way of electing judges to the NCJ. Such a manner of regulation of this matter had been chosen by the constitutional lawmaker consciously, with a view to setting it out at the level of a statute. It was therefore legitimate that this question should be regulated within the limits of the legislator’s margin of appreciation. In this respect, the Constitution laid down a certain minimum number of fundamental safeguards. They also noted that after the amendments had entered into force, the NCJ would be elected by Sejm by a qualified majority of three-fifths of the votes, in the presence of at least half of those entitled to vote, which made this election the result of a cross-party agreement between various groups represented in Sejm and thus ensured high democratic legitimacy for the members of that body. The high qualified majority required for the election of the members of the NCJ who were judges distinguished the way in which they were elected from members who were MPs. In the latter case, the election was by a simple majority. 199. The Government stressed that although the Court could examine both the formal aspect of the existence of law and the issues related to the process of appointment of judges within the domestic legal system, it had limited power to interpret domestic law. Moreover, the Court was limited by the principle of subsidiarity, which allowed the High Contracting States to decide which measures to take to ensure the rights and freedoms of individuals and to implement the Convention guarantees. 200. According to the Government, the reform of the NCJ and Supreme Court had been carried out in accordance with the Constitution and national legislation. In particular, the changes to the method of electing the judicial members of the NCJ sought to implement the Constitutional Court’s judgment of 20 June 2017 (K 5/17); see paragraph 109 above), which had held that both the individual nature of the term of office of the NCJ’s judicial members and the manner of their appointment were unconstitutional. The Constitutional Court also found that the previous system had led to a differentiation in the voting power between judges of different levels of jurisdiction, which had meant that the votes cast had not been equal but had carried different weight depending on the court’s level. The Government disagreed with the applicant’s allegation that the new members of the NCJ had been associated with the authorities and maintained that the new system had strengthened the transparency of the election of the members of the NCJ and had enabled a public debate on the nominated candidates. The new system allowing the candidates to be presented by a group of citizens or other judges ensured greater representativeness of the NCJ and better reflected the structure of the Polish judiciary. 201. The Government reiterated that even in its judgment of 19 November 2019 (nos. C-585/18, C-624/18, C-625/18) the CJEU had not challenged the legitimacy of the NCJ or the Disciplinary Chamber of the Supreme Court. It had merely pointed out that the national court could assess, in an individual case, whether the national authority – competent under national law – was an independent and impartial tribunal within the meaning of Article 47 of the Charter of Fundamental Rights. Thereby, the CJEU had confirmed that it respected the areas reserved for the member States. Although it observed in its ruling that any political factor involved in the appointment of judges might give rise to doubts and trigger an assessment of whether the court was an independent court, it also pointed out that it was only a set of factors that could lead to a final conclusion ruling out the existence of the attributes of independence and impartiality. In this context, it was also worth mentioning the CJEU judgment of 24 June 2019 (no. C-619/18), concerning the independence of the Supreme Court, in which the CJEU had emphasised the principle of the irremovability of judges. Therefore, the interpretation of the judgment of 19 November 2019, leading to the conclusion that it was permissible to deprive judges and the competent court of their right to adjudicate, was unacceptable. Such an interpretation would be contrary to the fundamental principle of the European Union – the principle of the irremovability of judges. 202. The Government stressed that there had been no manifest violation of domestic law in the process of the appointment of judges to the Supreme Court. Any doubts regarding the Disciplinary Chamber of the Supreme Court arising in view of the Supreme Court’s resolution of 23 January 2020 had been removed by the judgment of the Constitutional Court of 20 April 2020 (U 2/20; see paragraphs 115-117 above). 203. Finally, according to the Government, the President had not breached the Constitution when announcing vacancies at the Supreme Court as such decision was one of his constitutional prerogatives and had not necessitated the countersignature of the Prime Minister. (b) The third-party interveners (i) The Commissioner for Human Rights of the Republic of Poland 204. The Commissioner for Human Rights of the Republic of Poland (“the Commissioner”), stressed that the case disclosed systemic and intentional irregularities. It was of paramount importance to the domestic judicial system since it concerned doubts relating to the composition of the top judicial body, which exercised a supervisory function over all ordinary courts in Poland. The rulings of the Supreme Court were not subject to review by another judicial body which, subject to meeting Convention standards, could resolve doubts and remedy deficiencies. 205. The Commissioner submitted that persons appointed to the Supreme Court since 2018 had been appointed in flagrant violation of domestic law. The deficiencies in the appointment of the Supreme Court judges since 2018 were due in particular to the participation of the NCJ – a body created and appointed in a manner manifestly incompatible with the national law. In order to assess whether the NCJ met the necessary requirements, the Commissioner looked at the following elements: (a) the legislative procedure and nature of changes introduced by the 2017 Amending Act; (b) the election process of the members of the NCJ; (c) activities of the new NCJ after its creation. 206. With respect to point (a) above, the Commissioner stressed that the election of fifteen judges, previously elected by other judges, had been entrusted to Sejm contrary to their constitutional role and the previous case-law of the Constitutional Court (judgment of 18 July 2007, K 25/07, see paragraph 107 above). In consequence, the legislative and executive branches now elected twenty-three out of twenty-five members of the NCJ, which granted them excessive influence over the process of appointments to the Supreme Court. At the same time the constitutionally protected four-year term of office of members of the NCJ had been prematurely terminated. The Commissioner also pointed to a general boycott of the elections to the new NCJ by the judges as a result of which out of a total of 10,000 Polish judges eligible, only eighteen candidates had applied for fifteen positions. Moreover, the transparency of the process had been heavily compromised by the authorities as they had refused to disclose the lists of support for the candidates in spite of the binding ruling of the Supreme Administrative Court ordering their disclosure (judgment of 28/06/2019, I OSK 4282/18). 207. The Commissioner further submitted that the members of the NCJ included persons with strong links to the executive: judges seconded to the Ministry of Justice and those recently appointed by the Minister of Justice to the posts of president and vice-president of the courts. The Supreme Court in its resolution of 23 January 2020 had established that Judge M.N. had been elected to the NCJ in breach of the 2017 Amending Act as he had not obtained the required number of signatures to support his candidature. The NCJ had not intervened in cases of judges prosecuted in politically motivated disciplinary or criminal proceedings. The NCJ had taken actions aimed at legitimising its own status by applying to the Constitutional Court to confirm the constitutionality of the 2017 Amending Act. As a result, the Commissioner concluded that the NCJ no longer fulfilled its constitutional role as guardian of judicial independence. 208. The process of appointment of judges to the Supreme Court was also flawed and amounted to a flagrant breach of the regulations and principles of domestic law and European standards. The Commissioner took the view that the act announcing the vacancies at the Supreme Court issued by the President had not been valid as it had not been countersigned by the Prime Minister, as required by the Constitution. The competition for posts of judge had been boycotted by the whole legal profession in Poland as only 216 candidates had applied for forty-four positions. The NCJ had carried out a rudimentary selection process based mostly on the material presented by the candidates themselves and spending a dozen minutes per interviewed candidate. As a result, the NCJ had recommended only those candidates who were associated with the authorities and had their support. Moreover, the resolutions of the NCJ recommending some candidates for posts at the Supreme Court had been appealed against by rejected candidates. Although the Supreme Administrative Court had suspended the execution of a number of such resolutions, the President had gone ahead and had given letters of appointment to the candidates recommended by the NCJ and they had accepted them. The right to appeal against the NCJ resolutions, allowed at the beginning of the competition, had been entirely excluded by an amendment that had entered into force during the process of selection of the Supreme Court judges. 209. The Commissioner concluded that the irregularities disclosed above should be assessed in the light of a cumulative formula and should lead to a conclusion that the Supreme Court had not been properly established. The challenges against the new members of the NCJ and newly appointed judges of the Supreme Court showed that the infringements had been committed intentionally in order to ensure that the political authorities had a dominant influence on the appointments of judges. 210. Lastly, the Commissioner submitted that the principle of legal certainty and the guarantee of irremovability of judges could not reward the intentional and systemic violation of the law by national authorities. The systemic dimension of the changes introduced in Polish law encompassed the entire justice system; for instance the Constitutional Court no longer fulfilled its role and was used to legitimise actions that were incompatible with the Constitution. The Commissioner proposed to differentiate the consequences of the refusal to recognise the status of unlawfully appointed Supreme Court judges in order to protect the legal security of private parties to the relevant proceedings. At the same time the Commissioner considered that no protection should be afforded to the bodies unlawfully established or to persons lacking the attributes of a judge. (ii) International Commission of Jurists 211. The International Commission of Jurists (“the ICJ”) stressed that judicial councils played an important role in the self-governance, independence, and impartiality of the judiciary in many European countries. An independent judiciary, operating within the system that respected the separation of powers was an essential element of the rule of law and a necessary condition for effective protection of human rights. The ICJ referred to the Magna Carta of Judges which clearly stated that councils for the judiciary had to be independent of legislative and executive bodies and composed in a substantial majority of judges elected by their peers. Those principles had been reiterated by other international authorities, for instance in the Universal Charter of the Judge and by the UN Special Rapporteur on the Independence of judges and lawyers, in his annual report of 2 May 2018. The international standards on the independence of the judiciary enshrined the principle that the political powers – legislative and executive – should not be responsible for, or otherwise interfere with, the appointment, functioning, or removal of members of judicial councils. Moreover, the substantive conditions and detailed procedural rules governing the appointment decisions should not give rise to doubts as to the imperviousness of the judges concerned and their neutrality, as reiterated by the CJEU in the judgment of 19 November 2019 (see paragraph 164 above). 212. The intervener submitted that since 2015 the Government of Poland had adopted and implemented a series of legislative and policy measures that had severely undermined the independence of the judiciary. The authorities had politicised the process of appointments to the NCJ following the 2017 Amending Act, which had given Parliament the power to appoint fifteen judicial members although the Constitution expressly gave Parliament the power to appoint only six lay members. Six judges out of fifteen appointed to the NCJ by Parliament on 5 March 2018 had been in the past six months appointed as president or vice-president of a court by the Minister of Justice. Moreover, the terms of office of all former members of the NCJ had been terminated, and this had raised concerns about compliance with the Constitution and had further impaired the NCJ’s independence from legislative and executive authorities. 213. The ICJ drew the Court’s attention to an amendment to the Act on Organisation of Ordinary Courts, which had also entered into force in August 2017. It had allowed the Minister of Justice to dismiss and appoint the presidents and vice presidents of ordinary courts. Within the first six months of its application the Minister of Justice had dismissed and re-appointed over 130 presidents or vice-presidents of courts in Poland, which amounted to replacing 18% of posts of this type in the entire country. 214. In respect of the Disciplinary Chamber of the Supreme Court, the intervener submitted that it was composed exclusively of judges elected upon the recommendation of the new NCJ. The President of the Disciplinary Chamber had been appointed by the President of Poland in February 2019. The new Chamber was empowered to adjudicate in disciplinary proceedings against judges, including the power to reopen any closed disciplinary proceedings. These proceedings had to be initiated by the NCJ and could result in removal from the office of judge. 215. The intervener concluded that a court might not be considered independent if “the body that had appointed its members lacked guarantees of independence from the executive and legislative powers”. It followed that a “court composed by judges appointed by a non-independent body or in [a] non-independent procedure [would] not be capable of constituting an independent and impartial tribunal” as required by the Convention. The Court’s assessment (a) General principles 216. In its recent judgment in Guðmundur Andri Ástráðsson (cited above, § 218 ) the Grand Chamber of the Court clarified the scope of, and meaning to be given to, the concept of a “tribunal established by law”. The Court reiterated that the purpose of the requirement that the “tribunal” be “established by law” was to ensure “that the judicial organisation in a democratic society [did] not depend on the discretion of the executive, but that it [was] regulated by law emanating from Parliament” (ibid., § 214 with further references). The Court analysed the individual components of that concept and considered how they should be interpreted so as to best reflect its purpose and, ultimately, ensure that the protection it offered was truly effective. 217. As regards the notion of a “tribunal”, in addition to the requirements stemming from the Court’s settled case-law, it was also inherent in its very notion that a “tribunal” be composed of judges selected on the basis of merit – that is, judges who fulfilled the requirements of technical competence and moral integrity. The Court noted that the higher a tribunal was placed in the judicial hierarchy, the more demanding the applicable selection criteria should be (ibid., §§ 220 ‑ 222). 218. As regards the term “established”, the Court referred to the purpose of that requirement, which was to protect the judiciary against unlawful external influence, in particular from the executive, but also from the legislature or from within the judiciary itself. In this connection, it found that the process of appointing judges necessarily constituted an inherent element of the concept “established by law” and that it called for strict scrutiny. Breaches of the law regulating the judicial appointment process might render the participation of the relevant judge in the examination of a case “irregular” (ibid., §§ 226 ‑ 227). 219. As regards the phrase “by law”, the Court clarified that the third component also meant a “tribunal established in accordance with the law”. It observed that the relevant domestic law on judicial appointments should be couched in unequivocal terms, to the extent possible, so as not to allow arbitrary interferences in the appointment process (ibid., §§ 229-230). 220. Subsequently, the Court examined the interaction between the requirement that there be a “tribunal established by law” and the conditions of independence and impartiality. It noted that although the right to a “tribunal established by law” was a stand ‑ alone right under Article 6 § 1 of the Convention, a very close interrelationship had been formulated in the Court’s case-law between that specific right and the guarantees of “independence” and “impartiality”. The institutional requirements of Article 6 § 1 shared the ordinary purpose of upholding the fundamental principles of the rule of law and the separation of powers. The Court found that the examination under the “tribunal established by law” requirement had to systematically enquire whether the alleged irregularity in a given case was of such gravity as to undermine the aforementioned fundamental principles and to compromise the independence of the court in question (ibid., §§ 231 ‑ 234). 221. In order to assess whether the irregularities in a given judicial appointment procedure were of such gravity as to entail a violation of the right to a tribunal established by law, and whether the balance between the competing principles had been struck by State authorities, the Court developed a threshold test made up of three criteria, taken cumulatively (ibid., § 243). 222. In the first place, there must, in principle, be a manifest breach of the domestic law, in the sense that the breach must be objectively and genuinely identifiable. However, the absence of such a breach does not rule out the possibility of a violation of the right to a tribunal established by law, since a procedure that is seemingly in compliance with the domestic rules may nevertheless produce results that are incompatible with the object and purpose of that right. If this is the case, the Court must pursue its examination under the second and third limbs of the test set out below, as applicable, in order to determine whether the results of the application of the relevant domestic rules were compatible with the specific requirements of the right to a “tribunal established by law” within the meaning of the Convention (ibid., §§ 244 ‑ 245). 223. Secondly, the breach in question must be assessed in the light of the object and purpose of the requirement of a “tribunal established by law”, namely to ensure the ability of the judiciary to perform its duties free of undue interference and thereby to preserve the rule of law and the separation of powers. Accordingly, breaches of a purely technical nature that have no bearing on the legitimacy of the appointment process must be considered to fall below the relevant threshold. To the contrary, breaches that wholly disregard the most fundamental rules in the appointment or breaches that may otherwise undermine the purpose and effect of the “established by law” requirement must be considered to be in violation of that requirement (ibid., § 246). 224. Thirdly, the review conducted by national courts, if any, as to the legal consequences – in terms of an individual’s Convention rights – of a breach of a domestic rule on judicial appointments plays a significant role in determining whether such a breach amounted to a violation of the right to a “tribunal established by law”, and thus forms part of the test itself. The assessment by the national courts of the legal effects of such a breach must be carried out on the basis of the relevant Convention case-law and the principles derived therefrom (ibid., §§ 248 and 250). (b) Application of the principles to the present case (i) Preliminary remarks 225. In the present case the alleged violation of the right to a “tribunal established by law” concerns the Disciplinary Chamber of the Supreme Court, constituted following the recent reorganisation of the Polish judicial system. In particular, the applicant alleged that the judges of that Chamber were appointed by the President of Poland upon the NCJ’s recommendation in manifest breach of the domestic law and the principles of the rule of law, separation of powers and independence of the judiciary. 226. Accordingly, the Court will examine whether the fact that the applicant’s case was heard by the Disciplinary Chamber of the Supreme Court – a court to which all the sitting judges were appointed in the impugned procedure – gave rise to a violation of the applicant’s right to a “tribunal established by law”. It will do so in the light of the three-step test formulated by the Court in the case of Guðmundur Andri Ástráðsson (ibid., § 243). (ii) Whether there was a manifest breach of the domestic law 227. Under the first element of the test the Court has to determine whether the relevant domestic law was contravened in the procedure for the appointment of judges to the Disciplinary Chamber of the Supreme Court. The parties disagreed on that issue. In support of their arguments they relied on contradictory views expressed, on the one hand, by the Supreme Court and, on the other, by the Constitutional Court in their respective rulings given in 2017-2020. 228. The applicant heavily relied on the Supreme Court’s conclusions in the judgment of 5 December 2019 and its interpretative resolution of 23 January 2020, stressing that that court had clearly established a fundamental breach of domestic and international law and the principles of the rule of law, separation of powers and independence of the judiciary in the process of appointment of judges to the Disciplinary Chamber. In particular, the applicant maintained that the domestic law had been breached, first, as a result of the change in the manner of electing judicial members of the NCJ under the 2017 Amending Act, which had stripped this body of independence from the legislative and executive powers. As a result, the NCJ’s involvement in the selection of candidates to sit as judges of the Supreme Court and its recommendations of selected persons presented to the President had compromised the procedure for judicial appointments. She also asserted that, as the Supreme Court had held, the domestic law had been breached for a second time by the President of Poland on account of his announcement of vacant positions in the Supreme Court without the Prime Minister’s countersignature, thus rendering invalid ab initio his appointment of the candidates previously presented by the NCJ (see paragraphs 188-189 above). 229. The Government, for their part, asserted that the reform of the NCJ and the Supreme Court had been carried out in accordance with the Constitution and national legislation. They stressed that the modification of the legal provisions governing the organisation of the NCJ, granting Sejm the power to elect the NCJ’s judicial members, had been introduced by the 2017 Amending Act in order to implement the Constitutional Court’s judgment of 20 June 2017 (K 5/17; see paragraphs 108-111 above), holding that both the individual character of the term of office of the NCJ’s judicial members and the manner of their election under the 2011 Act on the NCJ were unconstitutional. Furthermore, in their view, the President’s announcement of the vacant positions at the Supreme Court was not of such a nature as to require a countersignature by the Prime Minister for it to be valid (see paragraph 203 above). As regards the Supreme Court’s resolution of 23 January 2020, the Government took the view that its findings and conclusions could not be taken into account in the Court’s assessment because, in their words, it had been “removed” by the Constitutional Court’s judgment of 20 April 2020 (U 2/20; see paragraphs 115-117 and 202 above), holding that the resolution was inconsistent with several constitutional provisions. 230. Being confronted with two fundamentally opposite views of the Polish highest courts as to whether or not there was a manifest breach of the domestic law, the Court would emphasise, as it has done on many previous occasions, that it will normally cede to the national courts’ interpretation of whether there was a manifest breach, objectively and genuinely identifiable as such, of the domestic law, unless the national court’s findings can be regarded as arbitrary or manifestly unreasonable (see Guðmundur Andri Ástráðsson, cited above, § 244, with further references to the Court’s case-law. However, once a breach of the relevant domestic rules has been established, the assessment by the national courts of the legal effects of such breach must be carried out on the basis of the relevant Convention case-law and the principles derived therefrom. Where the national courts have duly assessed the facts and the complaints in the light of the Convention standards, have adequately weighed in the balance the competing interests at stake and have drawn the necessary conclusions, the Court would need strong reasons to substitute its own assessment for that of the national courts. Accordingly, while the national courts have discretion in determining how to strike the relevant balance, they are nevertheless required to comply with their obligations deriving from the Convention when they are undertaking that balancing exercise (ibid. § 251, with further references to the Court’s case-law). 231. The Court’s task in the present case is therefore not to resolve the existing conflict of opinions as to the application and interpretation of the domestic law or to substitute itself for the national courts in their assessment of the applicable provisions, but to review, in the light of the above principles, whether the Polish courts in their respective rulings struck the requisite balance between the various interests at stake and whether, in carrying out that exercise and reaching their conclusions, they paid due regard to, and respect for, the Convention standards required of a “tribunal established by law”. 232. As regards the domestic legal provisions applicable to the judicial appointment procedure, it is common ground that they are set out in the Constitution, the 2011 Act on the NCJ as amended by 2017 Amending Act, and the 2017 Act on the Supreme Court. Pursuant to these provisions read as a whole, judges are appointed to all levels and types of courts, including the Supreme Court, by the President of Poland following a recommendation of the NCJ – a recommendation which the NCJ issues after a competitive selection procedure in which it evaluates and nominates the candidates. The NCJ’s proposal of candidates to the President of Poland is a condition sine qua non for any judicial appointment (see Article 179 of the Constitution at paragraph 59 above). The President may not appoint a judge who has not been so recommended but, at the same time, as submitted by the Government, he is free not to appoint a recommended judge. 233. The NCJ itself is a constitutional body whose main role, in accordance with Article 186 § 1 of the Constitution, is to safeguard the independence of courts and judges. The composition of the NCJ is determined by Article 187 § 1 of the Constitution, which provides that the NCJ is composed as follows: (1) the First President of the Supreme Court, the Minister of Justice, the President of the Supreme Administrative Court and an individual appointed by the President of the Republic; (2) fifteen judges elected from among the judges of the Supreme Court, ordinary courts, administrative courts and military courts; and (3) four members elected by Sejm from among its Deputies and two members elected by the Senate from among its Senators. Pursuant to Article 187 § 4 of the Constitution, the organisational structure, scope of activity and the NCJ’s working procedures, as well as the manner of choosing its members, are specified by statute (see paragraph 59 above). 234. As noted above, the applicant’s primary argument is that the first manifest breach of the domestic law originated in the 2017 Amending Act, which had changed the manner of electing the fifteen judicial members of the NCJ, who were henceforth to be elected by Sejm and not, as previously, by their peers, and which had resulted in that body no longer being independent from the legislative and executive powers. 235. By way of a preliminary remark, the Court would observe that the impugned law is part and parcel of the legislation on the reorganisation of the Polish judiciary initiated by the government in 2017 and, as such, must be seen not in isolation but in the context of coordinated amendments to Polish law effected for that purpose and having regard to the fact that those amendments and their impact on the Polish judicial system have drawn the attention and prompted the concern of numerous international organisations and bodies, and have become the subject of several sets of proceedings before the CJEU (see also paragraphs 177-178 above). 236. According to the Government, the 2017 Amending Act was introduced in order to implement the Constitutional Court’s judgment of 20 June 2017, which had found that the provisions governing the procedure for electing members of the NCJ from among the judges of the ordinary courts and administrative courts were incompatible with Article 187 § 1 (2) in conjunction with Article 2 of the Constitution, the latter provision enshrining the rule of law principle (see paragraphs 109 and 197 above). Under the previous regulation, the judicial members of the NCJ were elected by judges, a rule which – until the said judgment of 20 June 2017 – had been firmly established in the Polish legal order and confirmed in unequivocal terms by the Constitutional Court in its judgment of 18 July 2007 (see paragraph 107 above). The Government, in line with the Constitutional Court’s position in the June 2017 judgment, argued that the previous model had been replaced by a “more democratic” one and that that change had been prompted by the need to remove the hitherto existing – in their view unjustified – difference of treatment with regard to the election of judges at various court levels, which had discriminated against judges sitting in lower courts as it had not provided them with equal opportunities of standing for election (see paragraph 200 above). 237. The Court accepts that the aim pursued and the general reasons given for the new model of election of judicial members to the NCJ could prima facie be considered legitimate. However, this justification alone cannot be seen as sufficient to substantiate the Constitutional Court’s complete reversal of its previous case-law without being based, as emphasised above, on a duly conducted assessment, weighing in the balance the competing interests at stake, as required under the Convention (see paragraph 230 above). 238. In this connection, the Court observes that, apart from its statement of dissent that “the Constitutional Court in its current composition does not agree with the [Constitutional Court’s] position in the judgment [of 18 July 2007] that the Constitution specifies that [judicial] members of the NCJ shall be elected by judges”, the Constitutional Court did not engage substantively with legal arguments contained in the earlier ruling. While it is true that the judgment was given after the composition of the Constitutional Court had changed following the December 2015 election of five new judges (for factual details see the information on the election process in Xero Flor w Polsce sp. z o.o. v. Poland, no. 4907/18, §§ 8-35, 7 May 2021 (not yet final); see also paragraph 112 above), this by itself could not serve as a ground for creating a new and divergent interpretation of the Constitution. Nor should it be an obstacle for the Constitutional Court judges to give convincing reasons – or explain specific legal considerations – for their departure from the final judgment, universally binding in its application, given by their predecessors, a judgment which had been in force for the previous ten years (see also Article 190 of the Polish Constitution cited in paragraph 59 above). 239. The purported aim to be achieved by means of the new interpretation of the Constitution, radically changing the existing election model, was to ensure that all the judges would have equal opportunities to stand for election to the NCJ. However, the Court has been unable to detect any attempt on the part of the Constitutional Court to explain in its judgment why and how the new election model would better serve the interests of the judiciary and equal opportunities or whether, and if so how, it would impact upon the NCJ’s primary constitutional obligation of safeguarding the independence of courts and judges, as laid down in Article 186 § 1 of the Constitution. Likewise, in the Constitutional Court’s assessment no consideration appears to have been given to the Convention case-law or the fundamental Convention principles of the rule of law, separation of powers and independence of the judiciary, principles which are also enshrined in the Polish Constitution and were obviously relevant in the context of the new interpretation. Furthermore, as demonstrated by subsequent developments, both at domestic and international level, the Constitutional Court appears to be isolated in its perception and assessment of the necessity and legitimacy of the change in the procedure for election of the judicial members of the NCJ. 240. To begin with, already at the early stage, the bill, which was to become the 2017 Amending Act, proposing that the judicial members of the NCJ be elected by Sejm, raised serious concerns as to its compliance with the European standards and its impact on the independence of this body and the Polish judiciary as a whole. 241. On 11 October 2017, PACE, in its resolution entitled “New threats to the rule of law in the Council of Europe States”, called on the Polish authorities to refrain from amending the 2011 Act on the NCJ in a manner that would modify the procedure for election of its judicial members and would establish political control over that procedure (see paragraph 136 above). 242. The OSCE/ODIHR and the Venice Commission in their opinions issued, respectively, on 5 May 2017 and 11 December 2017 spoke with one voice when assessing the consequences of the contemplated amendments. The OSCE/ODIHR said that “the proposed amendments raise[d] serious concerns with respect to key democratic principles, in particular the separation of powers and the independence of [the] judiciary”; that “the changes proposed ... could also affect the public trust in the judiciary, as well as its legitimacy and credibility” and that “if adopted, the amendments could undermine the very foundations of a democratic society governed by the rule of law”. It recommended that the proposed amending law “be reconsidered in its entirety and that the legal drafters ... not pursue its adoption” (see paragraph 128 above). The Venice Commission, for its part, stated that while the exact composition of judicial councils varied, it was widely accepted – as regards the States which had such a council – that at least half of the council members should be judges elected by their peers. It further emphasised that “the 2017 Amending Act was at odds with the European standards since the fifteen judicial members were not elected by their peers, but received their mandates from Parliament”. It also took the view that the proposed reform would lead to the NCJ being dominated by political nominees, “[g]iven that six other members of the NCJ [were] parliamentarians, and four others ex officio members or appointed by the President of the Republic”. It recommended that judicial members should be elected by their peers, as in the 2011 Act on the NCJ (see paragraph 140 above). 243. The CCJE, in its opinion of 12 October 2017, shared the above views, referring to a “fundamental concern of transferring the power to appoint members of the [NCJ] from the judiciary to the legislature, resulting in a severe risk of politicised judge members as a consequence of a politicised election procedure”. It considered that the judicial members of the NCJ should continue to be elected by the judiciary and that the proposed amendment was a “major step back as regards judicial independence in Poland”, adding that it was “deeply concerned” by the implications of the amendment for the principles of the separation of powers and the independence of the judiciary (see paragraph 144 above). 244. Further international reports that followed the Act’s entry into force concurred with that assessment. The UN Special Rapporteur on the Independence of Judges and Lawyers, in his report of 5 April 2018 following his mission to Poland, noted that the reorganisation of the Polish judicial system had been “undertaken by the governing majority in haste and without proper consultation with the opposition, the judiciary and civil society actors” and recommended that the 2017 Amending Act be “amended to bring it into line with the Constitution and international standards relating to the independence of the judiciary and separation of powers” by removing the provisions concerning the new election procedure and ensuring that the fifteen judicial members of the NCJ were elected by their peers (see paragraph 127 above). The Council of Europe Commissioner for Human Rights, in her report published on 28 June 2019 in the wake of her visit to Poland, expressed serious concerns regarding the composition and independence of the newly created NCJ and considered that entrusting the legislature with the task of electing its members undermined its independence (see paragraph 135 above). GRECO, in its two successive reports of June 2018 and December 2019, recommended that Poland amend the 2017 Amending Act to ensure that at least half of its members were judges elected by their peers (see paragraphs 147-148 above). 245. On 17 September 2018 the Extraordinary General Assembly of the ENCJ suspended the NCJ’s membership in that organisation for non-compliance with the NCJ’s statutory rule that a member should be independent from the executive, believing that the NCJ no longer guaranteed its “final responsibility for the support of [the] judiciary in the independent delivery of justice”. The 2020 ENCJ Executive Board proposal for expulsion of the NCJ from the organisation on the grounds that, among other things, it undermined the application of EU law on the independence of judges and its effectiveness and acted against the interests of the European Area of freedom, security and justice, and the values it stood for (see paragraphs 175-176 above). 246. At the same time, the European Union institutions noted, with similarly grave concern, legislative changes affecting the organisation and structure of the Supreme Court which had been introduced in tandem with the 2017 Amending Act by means of the 2017 Act on the Supreme Court and comprised various modifications, such as lowering the retirement age of the judges currently sitting in the court, removing the power of the First President of the Supreme Court to announce vacant positions in the court and creating two new chambers – the Disciplinary Chamber and that of Extraordinary Review, which, in contrast to all other chambers, were not subordinate to the First President of the Supreme Court and were given considerable autonomy, a separate, independent budget and structure, and, last but not least, an increased salary. In a unanimous assessment of the European Union institutions, the reorganisation of the Polish judicial system has been seen as creating a “clear risk of a serious breach of the values referred to in Article 2 of TEU” by Poland and a “systemic threat” to the rule of law in Poland, in particular the principle of the independence of the judiciary (see paragraphs 153 ‑ 160 above). 247. As in the case of the 2017 Amending Act, the Venice Commission raised its concerns about the 2017 Act on the Supreme Court and the Disciplinary Chamber already before the Act’s entry into force, in its report adopted on 11 December 2017. It considered that the proposed creation of new chambers – the Disciplinary Chamber and the Chamber of Extraordinary Review and Public Affairs “[would] not only threaten the independence of the judges of the Supreme Court, but also create a serious risk for the legal certainty”. In sum, considering the cumulative effect of the amendments proposed under both Acts, the Venice Commission concluded that they would put the judiciary under direct control of the parliamentary majority and of the President of Poland, contrary to the very idea of the separation of powers and judicial independence laid down in Articles 10 and 173 of the Polish Constitution (see paragraph 140 above). Similar views were expressed subsequently, after the Act entered into force, by PACE and the Council of Europe’s Commissioner for Human Rights (see paragraphs 135 and 137-138 above). 248. At domestic level, the same concerns and serious doubts as to whether the Disciplinary Chamber, given the involvement of the NCJ in the appointment procedure for the judges and the characteristics of this body, gave rise to the requests to the CJEU from the Supreme Court’s Chamber of Labour and Social Security for a preliminary ruling in three cases. The requests were made in August and September 2018 (see paragraphs 46 and 71 above). 249. On 19 November 2019 the CJEU, after obtaining an opinion from Advocate General Tanchev concluding that the Disciplinary Chamber did not satisfy the requirements of independence set out in Article 47 of the Charter, and recalling that the interpretation of Article 47 was borne out by the Court’s case-law under Article 6 § 1, delivered a preliminary ruling reiterating the elements that were relevant for the referring court in its own assessment (see paragraph 164 above). The indications formulated by the CJEU can be summarised as follows: (1) While the mere fact that the Disciplinary Chamber’s judges were appointed by the President of Poland did not give rise to a relationship of subordination of the former to the latter or to doubts as to the former’s impartiality if, once appointed, they were free from influence and pressure when carrying their role, it was still necessary to ensure that the substantive conditions and detailed procedural rules governing the adoption of appointment decisions were such that they could not give rise to reasonable doubt, in the minds of individuals, as to the imperviousness of the judges concerned to external factors and as to their neutrality with respect to the interest before them. (2) The participation of a body such as the NCJ, empowered under Article 186 of the Constitution to ensure the independence of the courts and the judiciary in the context of judicial appointments might, as such, contribute to making that process more objective; in particular, the fact of subjecting, to a favourable opinion of the NCJ, the very possibility for the President of Poland to appoint a judge to the Supreme Court could be seen as being capable of objectively circumscribing the President’s discretion. However, this would be the case only where that body itself was sufficiently independent from the legislature and the executive and from the authority to which it delivered its appointment proposal. (3) The degree of independence of the NCJ in respect of the legislature and the executive in exercising its responsibilities could become relevant in ascertaining whether the judges it selected would be capable of meeting the requirements of independence and impartiality under Article 47 of the Charter. (4) The circumstances in which the members of that body were appointed and the way in which that body actually exercised its role were relevant for that assessment. ( 5) Notwithstanding the assessment of the circumstances in which the new judges of the Disciplinary Chamber had been appointed or the NCJ’s role in that regard, there were various other features of concern, such as the exclusive jurisdiction of that Chamber in cases involving the employment, social security and retirement of the Supreme Court judges, the fact that it had been constituted solely of newly appointed judges – as judges who had previously been sitting in the Supreme Court were excluded – and the particularly high degree of autonomy within that court. 250. As to the application of Article 47 of the Charter and Article 9(1) of Directive 2000/78 (see paragraphs 152 and 164 above), the CJEU held as follows: “Article 47 of the Charter and Article 9(1) of Directive 2000/78 must be interpreted as precluding cases concerning the application of EU law from falling within the exclusive jurisdiction of a court which is not an independent and impartial tribunal, within the meaning of the former provision. That is the case where the objective circumstances in which that court was formed, its characteristics and the means by which its members have been appointed are capable of giving rise to legitimate doubts, in the minds of subjects of the law, as to the imperviousness of that court to external factors, in particular, as to the direct or indirect influence of the legislature and the executive and its neutrality with respect to the interests before it and, thus, may lead to that court not being seen to be independent or impartial with the consequence of prejudicing the trust which justice in a democratic society must inspire in subjects of the law. It is for the referring court to determine, in the light of all the relevant factors established before it, whether that applies to a court such as the Disciplinary Chamber of the Sąd Najwyższy (Supreme Court). If that is the case, the principle of the primacy of EU law must be interpreted as requiring the referring court to disapply the provision of national law which reserves jurisdiction to hear and rule on the cases in the main proceedings to the abovementioned chamber, so that those cases may be examined by a court which meets the abovementioned requirements of independence and impartiality and which, were it not for that provision, would have jurisdiction in the relevant field.” 251. On 5 December 2019 the Labour and Social Security Chamber of the Supreme Court gave judgment in the first of three cases referred for a preliminary ruling to the CJEU. Emphasising that in that case it was performing exclusively the role of an EU court implementing the CJEU ruling and that it was not examining the constitutionality of the 2017 Amending Act but rather its compatibility with EU law (see paragraphs 72 and 75 above), the Supreme Court made an extensive analysis of the domestic legislation in the light of the CJEU’s guidance and the Convention case-law under Article 6 of the Convention (see paragraphs 71-86 above). 252. As regards the circumstances in which the NCJ had been created and the Constitutional Court judgment of 20 June 2017 that had given rise to the change in the election procedure, the Supreme Court observed that, given the absence of any amendment to the Constitution, the Constitutional Court had not so much changed the position taken in the 2007 judgment but, rather, had created a divergence in its case-law regarding systemic issues of fundamental importance to the enforcement of the right to a fair trial and fundamental obligations under EU law. In its view, the new interpretation was not supported by legal theory and the judgment itself had been a manifestation of a constitutional crisis in Poland as it had been delivered by a formation including two members appointed in an unlawful procedure (see paragraph 73 above). 253. It further found that under the 2017 Amending Act, which had been enacted notwithstanding the long tradition of judicial members of the NCJ being elected by their peers and the principle of the separation of powers, the legislature and the executive had gained almost a monopolistic position in deciding on NCJ membership, since twenty-three out of twenty-five its members were ultimately appointed by authorities other than the judiciary. In consequence, the principle of division of State powers and their separation, laid down in Article 10 of the Constitution, had been disregarded. 254. As regards the manner in which the NCJ had exercised its role of safeguarding the independence of the courts and judges in practice, the Supreme Court found that it had failed to fulfil its constitutional obligation in that respect since it had taken no action in defence of the Supreme Court’s independence or in order to forestall attempts to force the Supreme Court judges into retirement after the 2017 Act on the Supreme Court took effect. Moreover, the NCJ members had publicly demanded that disciplinary action be taken against judges filing requests for a preliminary ruling to the CJEU and had challenged the right to make such requests (see paragraph 80 above). Having regard to all the relevant circumstances, the Supreme Court concluded that that NCJ did not provide sufficient guarantees of independence from the legislative and executive authorities in the judicial appointment procedure (see paragraph 81 above). 255. As to the Disciplinary Chamber, the Supreme Court followed the guidance given by the CJEU in the judgment of 19 November 2019 and looked at various elements. It considered that, when taken separately, they were not conclusive of that chamber’s failure to comply with the standards set out in Article 47 of the Charter, Article 6 of the Convention and Article 45 § 1 of the Constitution. However, in view of such circumstances, taken together, as: (i) the chamber being created from scratch; (ii) its being composed of persons with very strong connections to the legislative and executive powers and who, prior to their appointment, had been beneficiaries of the reorganisation of the justice system; (iii) the chamber being afforded a broad autonomy within the Supreme Court, with a distinctive structure and jurisdiction which included competences taken away from other courts and other chambers of the Supreme Court; and (iv) the fact that its members were selected and proposed for judicial appointment by the NCJ, which lacked independence from the legislature and the executive; the Disciplinary Chamber clearly and unequivocally was not a “tribunal” or “court” within the meaning of the above provisions. 256. The above conclusions regarding the NCJ’s lack of independence and the Disciplinary Chamber’s lack of attributes of a “tribunal” were fully endorsed by the Supreme Court, sitting in a formation of fifty-nine judges of the joined Civil, Criminal and Social Security Chambers, in its interpretative resolution of 23 January 2020. In that context, it is to be noted that this resolution resulted from a divergence in the Supreme Court’s case-law, having been caused, in particular, by the resolution of the Chamber of Extraordinary Review and Public Affairs, which, in contrast to the above judgment of 5 December 2019, had interpreted narrowly the consequences for the Disciplinary Chamber of the CJEU ruling of 19 November 2019 (see paragraphs 48 ‑ 50 and 89 above). 257. The joined Chambers found that, following the change in the election procedure under the 2017 Amending Act and the circumstances in which the NCJ had been constituted, this body lacked the necessary independence from the legislative and executive powers and that a judicial formation including a person appointed upon its recommendation – be it a judge appointed to the Supreme Court or to military or ordinary courts – was contrary to the law and amounted to a breach of Article 47 of the Charter, Article 6 § 1 of the Convention and Article 45 § 1 of the Constitution (see paragraphs 89-105 above). These conclusions, explained in extensive reasoning, were reached after a thorough, meticulous assessment of all the elements relevant to an “independent and impartial tribunal established by law” in the light of the constitutional principles governing the NCJ’s functioning, including the principle of the separation and balance of the legislative, executive and judicial powers and the principle of the independence of the judiciary (see paragraphs 93-94 above). 258. The Government submitted that the Supreme Court’s interpretative resolution had been “removed” by the Constitutional Court’s judgment of 20 April 2020 holding that the President of Poland’s decisions on judicial appointments could not be subject to any type of review, including by the Supreme Court, and declaring that the resolution was incompatible with a number of constitutional provisions, including, inter alia, the principle of the rule of law (Article 2), the obligation to respect international law binding on Poland (Article 9), the principle of legality (Article 7), the right to a fair hearing before an impartial and independent court (Article 45 § 1) and the provision setting out the President’s prerogative to appoint judges (Article 144 § 3 (17)), and that it was also in breach of Articles 2 and 4(3) of TEU and Article 6 § 1 of the Convention. 259. The Court does not share this assessment for a number of reasons stated below. In that regard, it would again stress that it is not this Court’s task to interpret the Polish Constitution and that the statements below are not to be read as in any way implying that the Court seeks to substitute itself for the Constitutional Court in its role (see paragraph 231 above). However, this Court has a treaty-given power under Article 32 § 1 of the Convention to rule on all matters concerning the interpretation and application of the Convention. In the exercise of that power, in accordance with its case-law, it may review the domestic courts’ decisions so as to ascertain whether those courts struck the requisite balance between the various competing interests at stake and correctly applied the Convention standards (see paragraph 230 above) 260. In this context, the Court reiterates that the right to a fair trial under Article 6 § 1 of the Convention must be interpreted in the light of the Preamble to the Convention, which, in its relevant part, declares the rule of law to be part of the common heritage of the Contracting States. The right to “a tribunal established by law” is a reflection of this very principle of the rule of law and, as such, it plays an important role in upholding the separation of powers and the independence and legitimacy of the judiciary as required in a democratic society (see Guðmundur Andri Ástráðsson, cited above, § 237). It is also to be reiterated that although the right to a “tribunal established by law” is a stand ‑ alone right under Article 6 § 1 of the Convention, there is a very close interrelationship between that specific right and the guarantees of “independence” and “impartiality”. While all three elements each serve specific purposes as distinct fair trial safeguards, the Court has discerned a common thread running through the institutional requirements of Article 6 § 1, in that they are guided by the aim of upholding the fundamental principles of the rule of law and the separation of powers (see Guðmundur Andri Ástráðsson, cited above, §§ 232 ‑ 233). 261. Turning to the present case, the Court is not persuaded that the Constitutional Court’s judgment relied on by the Government deprived the Supreme Court’s resolution of its meaning or effects for the purposes of this Court’s ruling as to whether there has been a “manifest breach of the domestic law” in terms of Article 6 § 1. This judgment appears to focus mainly on protecting the President’s constitutional prerogative to appoint judges and the status quo of the current NCJ, leaving aside the issues which were crucial in the Supreme Court’s assessment, such as an inherent lack of independence of the NCJ which, in that court’s view, irretrievably tainted the whole process of judicial appointments, including to the Disciplinary Chamber. The Constitutional Court, while formally relying on the constitutional principles of the separation of powers and the independence of the judiciary, refrained from any meaningful analysis of the Supreme Court’s resolution in the light of these principles. The same is true in respect of the Constitutional Court’s interpretation of the standards of independence and impartiality of a court under Article 6 § 1 of the Convention that led it to the conclusion that the Supreme Court’s interpretative resolution was incompatible with that provision. In particular, the Constitutional Court found that those Convention standards excluded the power of “other judges” to generally question a “judge’s right to adjudicate” or to verify “the regularity of the procedure preceding the appointment of a judge by the President” (see paragraph 116 above). The Court sees no conceivable basis in its case-law for such a conclusion. In that regard, it would reiterate that “independence of a tribunal established by law” refers to the necessary personal and institutional independence that is required for impartial decision making, and it is thus a prerequisite for impartiality. It characterises both (i) a state of mind, which denotes a judge’s imperviousness to external pressure as a matter of moral integrity, and (ii) a set of institutional and operational arrangements – involving both a procedure by which judges can be appointed in a manner that ensures their independence and selection criteria based on merit –, which must provide safeguards against undue influence and/or unfettered discretion of the other State powers, both at the initial stage of the appointment of a judge and during the exercise of his or her duties (see Guðmundur Andri Ástráðsson, cited above, § 234 and the case-law cited therein). 262. Considering the apparent absence of a comprehensive, balanced and objective analysis of the circumstances before it in Convention terms, the Court finds that the Constitutional Court’s evaluation must be regarded as arbitrary and as such cannot carry any weight in the Court’s conclusion as to whether there was a manifest breach, objectively and genuinely identifiable as such, of the domestic law involved in the procedure for judicial appointments to the Disciplinary Chamber (see paragraph 259 above). 263. Furthermore, in the Court’s view this judgment must be seen in conjunction with the general context in which the Constitutional Court has operated since the end of 2015 and its actions aimed at undermining the Supreme Court resolution’s finding as to the manifest breach of domestic and international law due to the deficient judicial appointment procedure involving the NCJ. These actions started from an unprecedented interim decision of 28 January 2020, suspending the Supreme Court’s jurisdiction to issue resolutions concerning the compatibility, with international law and the case-law of international courts, of the NCJ’s composition, the procedure for judicial appointments conducted by that body and the President’s prerogative to appoint judges (see paragraph 119 above). The Court considers that this kind of interference with a judicial body, aimed at incapacitating it in the exercise of its adjudicatory function in the application and interpretation of the Convention and other international treaties, must be characterised as an affront to the rule of law and the independence of the judiciary. The Constitutional Court’s final decision on that matter given on 21 April 2020 perpetuated this state of affairs, in holding that the Supreme Court had “no jurisdiction” to issue resolutions on the interpretation of legal provisions that could lead to “modification of the legal situation regarding the organisational structure of the judiciary” (see paragraphs 120 ‑ 121 above). Lastly, the Court would note in passing that the bench of the Constitutional Court that issued all four above-mentioned rulings of 20 June 2017 and 28 January, 20 and 21 April 2020 included Judge M.M. (see paragraphs 112, 116 and 120 above), whose own appointment to the Constitutional Court raised doubts as to whether it was lawful and whose participation in the Constitutional Court formation has been the subject of the Court’s assessment as to whether such formation met the criteria of a “tribunal established by law” in a judgment given by the Court in the case of Xero Flor w Polsce sp. z o.o. (cited above). 264. Having regard to all the above considerations, and in particular to the convincing and forceful arguments of the Supreme Court in the judgment of 5 December 2019 and the resolution of 23 January 2020, and that court’s conclusions as to the procedure for judicial appointments to the Disciplinary Chamber being contrary to the law – conclusions reached after a thorough and careful evaluation of the relevant Polish law from the perspective of the Convention’s fundamental standards and of EU law, and in application of the CJEU’s guidance and case-law – the Court finds it established that in the present case there was a manifest breach of the domestic law for the purposes of the first step of the Ástráðsson test. 265. The applicant alleged a second breach of the domestic law in that the President of Poland’s announcement of vacant positions in the Supreme Court had lacked the Prime Minister’s countersignature (see paragraph 189 above). The Court notes that, in that respect, the Government’s position on the matter differs from opinions expressed by the Supreme Court and, most recently, the Supreme Administrative Court (see paragraphs 97 and 122 ‑ 125 above). However, given that, as established above, the process of judicial appointments to the Disciplinary Chamber was inherently defective on account of the involvement of the NCJ as a body lacking independence from the legislature and executive, the Court does not find it necessary to ascertain whether in addition there was a separate breach of the domestic law resulting from the fact that the President’s announcement of vacant positions in the Supreme Court was made without the Prime Minister’s countersignature. (iii) Whether the breach of the domestic law pertained to a fundamental rule of the procedure for appointing judges 266. When determining whether a particular defect in the judicial appointment process was of such gravity as to amount to a violation of the right to a “tribunal established by law”, regard must be had, inter alia, to the purpose of the law breached, that is, whether it sought to prevent any undue interference by the executive or the legislature with the judiciary, and whether the breach in question undermined the very essence of the right to a “tribunal established by law” (see Guðmundur Andri Ástráðsson, cited above, §§ 226 and 255). 267. The process of appointment of judges may be open to such undue interference, and it therefore calls for strict scrutiny; moreover, it is evident that breaches of the law regulating the judicial appointment process may render the participation of the relevant judge in the examination of a case “irregular”, given the correlation between the procedure for the appointment of a judge and the “lawfulness” of the bench on which such a judge subsequently sits (ibid., § 226). 268. In that context, the Court would also refer to the following statement in the CJEU preliminary ruling of 19 November 2019: “139 The degree of independence enjoyed by the [NCJ] in respect of the legislature and the executive in exercising the responsibilities attributed to it under national legislation, as the body empowered, under Article 186 of the Constitution, to ensure the independence of the courts and of the judiciary, may become relevant when ascertaining whether the judges which it selects will be capable of meeting the requirements of independence and impartiality arising from Article 47 of the Charter.” 269. As regards the degree of independence of the NCJ and the issue whether there was undue interference by the legislative and executive powers with the appointment process, the Court would first refer to the various – and in substance unanimous – opinions of the international organisation and bodies which have already been cited above, according to which the changes in the election procedure for the judicial members of the NCJ introduced under the 2017 Amending Act resulted in the NCJ no longer being independent or able to fulfil its constitutional obligation of safeguarding the independence of courts and judges (see paragraphs 240 ‑ 245 above). 270. In that context, the Court also finds it important to take into account the circumstances in which the new NCJ was constituted. 271. After the entry into force of the 2017 Amending Act on 17 January 2018, Sejm proceeded with an examination of the applications from candidates to the new NCJ and elected its fifteen judicial members on 6 March 2018 (see paragraph 14 above). As submitted by a third-party intervener, the Polish Commissioner for Human Rights, the elections were apparently boycotted by the legal community as only eighteen candidates applied for fifteen positions to the new NCJ (see paragraph 206 above). As pointed out by the second intervener, the ICJ, six judges out of fifteen appointed to the NCJ by the Parliament had been in the past six months appointed as president or vice-president of courts by the Minister of Justice (see paragraph 212 above). The concerns were raised by the Council of Europe Commissioner for Human Rights (see paragraph 29 of the report of 28 June 2019 in paragraph 135 above) and the ENCJ (see paragraph 175 above) that the majority of the members of the current NCJ were either members of the ruling party, holders of governmental office or chosen by Parliament on the recommendation of the ruling party. 272. The Supreme Court, in its judgment of 5 December 2019, found that it was the executive, through persons directly or indirectly subordinate to it, which proposed most of the candidates for election as judicial members of the NCJ (see paragraphs 77-79 above). The Supreme Court, in its resolution of 23 January 2020, established that there had been a significant influence exerted by the Minister of Justice, who was also the Prosecutor General, on the composition of the NCJ. It noted that this had been confirmed by the official statement of the Minister himself in the Senate of the Republic of Poland (see paragraph 100 above). 273. There also appears to have been some controversy surrounding the initial non-disclosure of the endorsement lists by the executive authorities, which had made it impossible to verify whether the candidates had obtained the required number of signatures of judges to endorse their candidatures for election to the NCJ (see paragraphs 16-22 above). In the Court’s view, a situation where the public is not given official clarification as to whether the formal requirement of obtaining sufficient support for the candidates for the NCJ has been met may raise doubts as to the legality of the process of election of its members. Moreover, a lack of scrutiny of who had supported the candidates for the NCJ may raise suspicions as to the qualifications of its members and to their direct or indirect ties to the executive. According to the information now in the public domain, the NCJ had been elected with the support of a narrow group of judges with strong ties to the executive (judges seconded to the Ministry of Justice and the presidents and vice-presidents of courts recently promoted to those offices by the Minister of Justice; see also paragraph 176 above). As indicated by the Supreme Court, there were also doubts as to whether all elected members of the NCJ had fulfilled the legal requirement of having been supported by twenty-five active judges (see paragraphs 78 and 96 above and the statement by the third-party intervener at paragraph 207 above). 274. In view of the foregoing, the Court finds that by virtue of the 2017 Amending Act, which deprived the judiciary of the right to nominate and elect judicial members of the NCJ – a right afforded to it under the previous legislation and recognised by international standards – the legislative and the executive powers achieved a decisive influence on the composition of the NCJ (see paragraphs 126-148 and 155-176 above). The Act practically removed not only the previous representative system but also the safeguards of independence of the judiciary in that regard. This, in effect, enabled the executive and the legislature to interfere directly or indirectly in the judicial appointment procedure, a possibility of which these authorities took advantage – as shown, for instance, by the circumstances surrounding the endorsement of judicial candidates for the NCJ (see paragraphs 271-272 above). 275. At the same time, under the 2017 Act on the Supreme Court, the First President of the Supreme Court was divested of her prerogative to announce vacant positions in that court, this prerogative being taken away from her in favour of the President of Poland. Even though the Court has not found it necessary to ascertain whether or not the President’s announcement of vacant positions in the Disciplinary Chamber was contrary to the domestic law (see paragraph 265 above), it must note that depriving the First President of that prerogative further weakened the involvement of the judiciary in the judicial appointment process, in particular appointments to the Supreme Court. 276. Assessing all the above circumstances as a whole, the Court finds that the breach of the domestic law that it has established above, arising from non-compliance with the principle of the separation of powers and the independence of the judiciary, inherently tarnished the impugned appointment procedure since, as a consequence of that breach, the recommendation of candidates for judicial appointment to the Disciplinary Chamber – a condition sine qua non for appointment by the President of Poland – was entrusted to the NCJ, a body that lacked sufficient guarantees of independence from the legislature and the executive. A procedure for appointing judges which, as in the present case, discloses an undue influence of the legislative and executive powers on the appointment of judges is per se incompatible with Article 6 § 1 of the Convention and as such, amounts to a fundamental irregularity adversely affecting the whole process and compromising the legitimacy of a court composed of judges so appointed. 277. In sum, the breaches in the procedure for the appointment of judges to the Disciplinary Chamber were of such gravity that they impaired the very essence of the right to a “tribunal established by law”. (iv) Whether the allegations regarding the right to a “tribunal established by law” were effectively reviewed and remedied by the domestic courts 278. The Government considered that it was not necessary to carry out the third step of the test (see paragraph 193 above). Neither the Government nor the applicant argued that there had been a procedure under Polish law whereby the applicant could challenge the alleged defects in the procedure for the appointment of judges to the Disciplinary Chamber of the Supreme Court. 279. The Court finds that there was no such procedure directly available to the applicant. Consequently, no remedies were provided (see Guðmundur Andri Ástráðsson, cited above, § 248). (v) Overall conclusion 280. The Court has established that there was a manifest breach of the domestic law which adversely affected the fundamental rules of procedure for the appointment of judges to the Disciplinary Chamber of the Supreme Court, since the appointment was effected upon a recommendation of the NCJ, established under the 2017 Amending Act, a body which no longer offered sufficient guarantees of independence from the legislative or executive powers. The irregularities in the appointment process compromised the legitimacy of the Disciplinary Chamber to the extent that, following an inherently deficient procedure for judicial appointments, it did lack and continues to lack the attributes of a “tribunal” which is “lawful” for the purposes of Article 6 § 1. The very essence of the right at issue has therefore been affected. 281. In the light of the foregoing, and having regard to its overall assessment under the three-step test set out above, the Court concludes that the Disciplinary Chamber of the Supreme Court, which examined the applicant’s case, was not a “tribunal established by law”. 282. Accordingly, there has been a violation of Article 6 § 1 of the Convention in that regard. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION AS REGARDS the RIGHT TO AN INDEPENDENT AND IMPARTIAL TRIBUNAL 283. The applicant complained that the facts of the case also disclosed a breach of the right to an independent and impartial tribunal as provided for in Article 6 § 1 of the Convention. The Government contested this view and argued that there had been no violation of this provision of the Convention. 284. The Court notes that in the present case the complaints concerning the “tribunal established by law” and “independence and impartiality” requirements stem from the same underlying problem of an inherently deficient procedure for judicial appointments to the Disciplinary Chamber of the Supreme Court. As the Court has found above, the irregularities in question were of such gravity that they undermined the very essence of the right to have the case examined by a tribunal established by law (see paragraphs 280-281 above). Having made that finding, the Court concludes that the remaining question as to whether the same irregularities have also compromised the independence and impartiality of the same court has already been answered (see paragraphs 227-280 above) and does not require further examination. APPLICATION OF ARTICLE 41 OF THE CONVENTION 285. 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 286. The applicant claimed 135,000 euros (EUR) in respect of pecuniary damage and EUR 25,000 for non-pecuniary damage. 287. The Government contested the claims and considered them excessive. 288. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, it awards the applicant EUR 15,000 in respect of non-pecuniary damage, plus any tax that may be chargeable. Costs and expenses 289. The applicant, who was represented by a lawyer of her choice and was granted legal aid, also claimed EUR 420 for the costs and expenses incurred before the Court. 290. The Government considered that the applicant’s claims should be rejected as unsubstantiated. 291. 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 – in addition to the amount of EUR 850 received under the Court’s legal aid scheme – the claimed sum in full, plus any tax that may be chargeable to the applicant. Default interest 292. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 6 § 1 of the Convention, finding that the Disciplinary Chamber of the Supreme Court, which had examined the applicant’s case, was not a “tribunal established by law”. It noted, in particular, that the procedure for appointing judges to the Disciplinary Chamber had been unduly influenced by the legislative and executive powers. That amounted to a fundamental irregularity that adversely affected the whole process and compromised the legitimacy of the Disciplinary Chamber. |
1,039 | Care allowances and personal assistance | RELEVANT LEGAL FRAMEWORK DOMESTIC LAW 14. Law no. 448/2006 on the protection and promotion of the rights of people with disabilities (“the Disability Act”) puts in place a protection mechanism for people with disabilities, based on the following principles: respect for human rights; non-discrimination; equal opportunities; social solidarity; freedom to choose, control and make decisions concerning one’s own life and the services and type of support received; social inclusion; and respect for the specific needs of people with disabilities. It sets up for each county a Commission for the Assessment of Adults with Disabilities, which operates under the authority of the relevant local council and consists of two physicians, a psychologist, a member of civil society and a social assistant (Article 85). The Act also sets up, within each County Directorate General for Social Welfare and Child Protection, a Service for the Complex Evaluation of Adults with Disabilities (Articles 87 and 88). The role of that service is to prepare a report of the complex evaluation of people seeking disability benefits under the Act. On the basis of that report, the Commission for the Assessment of Adults with Disabilities assesses the level of disability of the persons concerned, in accordance with the criteria (medical, psychological and social) and scales set forth by joint order of the Ministry of Work, Family and Equal Opportunity and the Ministry of Health. 15. In accordance with Article 86 of the Disability Act, the levels of disability are: mild, medium, accentuated and severe. Under Article 35 of the same Act, a person with severe disability is entitled to a personal assistant, based on the socio ‑ psycho-medical evaluation. 16. By Order no. 762/2007, the Ministry of Work, Family and Equal Opportunity and the Ministry of Health approved the criteria for the complex evaluation of the level of disability required by the Disability Act as well as for the assessment of the ADL index (see paragraph 6 above). 17. Chapter 7.III.1 of that Order describes the levels of disability and access to assistance in the case of amputation. In this context, partial amputation as a medical condition is classified as a medium disability. The ADL index for amputation is calculated as follows: - personal hygiene: autonomous – 2 points, partial help – 1 point, dependent – 0 points; - dressing: autonomous – 2 points, autonomous for dressing but help needed for putting shoes – 1 point, dependent – 0 points; - using the bathroom: autonomous – 2 points, help needed – 1 point, helped in bed – 0 points; - sphincter control: continence – 2 points; occasional incontinence – 1 point, incontinence – 0 points; - feeding: feeding independently – 2 points, help needed for using the knife – 1 point; dependent – 0 points. 18. The overall ADL index is defined as follows: - stage I – 10 points: autonomy - stage II – 8 to 10 points: quasi-independence - stage III – 3 to 8 points: assisted independence - stage IV – 0 to 3 points: total dependency, necessitates personal assistant. 19. The Order indicates that the medium disability is compatible with any profession except those requiring, for example, standing, and recommends, among others, ensuring protheses and orthoses in order to allow participation in social life without restrictions. For the severe disability the Order indicates as follows: “The social inquiry has a major role in establishing the level of autonomy and of functionality left ... [in order to ensure assistive devices] which would allow the person concerned to carry out the daily activities as autonomously as possible. ... Based on the result of the complex evaluation, a person may be classified as having a severe disability necessitating a personal assistant when he/she has lost completely the capacity to [take care of himself/herself] and needs permanent help, or [as having a] severe [disability] without personal assistant when he/she needs partial help for some of the daily activities.” EUROPEAN UNION LAW 20. The relevant provisions of the Treaty on European Union (OJ C 202, 7.6.2016) read 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. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.” 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.” 21. The relevant provision of the Treaty on the Functioning of the European Union (OJ C 202, 7.6.2016) – which constitutes the legal basis, for instance, for Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation which prohibits discrimination based on religion or belief, disability, age or sexual orientation – reads as follows: Article 19 “1. Without prejudice to the other provisions of the Treaties and within the limits of the powers conferred by them upon the Union, the Council, acting unanimously in accordance with a special legislative procedure and after obtaining the consent of the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.” 22. The relevant provisions of the Charter of Fundamental Rights of the European Union read as follows: Article 25 - The rights of the elderly “The Union recognises and respects the rights of the elderly to lead a life of dignity and independence and to participate in social and cultural life.” Article 26 - Integration of persons with disabilities “The Union recognises and respects the right of persons with disabilities to benefit from measures designed to ensure their independence, social and occupational integration and participation in the life of the community.” INTERNATIONAL MATERIALS 23. The relevant provisions of the United Nations Convention on the Rights of Persons with Disabilities (“the CRPD”), which was ratified by Romania on 31 January 2011, read 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 ...” Article 3 - General principles “The principles of the present Convention shall be: (a) Respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons ...” Article 19 - Living independently and being included in the community “States Parties to this Convention recognize the equal right of all persons with disabilities to live in the community, with choices equal to others, and shall take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community, including by ensuring that: (a) Persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement; (b) Persons with disabilities have access to a range of in-home, residential and other community support services, including personal assistance necessary to support living and inclusion in the community, and to prevent isolation or segregation from the community; (c) Community services and facilities for the general population are available on an equal basis to persons with disabilities and are responsive to their needs.” Article 20 - Personal mobility “States Parties shall take effective measures to ensure personal mobility with the greatest possible independence for persons with disabilities, including by: (a) Facilitating the personal mobility of persons with disabilities in the manner and at the time of their choice, and at affordable cost; (b) Facilitating access by persons with disabilities to quality mobility aids, devices, assistive technologies and forms of live assistance and intermediaries, including by making them available at affordable cost ...” Article 28 - Adequate standard of living and social protection “1. States Parties recognize the right of persons with disabilities to an adequate standard of living for themselves and their families, including adequate food, clothing and housing, and to the continuous improvement of living conditions, and shall take appropriate steps to safeguard and promote the realization of this right without discrimination on the basis of disability. 2. States Parties recognize the right of persons with disabilities to social protection and to the enjoyment of that right without discrimination on the basis of disability, and shall take appropriate steps to safeguard and promote the realization of this right, including measures: ... (b) To ensure access by persons with disabilities, in particular women and girls with disabilities and older persons with disabilities, to social protection programmes and poverty reduction programmes ...” THE LAW PRELIMINARY ISSUE 24. The Government submitted that the applicant’s son, Mr Ioan-Dan Jivan, had no legitimate interest in pursuing the application lodged by his late father and requested that the application be struck out of the list of cases, in accordance with Article 37 § 1 (c) of the Convention. 25. The applicant died in 2020, while the case was pending before the Court. On 27 April 2020 his son and only heir informed the Court that he wished to pursue the present application (see paragraph 2 above). The Court has accepted on numerous occasions that close relatives of a deceased applicant are entitled to take the applicant’s place in the proceedings, if they express their wish to do so (see, among other authorities, Dalban v. Romania [GC], no. 28114/95, §§ 38-39, ECHR; Mile Novaković v. Croatia, no. 73544/14, § 33, 17 December 2020; and Kanal v. Turkey, no. 55303/12, §§ 5 and 23, 15 January 2019). 26. The Court does not see any special circumstances in the present case to depart from its established case-law and is prepared to accept that the applicant’s son can pursue the application initially brought by the applicant. Consequently, the Government’s objection must be dismissed (see Mile Novaković, cited above, § 34, and Hristozov and Others v. Bulgaria, nos. 47039/11 and 358/12, § 68-75, ECHR 2012 (extracts)). 27. For practical reasons, Mr Ioan-Doroteu Jivan will continue to be called “the applicant” in this judgment, although Mr Ioan-Dan Jivan is now to be regarded as such (see Dalban, cited above, § 1). ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 28. The applicant complained that by denying him the benefit of a personal assistant, a right of which he should have benefitted by virtue of law (see paragraphs 15 to 19 above), the authorities had breached his right to respect for his private life, in so far as they had deprived him of his autonomy and of access to the outside world, thus forcing him into isolation. He relied on 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.” AdmissibilityApplicability Applicability Applicability 29. The Court must first decide whether Article 8 is applicable to the facts of the present case (see Denisov v. Ukraine [GC], no. 76639/11, § 93, 25 September 2018, and Association ACCEPT and Others v. Romania, no. 19237/16, § 62, 1 June 2021). 30. The concept of “private life” within the meaning of Article 8 of the Convention is a broad one not susceptible to exhaustive definition and embraces, among other things, a right to self-determination (see Parrillo v. Italy [GC], no. 46470/11, § 153, ECHR 2015 with further references). Moreover, the notion of personal autonomy is an important principle underlying the interpretation of the guarantees enshrined in Article 8 (see Pretty v. the United Kingdom, no. 2346/02, § 61, ECHR 2002 ‑ III). It concerns a particularly important aspect of the applicant’s existence and identity – one of the core rights attracting the protection of Article 8 of the Convention (contrast Parrillo, cited above, § 174). 31. However, Article 8 cannot be considered applicable each time an individual’s everyday life is disrupted, but only in the exceptional cases where the State’s failure to adopt measures interferes with that individual’s right to personal development and his or her right to establish and maintain relations with other human beings and the outside world. It is incumbent on the individual concerned to demonstrate the existence of a special link between the situation complained of and the particular needs of his or her private life (see Zehnalovà and Zehnal v. the Czech Republic (dec.), no. 38621/97, ECHR 2002-V). 32. In a number of cases, the Court has held that Article 8 is relevant to complaints about public funding to facilitate the mobility and quality of life of disabled applicants (see McDonald v. the United Kingdom, no. 4241/12, § 46, 20 May 2014, with further references). 33. In Pretty, the Court held that the very essence of the Convention was respect for human dignity and human freedom; indeed, it was under Article 8 that notions of the quality of life took on significance because, in an era of growing medical sophistication combined with longer life expectancies, many people were concerned that they should not be forced to linger on in old age or in states of advanced physical or mental decrepitude which conflicted with their strongly held ideas of self and personal identity (see Pretty, cited above, § 65). Although the facts of the present case differ significantly from those of Pretty, in so far as the present applicant believed that the level of care offered by the authorities forced him into isolation and deprived him of his autonomy (see paragraph 28 above), he too was faced with the possibility of living in a manner which “conflicted with [his] strongly held ideas of self and personal identity” (see, mutatis mutandis, McDonald, cited above, § 47). 34. In the present case, the applicant’s actual conditions were severe: he was old, immobilised, partially incontinent, and needed help for his daily activities (see paragraph 5 above). Because of his health, in the context of his living arrangements, the applicant was found to need constant support (see paragraphs 6, 7 and 8 above). The domestic authorities were thus called to make assessments which impacted on the applicant’s personal autonomy and dignity, and thus on his enjoyment of his right to respect for private life as guaranteed under Article 8 § 1 of the Convention (see, mutatis mutandis, Pretty, cited above, §§ 61 and 67; McDonald, § 47; and Pentiacova and Others v. Moldova (dec.), no. 14462/03, ECHR 2005 ‑ I). 35. Therefore, the Court considers that the refusal to classify the applicant’s condition as severe necessitating a personal assistant was capable of having an impact on his enjoyment of his right to respect for private life as guaranteed under Article 8 § 1 of the Convention. Consequently, Article 8 is applicable to the facts of the present case. Other grounds for inadmissibility 36. The Court further notes that this complaint is neither manifestly ill ‑ founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. MeritsThe parties’ submissions The parties’ submissions The parties’ submissions (a) The applicant 37. The applicant argued that the domestic authorities had failed to undertake a complex evaluation of his case, assessing all his medical conditions and social difficulties taken together, as required by law. (b) The Government 38. The Government replied that the evaluation of the degree of disability was a complex process which had been undertaken by the authorities in the applicant’s case in compliance with the applicable law and standards: it had been based on evaluations of his medical and psychological situation, the social context, the educational and professional context, and his abilities and degree of dependency. The authorities had thus made a global assessment of the applicant’s personal and social situation. 39. Furthermore, the domestic proceedings had been thorough, all elements of the file had been examined, and the final decision had been based on a direct and global examination of the applicant’s personal situation. As a matter of subsidiarity, the Court should not call into question the findings of the domestic courts. The Court’s assessment (a) General principles 40. 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 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. 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 which has to be struck between the competing interests; and in both contexts the State enjoys a certain margin of appreciation (see Evans v. the United Kingdom [GC], no. 6339/05, § 75, ECHR 2007 ‑ I). 41. The Court has previously considered a number of cases concerning funding for care and medical treatment as falling within the sphere of possible positive obligations because the applicants complained in substance not of action but of a lack of action by the respondent States (see, for example, Sentges v. the Netherlands (dec.), no. 27677/02, 8 July 2003, and Pentiacova and Others, cited above). Those cases concerned the refusal by the State to provide funding for medical equipment and/or treatment. As the present case also ultimately concerns a refusal to grant the applicant the right to adequate support (as a consequence of his medical condition allegedly being wrongly classified, see paragraphs 10, 12 and 13 above), the Court is prepared to approach it as one involving the State’s positive obligations towards ensuring the applicant’s right to respect for his private life (contrast McDonald, cited above, § 48, which the Court approached from the standpoint of an interference with the right at stake, in so far as it concerned withdrawal of a pre-existing benefit). 42. The Court reiterates that a wide margin is usually allowed to the State under the Convention in issues of general policy, including social, economic, and healthcare policies (see, for instance, McDonald, cited above, § 54, with further references). However, if a restriction on fundamental rights applies to a particularly vulnerable group in society that has suffered considerable discrimination in the past, such as persons with disabilities, or elderly dependent people, then the State’s margin of appreciation is substantially narrower and it must have very weighty reasons for the restrictions in question (see Guberina v. Croatia, no. 23682/13, § 73, 22 March 2016, in the context of discrimination of a physically disabled child; Alajos Kiss v. Hungary, no. 38832/06, § 42, 20 May 2010, in the context of the restriction of a mentally disabled person’s right to vote; and Cînța v. Romania, no. 3891/19, § 41, 18 February 2020, in the context of the restriction of a mentally ill parent’s right to contact with his child). (b) Application of those principles to the facts of the present case 43. The Court notes at the outset that the Disability Act calls for the protection of people with disabilities in the light of the guiding principles enshrined in that law, including freedom of choice, social inclusion and respect for the specific needs of the individuals concerned. The level of protection afforded is based on a complex and personalised evaluation to establish an individual’s level of disability. That assessment must rely not only on medical data but also on other indicators of the individual’s degree of autonomy (or lack thereof), assessed in the light of his or her living conditions (see paragraphs 14 and 16 to 19 above). 44. Moreover, the CRPD, to which the respondent State is party, recognises people with disabilities as full subjects of rights and as rights holders (see paragraph 23 above). The CRPD encourages respect for dignity, individual autonomy and independence. 45. The principles reflected in Articles 19, 20 and 28 of the CRPD are of particular relevance to the present case. The respondent State, as a party to that Convention, has recognised the equal rights of all persons with disabilities and their right to an adequate standard of living and social protection, and has committed itself to take effective and appropriate measures to help persons with disabilities to live independently and be included in the community and to ensure their personal mobility (see paragraph 23 above). 46. On the basis of the domestic requirements, social services assessed that the applicant was in a state of total dependency and required a personal assistant in order to meet his basic needs (see paragraphs 6 to 8 above). The Commission classified the applicant’s condition as a medium-level disability (see paragraph 10 above). In other words, it estimated that the applicant was able to manage his daily activities without the help of a personal assistant. This assessment was also shared by the Court of Appeal, which was the final domestic court to examine the merits of the case and the first to deny the applicant’s claim (see paragraph 13 above). The Court cannot but observe that those findings stand in stark contrast to the applicant’s particular situation as explained in detail in the report of 25 September 2017 (see paragraph 8 above). In this context, it observes that the option of granting the applicant the support of a personal assistant was provided by law (see paragraphs 15 to 19 above). 47. In the light of the principle of subsidiarity, it is not for the Court to substitute its views for those of the national authorities and to interpret and apply the domestic law (see, mutatis mutandis, Z v. Finland, 25 February 1997, § 98, Reports of Judgments and Decisions 1997 ‑ I, and Glor v. Switzerland, no. 13444/04, § 91, ECHR 2009). The domestic courts, however, to whom that task falls, must interpret the domestic law in a manner which is compliant with the States’ obligations under the Convention. 48. In this connection, the Court cannot but note that the Commission and the Court of Appeal focused their assessment on the applicant’s principal medical condition, that is, the partial amputation of his leg (see paragraph 13 above), while nevertheless at least acknowledging the severity of his condition and the lack of support (see, notably, paragraph 13 in fine, above). In his claims before the authorities, the applicant raised arguments related to his broader situation, both medical and social, and provided evidence to support his action (see paragraphs 9 and 11 above). In the Court’s view, those arguments were specific, relevant and important, and the Government did not argue otherwise. However, neither the Commission, when issuing the certificate of 20 December 2018 (see paragraph 10 above), nor the Court of Appeal, in its final decision of 22 May 2019 (see paragraph 13 above), explicitly engaged with them. 49. In particular, the applicant’s right to autonomy and respect for his dignity do not seem to have been taken into account in the domestic assessments in question (the Commission’s certificate or the Court of Appeal’s decision). His living conditions and the lack of a support network – provided either by neighbours or by his family – were not mentioned in those decisions either. Moreover, the authorities did not take into account the applicant’s age or the fact that he had lost his leg at the age of eighty-five (see paragraph 5 above). The implications that such a drastic change must have had on the life of an old person were not referred to in the domestic assessments either. Nothing in the impugned decisions explained the apparent discrepancies between the applicant’s particular situation of a lack of autonomy and support, and the finding that he was not entitled, under the domestic law, to a personal assistant. As a consequence of those decisions, the applicant was left to fend for himself and the authorities did not offer any alternative practical arrangements to ensure him the constant support he needed. 50. From this standpoint, the present case differs from the situation in Sentges and Pentiacova and Others (both cited above), which both concerned the State’s refusal to provide funding for additional medical equipment and/or treatment, even though support and treatment were already available free of charge to the applicants. Those cases, declared inadmissible by the Court, did not concern a complete loss of autonomy such as that experienced by the applicant in the present case. The issue at stake in the present case is not a choice between basic care or additional, more expensive care – which, being a matter of allocation of limited State resources, falls within the State’s margin of appreciation (see paragraph 42 above and Pentiacova and Others, cited above) – but rather about ensuring the applicant the appropriate level of care and dignity, as provided for by law and its interpretation in the light of its aims and principles (see paragraphs 15 to 19 above). 51. Bearing in mind what was at stake for the applicant, as well as his overall vulnerability – which required enhanced protection from the authorities (see paragraph 42 above) – the Court must be convinced that the State struck a fair balance between the competing public and private interests at stake. 52. Having regard to all the above considerations, and notwithstanding its subsidiary role and the respondent State’s margin of appreciation, the Court considers that the domestic authorities did not do what was reasonable in the circumstances of the case to ensure the applicant, an elderly disabled person, effective protection of his right to respect for his private life, thus failing to strike the fair balance required by Article 8. 53. For these reasons, the Court concludes that there has been a violation of Article 8 of the Convention. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 54. The applicant complained that the domestic proceedings had taken too long and that in delaying the examination of his action, the domestic court had failed to take into account his age and the difficulties he encountered in his daily life. He relied on Article 6 of the Convention, which reads as follows, in so far as relevant: “In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...” 55. The Government argued that the applicant had failed to exhaust the available domestic remedies, in so far as he had not used the compensatory remedy provided by the Civil Code. 56. The applicant argued that because of his age, health issues, and lack of financial resources, he should have been exonerated from making use of the remedy indicated by the Government. 57. The Court has already established that since 22 March 2015 a civil action for damages has constituted an effective domestic remedy for complaints raised by applicants with regard to the length of domestic proceedings (see Brudan v. Romania, no. 75717/14, §§ 86 and 88, 10 April 2018). It has since consistently reaffirmed these findings (see, in particular, George-Laviniu Ghiurău v. Romania, no. 15549/16, § 50, 16 June 2020; Marius Alexandru and Marinela Ștefan v. Romania, no. 78643/11, § 112, 24 March 2020; and Jidic v. Romania, no. 45776/16, §§ 57, 60 ‑ 61, 18 February 2020). The Court has no reason to consider that the applicant’s circumstances, however dire, were such as to exempt him from the obligation to avail himself of that remedy. 58. Accordingly, the Government’s objection of failure to exhaust domestic remedies must be upheld. This complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies. APPLICATION OF ARTICLE 41 OF THE CONVENTION 59. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” Damage 60. The applicant claimed 2,631 Romanian lei (RON) (approximately 530 euros (EUR)) in respect of pecuniary damage, representing the additional sum that he should have received from October 2017 to April 2020 if he had been granted the benefits for a severe disability instead of those for a medium disability. He further requested EUR 50,000 in respect of non ‑ pecuniary damage. 61. The Government argued that the applicant had failed to provide any supporting documents for the claim in respect of pecuniary damage and thus asked the Court to dismiss it. They further argued that the claim in respect of non-pecuniary damage was excessive and that the finding of a violation should constitute sufficient just satisfaction. 62. Having regard to the nature of the violation found and making its assessment on an equitable basis, the Court awards the applicant’s son EUR 8,000 in respect of pecuniary and non ‑ pecuniary damage combined, plus any tax that may be chargeable. Costs and expenses 63. The applicant also claimed RON 1,482 (approximately EUR 300) for the costs and expenses incurred before the domestic courts and the Court, representing lawyer’s fees and postal costs. He submitted supporting bills. 64. The Government contested the claims. 65. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 300 covering costs under all heads, plus any tax that may be chargeable to the applicant’s son. Default interest 66. 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 Romanian authorities did not do what was reasonable in the circumstances of the case to ensure the applicant, an older disabled person, effective protection of his right to respect for his private life, thus failing to strike the fair balance required by Article 8. The Court noted, in particular, that the applicant’s right to autonomy and respect for his dignity did not seem to have been taken into account in the domestic assessments in question. His living conditions and the lack of a support network were not mentioned in those decisions either. Moreover, the authorities did not take into account the applicant’s age or the fact that he had lost his leg at the age of eighty-five. The implications that such a drastic change must have had on the life of an old person were not referred to in the domestic assessments either. As a consequence of those decisions, the applicant had been left to fend for himself and the authorities did not offer any alternative practical arrangements to ensure him the constant support he needed. |
333 | Demonstrators | II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE A. International legal documents 1. United Nations legal sources 190. The United Nations Committee against Torture issued General Comment No. 3 (2012) on the Implementation by States parties of Article 14 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the relevant parts of which read as follows: “ Obstacles to the Right to Redress 37. A crucial component of the right to redress is the clear acknowledgement by the responsible State party that the reparative measures provided or awarded to a victim are for violations of the Convention, by action or omission. The Committee is therefore of the view that a State party may not implement development measures or provide humanitarian assistance as a substitute for redress for victims of torture or ill-treatment. The failure of a State party to provide the individual victim of torture with redress may not be justified by invoking a State ’ s level of development. The Committee reminds that change of government as well as successor states still have the obligations to guarantee access to the right of redress. 38. States parties to the Convention have an obligation to ensure that the right to redress is effective. Specific obstacles that impede the enjoyment of the right to redress and prevent effective implementation of article 14 include, but are not limited to: inadequate national legislation, discrimination in accessing complaints and investigation mechanisms and procedures for remedy and redress; inadequate measures to secure the custody of alleged perpetrators, state secrecy laws, evidential burdens and procedural requirements that interfere with the determination of the right to redress; statutes of limitations, amnesties and immunities; the failure to provide sufficient legal aid and protection measures for victims and witnesses; as well associated stigma, and the physical, psychological and other related effects of torture and ill-treatment. In addition, the failure of a State party to execute judgments providing reparative measures for a victim of torture, handed down by either national, international or regional courts, constitute a significant impediment to the right to redress. States parties should develop coordinated mechanisms to enable victims to execute judgments across State lines, including recognizing the validity of court orders from other States parties and assisting in locating the assets of perpetrators. 39. With regard to the obligations in article 14, States parties shall ensure both de jure and de facto access to timely and effective redress mechanisms for members of groups marginalized and/or made vulnerable, avoid measures that impede the ability of members of such groups to seek and obtain redress, and address formal or informal obstacles that they may face in obtaining redress. These may include, for example, inadequate judicial or other procedures for quantifying damages which may have a negative disparate impact on such individuals in accessing or keeping money. As the Committee has emphasized in its General Comment No. 2, “gender is a key factor. Being female intersects with other identifying characteristics or status of the person ... to determine the ways that women and girls are subject to or at risk of torture or ill-treatment”. States parties shall ensure due attention to gender in providing all the elements cited above in the process of ensuring that everybody, in particular members of groups made vulnerable, including LGBT must be treated fairly and equally and obtain fair and adequate compensation, rehabilitation and other reparative measures which respond to their specific needs 40. On account of the continuous nature of the effects of torture, statutes of limitations should not be applicable as these deprive victims of the redress, compensation, and rehabilitation due to them. For many victims, passage of time does not attenuate the harm and in some cases the harm may increase as a result of post-traumatic stress that requires medical, psychological and social support, which is often inaccessible to those whom have not received redress. States parties shall ensure that all victims of torture or ill-treatment, regardless of when the violation occurred or whether it was carried out by or with the acquiescence of a former regime, are able to access their rights to remedy and to obtain redress ... ” 2. Case-law of the Inter-American Commission of Human Rights and of the Inter-American Court of Human Rights 191. International case-law provides examples of cases where the alleged victims of mass violations of fundamental rights, such as the right to life and the right not to be subjected to ill-treatment, have been authorised to wait many years before bringing proceedings at national level and subsequently applying to the international courts, although the admissibility criteria for their applications, with regard to exhaustion of domestic remedies and time-limits for submitting complaints, were similar to those provided for by the Convention (see, inter alia, Inter-American Commission on Human Rights, Community of Rio Negro of the Maya Indigenous People and its Members v. Guatemala, report no. 13/2008 of 5 March 2008, application no. 844/05; Inter-American Court of Human Rights (“ IACtHR ”), “ Las Dos Erres ” Massacre v. Guatemala, 24 November 2009 and IACtHR, and García Lucero et al. v. Chile, 28 August 2013 ). 192. The relevant parts of the first case cited above ( Community of Rio Negro of the Maya Indigenous People and its Members, §§ 88-89) read as follows: “The rule of a reasonable time for filing petitions with the inter-American human rights system must be analyzed in each case, mindful of the activity of the victims ’ next-of-kin to seek justice, the conduct of the state, and the situation and context in which the alleged violation occurred. Therefore, in view of the context and characteristics of the instant case, as well as of the fact that several investigations and judicial proceedings are still pending, the Commission considers that the petition was presented within a reasonable time, and that the admissibility requirement referring to the time for submission has been met.” B. Provisions concerning the statutory limitation of criminal liability 193. Article 121 of the Criminal Code, in force at the material time, is worded as follows: “ The statutory limitation of criminal liability does not apply to crimes against peace and humanity. ” 194. Article 122, in force at the material time, governs the statutory limitation periods in respect of criminal liability. The relevant parts are worded as follows: “ Criminal liability shall be statute-barred after : ( a) fifteen years, where the law provides for a maximum sentence of life imprisonment or fifteen years ’ imprisonment for the offence committed; ( b) ten years, where the law provides for a maximum sentence of more than ten years ’ and less than fifteen years ’ imprisonment for the offence committed; ( c) eight years, where the law provides for a maximum sentence of more than five years ’ and less than ten years ’ imprisonment; ( d) five years, where the law provides for a maximum sentence of more than one year ’ s and less than five years ’ imprisonment for the offence committed; ( e) three years, where the law provides for a maximum sentence not exceeding one year ’ s imprisonment or a fine for the offence committed. These limitation periods shall start to run from the date on which the offence was committed ...” 195. Article 123 lays down a ground for interrupting the limitation period, namely the carrying out of any act that, under the law, must be notified to the accused. 196. Article 124, as in force at the material time, governs the special limitation period. The relevant parts are worded as follows : “ Criminal liability shall be time-barred regardless of how many interruptions have occurred, if the time-limit provided for in Article 122 is exceeded by half of the period in question.” C. Article 358 of the Criminal Code and case-law concerning its application 197. Article 358 of the Criminal Code read as follows: Inhuman treatment ( Tratamentele neomenoase ) “ 1. The fact of inflicting inhuman treatment on wounded or ill persons, on civilian health personnel or members of the Red Cross or other similar organisations, on the shipwrecked, on prisoners of war and, in general, on any other person who has fallen into enemy hands ( şi în general a oricărei persoane căzute sub puterea adversarului ), or of subjecting them to medical or scientific experiments which are not justified by medical treatment administered for their benefit, shall be punishable by a prison sentence of between five and twenty years and the deprivation of certain rights. 2. The fact of committing the following acts against the persons mentioned in the previous paragraph shall be punishable by the same penalty: (a) forcible conscription in the enemy ’ s armed forces; (b) hostage-taking; (c) deportation; (d) forcible transfer ( dislocarea ) or deprivation of liberty without a legal basis; (e) conviction or execution, without prior judgment by a court established by law in compliance with the basic requirements of due process as provided for by law. 3. The torture, mutilation or extermination of the persons mentioned in the first paragraph shall be punishable by life imprisonment or a prison sentence of between fifteen and twenty-five years and the deprivation of certain rights. 4. Where the offences punishable under this Article are committed in wartime, the applicable penalty shall be life imprisonment.” 198. By judgment no. 2579, delivered on 7 July 2009, the High Court of Cassation and Justice upheld a decision on the applicability of Article 358 of the Criminal Code – a provision which penalises inhuman treatment – adopted by the military court of appeal in a case concerning the arrest and death in prison in 1948 of an opponent of the totalitarian regime which had then just been established in Romania. The relevant passages of that judgment read as follows : “ By a judgment of 28 January 2009, the Military Court of Appeal decided ... to allow the appeal by the appellant ... against the decision ... not to bring a prosecution, issued in respect of D. Z. and the staff of the Medical Service of the Ministry of the Interior ( in 1948) with regard to the crime of inhuman treatment, penalised by Article 358 of the Criminal Code ... ... the case was sent to the Military Prosecutor ’ s Office at the Military Court of Appeal with a view to the opening of criminal proceedings ( în vederea începerii urmăririi penale ) for the reasons, facts and circumstances established by means of the evidence set out in the judgment ... In so ruling, the Court of Appeal noted that : ... Relying on the definition of inhuman treatment given by the European Court [of Human Rights], the High Court notes in the instant case that, in 1948, the period in which the events coming under Article 358 of the Criminal Code were committed, there existed a situation of conflict – a precondition [for this crime to be established] – between the authorities of the Communist State, who not only tolerated but even authorised “State agents” to behave like genuine torturers, and the victims of this regime of physical and psychological repression. In those circumstances, there is nothing to prevent the accused from being the subject of an investigation in relation to this offence. The actus reus of the offence of inhuman treatment as applicable in this case consists in subjecting injured or ill persons to inhuman treatment, that is, treatment which is difficult to endure physically and is humiliating. In consequence, the Military Court of Appeal was correct in ordering that the case be sent back to the prosecutor ’ s office so that proceedings could be brought, including in respect of this crime, the respondents Z. and D. having ordered the arrest of D.A. on 21 April 1948 on the charge of undermining State security, based on an anonymous denunciation and in the absence of any evidence that that offence had been committed. ” THE LAW I. ALLEGED VIOLATION OF ARTICLES 2 AND 3 OF THE CONVENTION 199. Mrs Anca Mocanu and Mr Marin Stoica alleged that the respondent State had failed in its obligations under the procedural aspect of Articles 2 and 3 of the Convention. They alleged that those provisions required the State to conduct an effective, impartial and thorough investigation capable of leading to the identification and punishment of those responsible for the armed repression of the demonstrations of 13 and 14 June 1990, in the course of which Mr Mocanu, the first applicant ’ s husband, was killed by gunfire and the second applicant was subjected to ill ‑ treatment. The relevant part of Article 2 provides : “1. Everyone ’ s right to life shall be protected by law. No one shall be deprived of his life intentionally ... ” Article 3 provides : “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. The Court ’ s jurisdiction ratione temporis 200. The Court notes that the respondent Government made no plea before the Grand Chamber as to the Court ’ s lack of jurisdiction ratione temporis. However, they submitted that the Court could examine the complaints brought before it only in so far as they related to the period after 20 June 1994, the date on which the Convention came into force in respect of Romania. 201. The Court reiterates that it has to satisfy itself that it has jurisdiction in any case brought before it, and is therefore obliged to examine the question of its jurisdiction at every stage of the proceedings even where no objection has been raised in this respect ( see Blečić v. Croatia [GC], no. 59532/00, § 67, ECHR 2006 ‑ III). 1. The Chamber judgment 202. The Chamber held that the procedural obligation to conduct an effective investigation arising out of Articles 2 and 3 of the Convention had evolved into a separate and autonomous duty which could be considered capable of binding the State even when the infringement of life or of personal integrity occurred before the entry into force of the Convention with regard to that State. In so ruling, it reiterated the principles outlined in the Šilih v. Slovenia judgment ([GC], no. 71463/01, §§ 159-63, 9 April 2009) and subsequently applied in cases brought against Romania in which the events of December 1989 were in issue ( see Agache and Others v. Romania, no. 2712/02, §§ 70-73, 20 October 2009; Şandru and Others v. Romania, no. 22465/03, § 59, 8 December 2009; and Association “ 21 December 1989 ” and Others v. Romania, nos. 33810/07 and 18817/08, §§ 114-18, 24 May 2011 ). 203. It also considered that, in order for this procedural obligation to be applicable, it must be established that a significant proportion of the procedural steps were or ought to have been implemented following ratification of the Convention by the country concerned. Applying those principles in this case, the Chamber noted that the criminal proceedings concerning the violent suppression of the demonstrations of June 1990 had been instituted in 1990, that they had continued after 20 June 1994 and that a significant proportion of the procedural measures had been carried out after that date. 204. The Chamber therefore declared that it had jurisdiction ratione temporis to examine the allegation of a procedural violation of Articles 2 and 3 of the Convention, dismissing the objection which had been raised by the Government in this connection with regard to Mr Stoica ’ s application alone. 2. The Court ’ s assessment 205. In Janowiec and Others v. Russia ([GC], nos. 55508/07 and 29520/09, §§ 128-51, ECHR 2013), the Court provided additional clarifications on the temporal limitations of its jurisdiction – previously defined in the Šilih judgment ( cited above, §§ 162-63) – with regard to the procedural obligation to investigate deaths or ill-treatment which occurred prior to the entry into force of the Convention in respect of the respondent State ( the “critical date ” ). 206. It found, in essence, that this temporal jurisdiction was strictly limited to procedural acts which were or ought to have been implemented after the entry into force of the Convention in respect of the respondent State, and that it was subject to the existence of a genuine connection between the event giving rise to the procedural obligation under Articles 2 and 3 and the entry into force of the Convention. It added that such a connection was primarily defined by the temporal proximity between the triggering event and the critical date, which could be separated only by a reasonably short lapse of time that should not normally exceed ten years ( see Janowiec and Others, cited above, § 146); at the same time, the Court specified that this time period was not in itself decisive. In this regard, it indicated that this connection could be established only if much of the investigation – that is, the undertaking of a significant proportion of the procedural steps to determine the cause of death and hold those responsible to account – took place or ought to have taken place in the period following the entry into force of the Convention ( see Janowiec and Others, cited above, § 147). 207. In the instant case, the Court reiterates that the complaints in respect of the procedural aspect of Articles 2 and 3 of the Convention concern the investigation into the armed repression conducted on 13 and 14 June 1990 against the anti-government demonstrations, and that this repression cost the life of the first applicant ’ s husband and interfered with the second applicant ’ s physical integrity. That investigation began in 1990, shortly after those events, giving rise, inter alia, to investigative measures, the primary aim of which was to identify the victims who had been killed by gunfire, including the first applicant ’ s husband. 208. It should thus be noted that four years passed between the triggering event and the Convention ’ s entry into force in respect of Romania, on 20 June 1994. This lapse of time is relatively short. It is less than ten years and less than the time periods in issue in similar cases examined by the Court ( see Şandru and Others, cited above, §§ 55-59; Paçacı and Others v. Turkey, no. 3064/07, §§ 63-66, 8 November 2011; and Jularić v. Croatia, no. 20106/06, §§ 45-51, 20 January 2011). 209. Prior to the critical date, few procedural acts were carried out in the context of the investigation. It was after that date, and especially from 1997 onwards, that the investigation took shape through the joinder of dozens of cases which had previously been dispersed and the bringing of charges against senior military and civilian figures. Equally, the prosecutors ’ decisions to commit for trial and judicial decisions concerning this case were all issued after the critical date ( see, inter alia, the decision to commit for trial of 18 May 2000, the Supreme Court of Justice ’ s judgment of 30 June 2003, the decision to commit for trial of 27 July 2007 and the High Court of Cassation and Justice ’ s judgments of 17 December 2007 and 9 March 2011). 210. In other words, the majority of the proceedings and the most important procedural measures were carried out after the critical date. 211. Consequently, the Court finds that it has jurisdiction ratione temporis to examine the complaints raised by Mrs Mocanu and Mr Stoica under the procedural aspect of Articles 2 and 3 of the Convention, in so far as those complaints relate to the criminal investigation conducted in the present case after the entry into force of the Convention in respect of Romania. B. Objection of failure to exhaust domestic remedies 212. The Government, alleging that the applicants had not brought an action in tort against the State, repeated the objection of failure to exhaust domestic remedies submitted by them to the Chamber in respect both of the complaint lodged by Mrs Anca Mocanu under Article 2 and that lodged by Mr Marin Stoica under Article 3. 1. The Chamber judgment 213. After pointing out that the Court had already dismissed a similar objection in its Association “ 21 December 1989 ” and Others judgment ( cited above, §§ 119-125) and that the State ’ s obligations under Articles 2 and 3 of the Convention could not be satisfied merely by an award of damages, the Chamber also dismissed the objection raised by the Government in this case. In addition, it considered that a single final judgment by a first-instance court did not demonstrate with sufficient certainty the existence of effective and accessible domestic remedies for complaints similar to those of the applicants. 2. The Government ’ s submissions 214. According to the Government, an action for damages based on the provisions of Articles 998 and 999 of the former Civil Code, and seeking to establish the State ’ s civil liability in tort on account of the lack of an effective investigation into the events of June 1990, would have enabled the two applicants to obtain fair compensation for the alleged damage and acknowledgement of a violation of the rights guaranteed by the Convention. 215. In support of that argument, the Government indicated that the domestic courts had found in favour of other persons who were in similar situations to the applicants. In this connection, they referred to the decision which they had already mentioned in their observations before the Chamber. 216. The decision in question, which the Government had cited in order to demonstrate the effectiveness of this remedy, was a judgment of 12 June 2008 by which the Bucharest Fifth District Court had ordered the Ministry of Finance to pay compensation to a claimant for the shortcomings in an investigation opened following the repression of the demonstrations held in Bucharest in December 1989. The Government had indicated before the Chamber that the fact that they were submitting only one example of a judicial decision of this type could be explained by the absence of other proceedings for the same purpose. 217. The Government further referred to the judgment in Floarea Pop v. Romania (no. 63101/00, 6 April 2010 ), while distinguishing the present case from those of Branko Tomašić and Others v. Croatia (no. 46598/06, 15 January 2009 ) and Kats and Others v. Ukraine (no. 29971/04, 18 December 2008). They alleged that, contrary to the remedies in issue in these two cases, the remedy in issue here would have provided satisfaction to the applicants in respect of the procedural aspect of Articles 2 and 3 also, since the domestic courts had jurisdiction to examine possible breaches in that regard. 3. The applicants ’ submissions 218. In his submissions to the Grand Chamber, Mr Marin Stoica alleged that an action in tort did not constitute an adequate remedy in that it could not oblige those responsible for the investigation to establish what had happened, and that the prospects of success for such an action were purely hypothetical. In consequence, the exhaustion of this remedy had not been necessary. 219. Mrs Anca Mocanu made no comment on this point before the Grand Chamber. In her observations before the Chamber, she had submitted that the decision cited by the Government did not warrant the conclusion that this was an effective remedy, since the court concerned had not obliged the relevant authorities to expedite the criminal proceedings in question. In addition, she alleged that the case had been generated by the Government for the purposes in hand, namely the proceedings before the Court. She had added that nothing could dispense the State from its obligation to conduct an effective investigation as required by Article 2 of the Convention. 4. The Court ’ s assessment ( a) General principles 220. It is a fundamental feature of the machinery of protection established by the Convention that it is subsidiary to the national systems safeguarding human rights. This Court is concerned with the supervision of the implementation by Contracting States of their obligations under the Convention. It should not take on the role of Contracting States, whose responsibility it is to ensure that the fundamental rights and freedoms enshrined therein are respected and protected on a domestic level. The rule of exhaustion of domestic remedies is based on the assumption – reflected in Article 13 of the Convention, with which it has close affinity – that there is an effective remedy available in respect of the alleged violation. The rule is therefore an indispensable part of the functioning of this system of protection ( Vučković and Others v. Serbia [GC], no. 17153/11, § 69, 25 March 2014). 221. 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 many authorities, Akdivar and Others v. Turkey, 16 September 1996, § 65, Reports 1996 ‑ IV; and Vučković and Others, cited above, § 70). 222. 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 Akdivar and Others, cited above, § 66; and Vučković and Others, cited above, § 71). To be effective, a remedy must be capable of directly redressing the impugned state of affairs and must offer reasonable prospects of success (see Balogh v. Hungary, no. 47940/99, § 30, 20 July 2004; and Sejdovic v. Italy [GC], no. 56581/00, § 46, ECHR 2006 ‑ II). 223. On the contrary, there is no obligation to have recourse to remedies which are inadequate or ineffective (see Akdivar and Others, cited above, § 67, and Vučković and Others, cited above, § 73 ). However, the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust that avenue of redress (see Akdivar and Others, cited above, § 71; Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 70, 17 September 2009; and Vučković and Others, cited above, § 74). 224. The Court has, however, also frequently underlined the need to apply the exhaustion rule with some degree of flexibility and without excessive formalism (see Ringeisen v. Austria, 16 July 1971, § 89, Series A no. 13; Akdivar and Others, cited above, § 69; and Vučković and Others, cited above, § 76). The Court has therefore specified 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 and without excessive formalism. It has therefore recognised that the rule of exhaustion is not capable of being applied automatically (see Akdivar and Others, cited above, § 69; and Kurić and Others v. Slovenia [GC], no. 26828/06, § 286, ECHR 2012 (extracts) ). 225. As regards the burden of proof, it is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one, available in theory and in practice at the relevant time. Once this burden has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted, or was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances absolving him or her from this requirement (see Akdivar and Others, cited above, § 68; Demopoulos and Others v. Turkey ( dec. ) [GC], nos. 46113/99 et al, § 69, ECHR 2010; McFarlane v. Ireland [GC], no. 31333/06, § 107, 10 September 2010; and Vučković and Others, cited above, § 77). 226. In those circumstances, in ruling on the issue of whether an applicant has met this admissibility criterion having regard to the specific circumstances of his or her case, the Court must first identify the act of the respondent State ’ s authorities complained of by the applicant ( see Haralambie v. Romania, no. 21737/03, § 70, 27 October 2009). 227. In this connection, the Court has held that, in the area of unlawful use of force by State agents – and not mere fault, omission or negligence –, civil or administrative proceedings aimed solely at awarding damages, rather than ensuring the identification and punishment of those responsible, were not adequate and effective remedies capable of providing redress for complaints based on the substantive aspect of Articles 2 and 3 of the Convention ( see, inter alia, Yaşa v. Turkey, 2 September 1998, § 74, Reports 1998 ‑ VI). 228. Lastly, in several cases lodged against Romania, the Court has dismissed similar objections raised by the Government based on the same final judgment dating from 2008 that they rely upon in the present case ( see Association “ 21 December 1989 ” and Others, cited above, §§ 119-125; Lăpuşan and Others v. Romania, nos. 29007/06, 30552/06, 31323/06, 31920/06, 34485/06, 38960/06, 38996/06, 39027/06 and 39067/06, § 69, 8 March 2011; and Pastor and Ţiclete v. Romania, nos. 30911/06 and 40967/06, § 58, 19 April 2011 ). 229. In the judgments in question, the Court dismissed the objections of non-exhaustion on the ground that the availability of the remedy referred to by the Government was not certain in practice. Indeed, the Government had been able to submit only one example of a final judgment allowing an action engaging the State ’ s civil liability on account of the failure to conduct an effective investigation into the deaths by shooting committed in December 1989. ( b) Application of the above principles to the present case 230. In the present case, the Court notes that Mrs Anca Mocanu and Mr Marin Stoica alleged that the State had failed to comply with the obligations imposed on it under the procedural aspect of Articles 2 and 3 of the Convention to conduct an effective investigation capable of leading to the identification and punishment of those responsible for the armed repression of the demonstrations of 13 and 14 June 1990, in the course of which Mr Velicu ‑ Valentin Mocanu, the first applicant ’ s husband, was killed by gunfire and the second applicant was subjected to ill-treatment. 231. In this connection, it notes that the investigation concerning the first applicant has been pending before the domestic authorities and courts for more than twenty-three years, while the branch of the investigation concerning the second applicant was terminated by a judgment delivered on 9 March 2011. 232. However, the Government have not specified in what way an action in tort against the State in respect of the failure to conduct an effective investigation into the events of June 1990, the subject matter of the present applications, could have provided redress for the applicants, by ensuring the effectiveness of that investigation, closing the alleged gaps in it, or, at the very least, expediting it. 233. The Court notes that the only judicial decision produced by the Government merely awarded damages to an injured party concerned by the investigation into the events of December 1989 which was uncompleted at the time that that decision was delivered ( see Association “ 21 December 1989 ” and Others, cited above, §§ 119 and 136). 234. The Contracting Parties ’ obligation under Articles 2 and 3 of the Convention to conduct an investigation capable of leading to the identification and punishment of those responsible in cases of assault could be rendered illusory if, in respect of complaints under those Articles, an applicant were required to bring an action leading only to an award of damages ( see Isayeva and Others v. Russia, nos. 57947/00, 57948/00 and 57949/00, § 149, 24 February 2005). 235. For the reasons set out above, the Court considers that the remedy put forward by the Government is not sufficient, in that it is not capable of providing redress for the situation complained of by the applicants. 236. It follows that the preliminary objection is unfounded and must therefore be dismissed. C. The allegation that Mr Stoica ’ s complaint was lodged out of time 237. Without explicitly reiterating the preliminary objection that they had raised before the Chamber, the Government alleged, with regard to the complaint lodged under Article 3 by Mr Stoica, that he ought to have displayed diligence, firstly in submitting his criminal complaint to the domestic authorities, and secondly in introducing his application before the Court. 1. The Chamber judgment 238. The Chamber considered that this second objection – alleging that Mr Stoica had lodged his criminal complaint with the relevant authorities out of time – should be joined to the examination of the merits of the complaint alleging a violation of the procedural aspect of Article 3 of the Convention, and declared the complaint admissible. 2. The Government ’ s submissions 239. The Government indicated that the criminal investigation into the violent acts committed on 13 and 14 June 1990 had been opened in 1990 and observed that, in spite of the opening of this investigation and the difficulties encountered by the authorities in identifying all the victims, the applicant did not join the proceedings until 2001. 240. In this regard, the Government considered that it was unacceptable for a presumed victim to benefit from steps taken by other persons to obtain the opening of an investigation without calling into question the fundamental principle of the Convention mechanism, namely exhaustion of domestic remedies, focused on the individual dimension of the right of petition. 241. Referring to the cases of Toma v. Romania ( ( dec. ), no. 34403/05, 18 September 2012) and Petyo Popov v. Bulgaria (no. 75022/01, 22 January 2009), the Government pointed out that the Court had criticised the conduct of applicants who had failed to bring their complaints concerning violations of Article 3 of the Convention before the domestic prosecuting authorities in due form. 242. In so far as the applicant sought to justify his passivity by an alleged vulnerability which prevented him from joining the investigation proceedings, the Government observed that the violence to which the applicant claimed to have been subjected in June 1990 had required only three to five days of medical care, that he had not been hospitalised for long and that he had not submitted medical certificates attesting to a physical or psychological impairment having a causal link with the events complained of. 243. The Government added that, after 1990, the social and political climate had been favourable to the victims and that the fears referred to by the applicant were accordingly unfounded. In this connection, they submitted that the Court had taken victims ’ vulnerability into account only in extremely critical situations, where the applicants had expressed well-founded fears in the light of the national context. 244. Referring to the cases of Narin v. Turkey (no. 18907/02, 15 December 2009) and Frandes v. Romania ( ( dec. ), no. 35802/05, 17 May 2011), the Government submitted that the Court, called on to assess the diligence shown by parties in applying to it, had considered that applications could be rejected as out of time even in cases concerning continuing situations. The Government considered that this rule applied to the situation of applicants who, like Mr Stoica in the instant case, had delayed excessively or without apparent reason before applying to the Court after realising that the investigation conducted by the authorities was losing effectiveness, or after the point that they ought to have realised this. In their opinion, Mr Stoica ’ s situation was very different from that of the applicants in Er and Others v. Turkey (no. 23016/04, 31 July 2012), as the applicant in the present case had been able at any moment to contact the authorities, who had not attempted to hide the facts or deny the circumstances. 3. The applicant ’ s submissions 245. The applicant explained that he had waited until 18 June 2001 before lodging a criminal complaint with regard to his experiences during the night of 13 to 14 June 1990 on account of the scale of the repression conducted by the authorities at that time, of which he among more than a thousand others had been a victim. He considered that the investigation in issue here did not concern ordinary incidents of unlawful use of force by State agents, but rather mass violations of human rights, orchestrated by the highest State authorities. In this connection, he alleged that, following the events of June 1990, he was in such a state of distress that he had hardly been able to leave his house for three months, for fear of the oppressive authorities, and that his mental and physical health had subsequently deteriorated to such an extent that he had sustained permanent psychological problems. 246. He pleaded that, in such circumstances, only a prompt reaction by the judicial authorities could have reassured him and encouraged him to lodge a complaint. He alleged that no such reaction had been forthcoming until 2000 and submitted that he had lodged a complaint at that point on learning that, for the first time, high-ranking State officials had been charged and committed for trial. 247. He observed that his complaint had not been dismissed as out of time by the national authorities, that it had been joined immediately to the wider investigation file opened into the impugned events, and that it had given rise to investigative acts in his respect without any allegations of passivity being made. 248. He considered that his failure to lodge a complaint before 2001 had not compromised the effectiveness of the investigation in any way. In this respect, he submitted that the authorities could have identified him from the video recordings that the State television service had made of the events which occurred in its own headquarters, or from the medical records drawn up, inter alia, during the night of 13 to 14 June 1990 by the emergency ward in which he was hospitalised. In addition, he noted that the fourth point of the operative provisions in the decision to commit for trial of 18 May 2000 ordered that the investigation be continued into the deprivation of liberty inflicted on 1, 300 persons by servicemen and miners from the morning of 13 June 1990 onwards, and also into the assaults sustained by hundreds of persons during the same period. 249. He claimed to have played a very active part in the investigation from 2001 onwards and to have regularly requested information on progress in the proceedings, submitting as evidence the entries made in the register of the military section of the prosecutor ’ s office at the High Court of Cassation and Justice. 250. Lastly, he considered that lodging a complaint more rapidly would have had no impact on the outcome of that investigation, since the decision not to bring a prosecution, issued on 17 June 2009, also concerned those victims who had had the courage to lodge a complaint prior to 2001. 4. The third party ’ s observations 251. According to the non-governmental organisation Redress, the third-party intervener, the adverse psychological effects of ill-treatment on victims ’ capacity to complain represented a significant obstacle to redress. The reality of this phenomenon had been recognised, inter alia, by the United Nations Committee against Torture ( General Comment No. 3 ( 2012 ), § 38, cited above ). 252. Moreover, the Court had admitted that where abuses were perpetrated by State agents, their psychological effects could be even greater ( Tyrer v. the United Kingdom, 25 April 1978, § 33, Series A no. 26). 253. Scientific research showed that the experience of ill-treatment at the hands of social and political institutions charged with responsibility for ensuring individuals ’ safety and well-being could have particular psychological consequences which could explain a delay in making a complaint, or not making a complaint at all ( they referred, among other sources, to L. Piwowarczyk, A. Moreno, M. Grodin, “ Health Care of Torture Survivors ”, Journal of the American Medical Association, vol. 284 (2000), pp. 539-41). From a psychological perspective, the cause of this attitude was to be found in the shattering of the victims ’ ability to trust others, especially State agents. The victims of State agents felt more vulnerable than those of ordinary criminals, since they had little or no hope that the authorities would investigate their case, a fortiori where the State continued to repress peaceful demonstrations or showed no signs of pursuing an effective investigation ( A. Burnett, M. Peel, “ The Health of Survivors of Torture and Organised Violence ”, British Medical Journal, vol. 322 (2001), pp. 606-09). 254. This research also indicated that victims who did not identify themselves as activists or demonstrators suffered from ill-treatment more greatly, and could even be disproportionally impacted by the violence inflicted. 255. Given the difficult situation of victims, both in terms of their vulnerability and the obstacles to obtaining access to evidence, there was an increased tendency on the part of national courts to take these realities into account and to block limitation periods when agreeing to rule on complaints lodged many years after the events complained of by persons who had been tortured ( District Court of The Hague, Wisah Binti Silan and Others v. the Netherlands, 14 September 2011, §§ 4.15-4.18, Nederlandse Jurisprudentie 2012, no. 578; High Court (England and Wales), Mutua and Others v. The Foreign and Commonwealth Office, 5 October 2012, [2012] EWHC 2678 (QB); and the House of Lords (United Kingdom), A. v. Hoare, 30 January 2008, [2008] UKHL 6, §§ 44-49 ). 5. The Court ’ s assessment 256. The Court notes that the Government referred to the applicant ’ s tardiness in lodging a complaint with the domestic authorities concerning the events at the origin of this application. In this context, they also referred to the duty of diligence on persons wishing to apply to the Court. 257. The Court considers that the issue of the diligence incumbent on the applicant is closely linked to that of any tardiness in lodging a criminal complaint within the domestic legal system. Taken together, these arguments may be regarded as an objection alleging a failure to comply with the six-month time-limit under Article 35 § 1 of the Convention. This objection must therefore now be examined ( see Micu v. Romania, no. 29883/06, § 108, 8 February 2011). ( a) General principles 258. The Court reiterates that the six-month time-limit provided for by Article 35 § 1 of the Convention has a number of aims. Its primary purpose is to maintain legal certainty by ensuring that cases raising issues under the Convention are examined within a reasonable time, and to prevent the authorities and other persons concerned from being kept in a state of uncertainty for a long period of time ( see Sabri Güneş v. Turkey [GC], no. 27396/06, § 39, 29 June 2012; El - Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 135, ECHR 2012; and Bayram and Yıldırım v. Turkey ( dec. ), no. 38587/97, ECHR 2002-III ). That rule marks out the temporal limit of the supervision exercised by the Court and signals, both to individuals and State authorities, the period beyond which such supervision is no longer possible (see Walker v. the United Kingdom ( dec. ), no. 34979/97, ECHR 2000 ‑ I; Sabri Güneş, cited above, § 40; and El - Masri, cited above, § 135). 259. 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, and, where the situation is a continuing one, once that situation ends ( see, among other authorities, Dennis and Others v. the United Kingdom ( dec. ), no. 76573/01, 2 July 2002; Sabri Güneş, cited above, § 54; and El- Masri, cited above, § 136 ). 260. Article 35 § 1 cannot be interpreted in a manner which would require an applicant to seise the Court of his complaint before his position in connection with the matter has been finally settled at the domestic level, otherwise the principle of subsidiarity would be breached. Where an applicant avails himself of an apparently existing remedy and only subsequently becomes aware of circumstances which render the remedy ineffective, it may be appropriate for the purposes of Article 35 § 1 to take the start of the six-month period from the date when the applicant first became or ought to have become aware of those circumstances ( see Edwards v. the United Kingdom ( dec. ), no. 46477/99, 7 June 2001, and El ‑ Masri, cited above, § 136 ). 261. In cases of a continuing situation, the period starts to run afresh each day and it is in general only when that situation ends that the six - month period actually starts to run (see 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, § 159, ECHR - 2009, and Sabri Güneş, cited above, § 54 ). 262. However, not all continuing situations are the same. Where time is of the essence in resolving the issues in a case, there is a burden on the applicant to ensure that his or her claims are raised before the Court with the necessary expedition to ensure that they may be properly, and fairly, resolved ( see Varnava and Others, cited above, § 160). This is particularly true with respect to complaints relating to any obligation under the Convention to investigate certain events. As the passage of time leads to the deterioration of evidence, time has an effect not only on the fulfilment of the State ’ s obligation to investigate but also on the meaningfulness and effectiveness of the Court ’ s own examination of the case. An applicant has to become active once it is clear that no effective investigation will be provided, in other words once it becomes apparent that the respondent State will not fulfil its obligation under the Convention ( see Chiragov and Others v. Armenia ( dec. ) [GC], no. 13216/05, § 136, 14 December 2011, and Sargsyan v. Azerbaijan ( dec. ) [GC], no. 40167/06, § 135, 14 December 2011, both referring to Varnava and Others, cited above, § 161). 263. The Court has already held that, in cases concerning an investigation into ill-treatment, as in those concerning an investigation into the suspicious death of a relative, 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 ( see the decisions in Bulut and Yavuz v. Turkey ( dec. ), no. 73065/01, 28 May 2002; Bayram and Yıldırım, cited above; Frandes, cited above, §§ 18-23; and Atallah v. France ( dec. ), no. 51987/07, 30 August 2011). 264. It follows that the obligation of diligence incumbent on applicants contains two distinct but closely linked aspects: on the one hand, the applicants must contact the domestic authorities promptly concerning progress in the investigation – which implies the need to apply to them with diligence, since any delay risks compromising the effectiveness of the investigation – and, on the other, they must lodge their application promptly with the Court as soon as they become aware or should have become aware that the investigation is not effective ( see Nasirkhayeva v. Russia ( dec. ), no. 1721/07, 31 May 2011; Akhvlediani and Others v. Georgia ( dec. ), nos. 22026/10, 22043/10, 22078/10, 22097/10, 22128/10, 27480/10, 27534/10, 27551/10, 27572/10 and 27583/10, §§ 23-29, 9 April 2013; and Gusar v. the Republic of Moldova and Romania ( dec. ), no. 37204/02, §§ 14-17, 30 April 2013). 265. That being so, the Court reiterates that the first aspect of the duty of diligence – that is, the obligation to apply promptly to the domestic authorities – must be assessed in the light of the circumstances of the case. In this regard, it has held that applicants ’ delay in lodging a complaint is not decisive where the authorities ought to have been aware that an individual could have been subjected to ill-treatment – particularly in the case of assault which occurs in the presence of police officers – as the authorities ’ duty to investigate arises even in the absence of an express complaint ( see Velev v. Bulgaria, no. 43531/08, §§ 59-60, 16 April 2013). Nor does such a delay affect the admissibility of the application where the applicant was in a particularly vulnerable situation, having regard to the complexity of the case and the nature of the alleged human rights violations at stake, and where it was reasonable for the applicant to wait for developments that could have resolved crucial factual or legal issues ( see El - Masri, cited above, § 142 ). 266. With regard to the second aspect of this duty of diligence – that is, the duty on the applicant to lodge an application with the Court as soon as he realises, or ought to have realised, that the investigation is not effective – the Court has stated that the issue of identifying the exact point in time that this stage occurs necessarily depends on the circumstances of the case and that it is difficult to determine it with precision ( see the decision in Nasirkhayeva, cited above ). 267. In establishing the extent of this duty of diligence on applicants who wish to complain about the lack of an effective investigation into deaths or ill-treatment, the Court has been largely guided in recent years by the case-law on the duty of diligence imposed on applicants who complain about the disappearance of individuals in a context of international conflict or state of emergency within a country ( see Varnava and Others, cited above, § 16 5; Yetişen and Others v. Turkey ( dec. ), no. 21099/06, §§ 72-85, 10 July 2012; and Er and Others, cited above, § 52), despite the differences between those two types of situation. 268. Thus, the Court has rejected as out of time applications where there had been excessive or unexplained delay on the part of applicants once they had, or ought to have, become aware that no investigation had been instigated or that the investigation had lapsed into inaction or become ineffective and, in any of those eventualities, there was no immediate, realistic prospect of an effective investigation being provided in the future ( see, inter alia, Narin, cited above, § 51; Aydınlar and Others v. Turkey ( dec. ), no. 3575/05, 9 March 2010; and the decision in Frandes, cited above, §§ 18-23 ). In other words, the Court has considered it indispensable that persons who wish to bring a complaint about the ineffectiveness or lack of such investigation before the Court do not delay unduly in lodging their application. Where there has been a considerable lapse of time, and there have been significant delays and lulls in investigative activity, there will come a time when the relatives must realise that no effective investigation has been, or will be, provided. 269. The Court has held, however, that so long as there is some meaningful contact between relatives and authorities concerning complaints and requests for information, or some indication, or realistic possibility, of progress in investigative measures, considerations of undue delay by the applicants will not generally arise ( see Varnava and Others, cited above, § 165 ). ( b) Application of the above principles to the present case 270. The Court notes that the alleged attack on the applicant at the State television headquarters, in the presence of police officers and servicemen, took place on the night of 13 to 14 June 1990. A criminal investigation was opened shortly afterwards. On 18 June 2001, more than eleven years after the events, the applicant lodged a criminal complaint with a prosecutor at the military section of the prosecutor ’ s office at the Supreme Court of Justice (see paragraph 170 above). On 25 June 2008, more than eighteen years after the events, the applicant lodged his application with the Strasbourg Court. On 17 June 2009 the prosecutor ’ s office at the High Court of Cassation and Justice decided to discontinue the proceedings against the surviving defendants either on the ground that the offences had become statute -barred or that there was no case to answer (see paragraphs 156-62 above). On 9 March 2011 the High Court of Cassation and Justice dismissed the applicant ’ s appeal against that decision (see paragraph 166 above). 271. The Court further notes that, in their objection, the Government criticises the applicant ’ s inactivity from 1990 to 2001. 272. From the point of view of the six-month rule, the Court has to ascertain whether the applicant, at the time of lodging his application with the Court, had been aware, or should have been aware, for more than six months, of the lack of any effective criminal investigation. His inactivity before lodging a criminal complaint at the domestic level is not as such relevant for the assessment of the fulfilment of the six-month requirement. However, if the Court were to conclude that before the applicant petitioned the competent domestic authorities he was already aware, or ought to have been aware, of the lack of any effective criminal investigation, it is obvious that his subsequent application with the Court has a fortiori been lodged out of time (see the decisions in Bayram and Yıldırım, and Bulut and Yavuz, both cited above), unless new evidence or information arose in the meantime which would have given rise to a fresh obligation on the authorities to take further investigative measures (see Brecknell v. the United Kingdom, no. 32457/04, § 71, 27 November 2007, and Gürtekin and Others v. Cyprus ( dec. ), nos. 60441/13, 68206/13 and 68667/13, 11 March 2014 ). 273. Given that he formally lodged his complaint while being interviewed by a prosecutor in the military section of the prosecutor ’ s office at the Supreme Court of Justice, there is evidence that the applicant was keeping track of developments in the criminal investigation prior to 18 June 2001. He justified his reluctance to lodge a complaint by his vulnerability, which was explained not only by the deterioration in his health following the ill-treatment allegedly sustained in June 1990, but also by the feeling of powerlessness which he experienced on account of the large number of victims of the repression conducted by the security forces and the judicial authorities ’ failure to react in a prompt manner, capable of reassuring him and encouraging him to come forward. 274. Like the United Nations Committee against Torture, quoted by the third-party intervener, the Court acknowledges that the psychological effects of ill-treatment inflicted by State agents may also undermine victims ’ capacity to complain about treatment inflicted on them, and may thus constitute a significant impediment to the right to redress of victims of torture and other ill-treatment ( see General Comment No. 3 ( 2012 ), § 38, at paragraph 190 above ). Such factors may have the effect of rendering the victim incapable of taking the necessary steps to bring proceedings against the perpetrator without delay. Accordingly, as the third-party intervener pointed out, these factors are increasingly taken into account at national level, leading to a certain flexibility with regard to the limitation periods applicable to claims for reparation in respect of claims for compensation for personal injury (see paragraph 25 5 above). 275. The Court observes that very few victims of the events of 13 to 15 June 1990 lodged a complaint in the first few years (see paragraph 99 above). It does indeed appear that the majority of them found the courage to lodge a complaint only after the developments in the investigation arising from the decision of 16 September 1998 and the decision to commit for trial of 18 May 2000. The Court can only conclude, having regard to the exceptional circumstances in issue, that the applicant was in a situation in which it was not unreasonable for him to wait for developments that could have resolved crucial factual or legal issues ( see, by contrast, the decision in Akhvlediani and Others, cited above, § 27). Regard being had to the foregoing, the Court considers that the applicant ’ s vulnerability and his feeling of powerlessness, which he shared with numerous other victims who, like him, waited for many years before lodging a complaint, amount to a plausible and acceptable explanation for his inactivity from 1990 to 200 1. 276. The Court also notes that certain other elements – particularly the video recording made by the State television service and the confiscation of identity documents belonging to the applicant and other persons who were held and filmed at the television station – indicate that the authorities knew or could have discovered without any real difficulties at least some of the names of the victims of the abuses committed on 13 June 1990 on the premises of the State television service and the surrounding area, and those committed over the following night, in the presence of the numerous servicemen who were gradually deployed there ( see Velev, cited above, §§ 59-60). Furthermore, the decision of 14 October 1999 and the decision to commit for trial of 18 May 2000 had ordered the investigators to identify all of those victims. 277. Moreover, the Court notes that the decision of 17 June 2009 not to bring a prosecution, upheld by the judgment of the High Court of Cassation and Justice of 9 March 2011, applied to all of the victims. The conclusion adopted with regard to the statutory limitation of criminal liability applied equally to those victims who had lodged complaints in the days following their assault and to those who, like the applicant, had complained at a later date. 278. In those circumstances, it cannot be concluded that Mr Stoica ’ s delay in lodging his complaint was capable of undermining the effectiveness of the investigation ( see, by contrast, the decision in Nasirkhayeva, cited above ). In any event, the applicant ’ s complaint was added to investigation case file no. 75/P/1998, which concerned a large number of victims of the events of 13 to 15 June 1990. The Court also notes that the decision of 29 April 2008, by which the military section of the prosecutor ’ s office stated that it did not have jurisdiction and referred the case to the ordinary criminal section for examination – inter alia – of the charges of inhuman treatment made against the highest-ranking army officers and the State leaders of the time, included the names of more than a thousand victims (see paragraph 14 2 above). Thus, the investigation was undertaken in entirely exceptional circumstances. 279. Moreover, the Court notes that from 2001 onwards, there was meaningful contact between the applicant and the authorities with regard to the former ’ s complaint and his requests for information, which he submitted annually by going to the prosecutor ’ s office in person to enquire about progress in the investigation. In addition, there were tangible indications that the investigation was progressing, particularly the successive decisions to bring charges against high-ranking civilian and military figures and the investigative measures in respect of the applicant, including the two forensic medical examinations which were carried out. 280. Having regard to the developments in the investigation subsequent to 2001, its scope and its complexity, all of which are accepted by the Government, the Court considers that after having lodged his complaint with the competent domestic authorities, the applicant could legitimately have believed that the investigation was effective and could reasonably have awaited its outcome, so long as there was a realistic possibility that the investigative measures were moving forward ( see, mutatis mutandis, Palić v. Bosnia and Herzegovina, no. 4704/04, § 52, 15 February 2011 ). 281. The applicant lodged his application with the Court on 25 June 2008, more than seven years after he had lodged his criminal complaint with the prosecuting authorities. The investigation was still pending at that time, and investigative steps had been taken. For the reasons indicated above ( see paragraph 27 9 ), which remained valid at least until the time when the applicant lodged his application before the Court, he cannot be criticised for having waited too long. 282. Moreover, the Court notes that the final domestic decision in the applicant ’ s case is the above - mentioned judgment of 9 March 2011. 283. 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. D. Alleged violation of Articles 2 and 3 of the Convention 1. The Chamber judgment 284. The Chamber examined separately the merits of the complaints under Articles 2 and 3 of the Convention. It concluded that there had been a violation of the procedural aspect of Article 2 in respect of Mrs Mocanu and that there had been no violation of the procedural aspect of Article 3 of the Convention in respect of Mr Stoica. ( a ) The part of the judgment concerning Mrs Mocanu 285. With regard to Mrs Mocanu, the Chamber noted that the criminal investigation into the unlawful killing of the applicant ’ s husband had been opened in 1990 and that it was still pending more than twenty years later. It concluded that the investigation had not complied with the requirement of promptness. 286. It also noted that in 1994 the case was pending before the military prosecuting authorities, which was not an independent investigative body, and that the shortcomings in the investigation, acknowledged by the national courts themselves, had not subsequently been remedied. 287. It also observed that Mrs Mocanu had been given access to the investigation belatedly, and that she had not been correctly informed about its progress. 288. Further, the Chamber considered that what was at stake in this case – that is, the right of the numerous victims to know what had happened and, by implication, the right to an effective judicial investigation and, where appropriate, compensation – were of such importance for Romanian society that they ought to have prompted the domestic authorities to deal with the case speedily and without unnecessary delay, in order to prevent any appearance of impunity for certain acts. 289. In view of these considerations, the Chamber concluded that there had been a violation of the procedural aspect of Article 2 of the Convention. ( b) The part of the judgment concerning Mr Marin Stoica 290. With regard to Mr Stoica, the Chamber considered that, just as it was imperative that the relevant domestic authorities launch an investigation and take measures as soon as allegations of ill-treatment were brought to their attention, it was also incumbent on the persons concerned to display diligence and initiative. Thus, the Chamber attached particular importance to the fact that the applicant had not brought his complaint concerning the violence to which he was subjected on 13 June 1990 to the authorities ’ attention until eleven years after those events. 291. It noted that the complaint in question had been joined to case file no. 75/P/1998, which concerned, inter alia, the investigation into the charges of inhuman treatment, and that, in the context of that case, several investigative acts, including two forensic medical examinations, were carried out in respect of the applicant. 292. However, it noted that the case file indicated that, when the applicant lodged his complaint, certain offences – notably assault and wrongful conduct – had already become statute -barred, in application of domestic law. 293. Although the Chamber could accept that in situations of mass violations of fundamental rights it was appropriate to take account of victims ’ vulnerability, especially a possible inability to lodge complaints for fear of reprisals, it found no convincing argument that would justify the applicant ’ s passivity and decision to wait eleven years before submitting his complaint to the relevant authorities. 294. Accordingly, the Chamber concluded that there had been no violation of the procedural aspect of Article 3 of the Convention. 2. The applicants ’ submissions 295. The applicants alleged that the procedural aspect of Articles 2 and 3 of the Convention had been breached in this case. They considered that the duty to investigate of their own motion contained in those Convention provisions was incumbent on the authorities under both domestic and international law. That duty was all the stronger in that the present case did not concern ordinary incidents of unlawful use of force by State agents, but a conflict which was fuelled by the authorities then in power and which set various groups of the population – including ethnic groups – against one another. 296. In this connection, they emphasised that, having regard to the high number of victims of the impugned events, the investigations which concerned them as victims related to crimes that were not subject to statutory limitation, such as genocide or inhuman treatment. They argued that this imposed on the authorities an even greater duty to investigate, which they had not fulfilled. Mrs Mocanu indicated also that she had not been informed of progress in the investigation after 2009. 297. Mr Stoica considered that the Court ought to examine the entirety of the investigation in the present case, in which senior State officials had been charged, and that it should not limit itself to examining that part of the investigation concerning the violence inflicted on him. He submitted that, for the purpose of evaluating the case under the procedural aspect of Article 3, the investigation ought not to be broken up and that the acts of violence to which he had been subjected could not be viewed in isolation. 298. Mr Stoica submitted that those events – on which the investigation ought to have shed light – were particularly significant in Romania ’ s recent history, since they had occurred in the context of the transition towards a democratic society and were part of a process which dated back to the dictator ’ s fall in December 1989. Adding that those events had affected very many people, the applicant considered that the investigation in question had been the only means for Romanian society to discover the truth about this episode in the country ’ s recent history, a factor which ought to have prompted the competent authorities to take appropriate action, something they had failed to do. 299. In this connection, he submitted in particular that, by closing the investigation into inhuman treatment on the ground that the constituent elements of the offence had not been made out, the prosecutor in his decision not to bring a prosecution of 17 June 2009 had incorrectly interpreted the law, since his conclusion was not consistent with the High Court of Cassation and Justice ’ s relevant case-law. 300. In addition, with regard to the offences under investigation which had become time-barred, he considered that the limitation period ought to have been suspended as long as the accused leaders held high-ranking public office. 301. Lastly, the applicant submitted that, having regard to the special features of the case, his lateness in bringing a complaint was irrelevant in examining the complaint alleging a violation of the procedural aspect of Article 3 and that it had not been such as to obstruct the investigation. In this connection, he noted that the decision of 14 October 1999 and the fourth point of the decision to commit for trial of 18 May 2000 placed an obligation on the investigators to identify all the victims of the repression. He also alleged that the authorities had been informed directly about his case. 3. The Government ’ s submissions ( a) With regard to Mrs Mocanu 302. Referring to certain investigative measures in the domestic proceedings, the Government alleged that the national authorities had complied with their obligation to conduct an effective investigation into the circumstances of the death of Mrs Mocanu ’ s husband, all necessary procedural acts to establish the truth about that death – and particularly the factual circumstances in which it occurred – having been carried out in the context of that investigation. 303. They specified that the judicial authorities had been obliged to separate the investigation into several cases, depending on the accused, the offences or the civil parties concerned, given the complexity of the events which took place in June 1990 in Bucharest, and that for the same reason they had had to bring together a complex body of evidence, including more than 5, 700 witness statements. 304. In this connection, they invited the Court to take into consideration the unusual nature of the investigation, which was due not only to the large number of persons involved, but also to the fact that it concerned a sensitive historical event for Romania. They emphasised that the applicants ’ particular situations represented only one part of the vast nexus of events which occurred at the time of the large-scale demonstrations held in Bucharest and which had led to acts of violence, and that those situations could not therefore be analysed in isolation from the general context of the case file. 305. They submitted that there had not been any period of inactivity imputable to the authorities from 2000 to the present date. 306. They also specified that they did not challenge the Chamber ’ s findings with regard to the length of the investigations, but added that this was explained by the need to remedy the initial shortcomings in the investigation and the wish to ensure that the applicant was involved in the proceedings. ( b) With regard to Mr Marin Stoica 307. With regard to Mr Stoica, the Government indicated that the authorities had encountered difficulties in identifying all of the victims and involving them in the proceedings, given that they had not all lodged a complaint promptly. 308. They alleged that the criminal investigation had correctly concluded that criminal liability had become statute -barred, as the ill-treatment inflicted on the applicant did not fall within the category of crimes against humanity. They stressed that that conclusion was not intended to introduce a climate of impunity for the tragic events of 1990, but to apply the procedural rules of domestic law, particularly the reasonable limitation periods, which ranged from three to fifteen years. 309. There were no particular circumstances in this case which would justify imposing on the authorities an enhanced duty to investigate. 310. Furthermore, in the case of multiple violations of fundamental rights, the overall truth was not necessarily established by clarifying each individual situation. In those circumstances, an investigation could attain its objective – establishing the overall truth – even where it was obstructed in a particular individual case by the failure of the victim concerned to take any action. 4. The third party ’ s comments 311. The third-party intervener indicated that, over the past ten years, European and international law had attached increasing importance to the fight against impunity in respect of torture and cruel, inhuman or degrading treatment or sentences, and to the recognition of the right of victims to an effective remedy and to redress. In this regard, it referred to several international texts, in particular the Guidelines of the Committee of Ministers of the Council of Europe on eradicating impunity for serious human rights violations (adopted on 30 March 2011). According to those Guidelines, “the fact that the victim wishes not to lodge an official complaint, later withdraws such a complaint or decides to discontinue the proceedings does not absolve the authorities from their obligation to carry out an effective investigation, if there are reasons to believe that a serious human rights violation has occurred”. 312. The third-party intervener emphasised that Article 3 of the Convention required States to put in place criminal laws which effectively punished serious human rights violations by appropriate sanctions (it referred to the judgments in M.C. v. Bulgaria, no. 39272/98, § 150, ECHR 2003 ‑ XII; Çamdereli v. Turkey, no. 28433/02, § 38, 17 July 2008; and Gäfgen v. Germany [GC], no. 22978/05, § 117, ECHR 2010). It concluded that the statutory limitation periods should be adapted to the special features of such cases, which were characterised, inter alia, by the victims ’ vulnerability, particularly in the event of ill-treatment inflicted by State agents. 313. Relying on a case brought before the International Criminal Tribunal for the former Yugoslavia ( Trial Chamber, Prosecutor v. Furundžija, case no. IT-95-17/1-T, judgment of 1 0 December 1998), it submitted that the inapplicability of statutory limitation of criminal liability with regard to war crimes and crimes against humanity was a unanimously recognised principle, but that it was not, however, limited to this type of crimes. It added that the United Nations Human Rights Committee shared this position in so far as it concerned flagrant violations of fundamental rights, and that the Committee had also stated that statutes of limitations should not be applicable to other forms of ill-treatment ( General Comment No. 3 ( 2012 ), § 40, see paragraph 190 above ). 5. The Court ’ s assessment ( a) General principles 314. The Court will examine together the complaints submitted by Mrs Mocanu and by Mr Stoica under Articles 2 and 3 of the Convention, in the light of the converging principles deriving from both those provisions, principles which are well-established and have been summarised, inter alia, in the judgments in Nachova and Others v. Bulgaria ([GC], nos. 43577/98 and 43579/98, §§ 110 and 112-13, ECHR 2005-VII ); Ramsahai and Others v. the Netherlands ([GC], no. 52391/99, §§ 324-25, ECHR 2007 ‑ II ); Al ‑ Skeini and Others v. the United Kingdom ([GC], no. 55721/07, §§ 162 ‑ 67, ECHR 2011); and El- Masri ( cited above, §§ 182-85). 315. The Court has already stated that, in interpreting Articles 2 and 3, it must be guided by the knowledge that the object and purpose of the Convention as an instrument for the protection of individual human beings requires that its provisions be interpreted and applied so as to make its safeguards practical and effective. It reiterates that Article 3, like Article 2, must be regarded as one of the most fundamental provisions of the Convention and as enshrining core values of the democratic societies making up the Council of Europe ( see Soering v. the United Kingdom, 7 July 1989, § 88, Series A no. 161). 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 Al- Skeini and Others, cited above, § 162 ). 316. The general legal prohibition of arbitrary killing and torture and inhuman or degrading treatment or punishment by agents of the State would be ineffective in practice if there existed no procedure either for reviewing the lawfulness of the use of lethal force by State authorities, or for investigating arbitrary killings and allegations of ill-treatment of persons held by them ( see Al- Skeini and Others, cited above, § 163, and El- Masri, cited above, § 182). 317. Thus, having regard to the general duty on the State under Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms defined in [the] Convention”, the provisions of Articles 2 and 3 require by implication that there should be some form of effective official investigation, both when individuals have been killed as a result of the use of force by, inter alia, agents of the State ( see McCann and Others v. the United Kingdom, 27 September 1995, § 161, Series A no. 324), and where an individual makes a credible assertion that he has suffered treatment infringing Article 3 of the Convention at the hands, inter alia, of the police or other similar authorities ( see Assenov and Others v. Bulgaria, 28 October 1998, § 102, Reports 1998 ‑ VIII). 318. The essential purpose of such an investigation is to secure the effective implementation of the domestic laws safeguarding the right to life and prohibiting torture and inhuman or degrading treatment and punishment in cases involving State agents or bodies, and to ensure their accountability for deaths and ill-treatment occurring under their responsibility ( see Nachova and Others, cited above, § 110, and Ahmet Özkan and Others v. Turkey, no. 21689/93, §§ 310 and 358, 6 April 2004 ). 319. The Court has already held that the procedural obligation under Articles 2 and 3 continues to apply in difficult security conditions, including in a context of armed conflict. Even where the events leading to the duty to investigate occur in a context of generalised violence and investigators are confronted with obstacles and constraints which compel the use of less effective measures of investigation or cause an investigation to be delayed, the fact remains that Articles 2 and 3 entail that all reasonable steps must be taken to ensure that an effective and independent investigation is conducted ( see Al- Skeini and Others, cited above, § 164). 320. Generally speaking, for an investigation to be effective, the persons responsible for carrying it out must be independent from those targeted by it. This means not only a lack of hierarchical or institutional connection but also a practical independence ( see Nachova and Others, cited above, § 110, and Halat v. Turkey, no. 23607/08, § 51, 8 November 2011). 321. 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 and unlawfully used lethal force, but also all the surrounding circumstances ( see Al- Skeini and Others, cited above, § 163). 322. Although this is not an obligation of result, but of means, any deficiency in the investigation which undermines its ability to establish the circumstances of the case or the person responsible will risk falling foul of the required standard of effectiveness ( see El- Masri, cited above, § 18 3 ). 323. A requirement of promptness and reasonable expedition is implicit in this context. While there may be obstacles or difficulties which prevent progress in an investigation in a particular situation, a prompt response by the authorities in investigating a use of lethal force or allegations of ill-treatment 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 v. the United Kingdom, no. 28883/95, § 114, ECHR 2001-III). 324. In all cases, with regard to the obligations arising under Article 2 of the Convention, the next of kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests. Equally, with regard to Article 3 of the Convention, the victim should be able to participate effectively in the investigation ( see McKerr, cited above, § 115). 325. Lastly, the investigation must be thorough, 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 ( see El- Masri, cited above, § 183). 326. The Court has also held that in cases concerning torture or ill-treatment inflicted by State agents, criminal proceedings ought not to be discontinued on account of a limitation period, and also that amnesties and pardons should not be tolerated in such cases ( see Abdülsamet Yaman v. Turkey, no. 32446/96, § 55, 2 November 2004; Yeter v. Turkey, no. 33750/03, § 70, 13 January 2009; and Association “ 21 December 1989 ” and Others, cited above, § 144). Furthermore, the manner in which the limitation period is applied must be compatible with the requirements of the Convention. It is therefore difficult to accept inflexible limitation periods admitting of no exceptions ( see, mutatis mutandis, Röman v. Finland, no. 13072/05, § 50, 29 January 2013). ( b) Application of the above principles to the present case 327. In the present case, the Court notes that a criminal investigation was opened of the authorities ’ own motion shortly after the events of June 1990. From the outset, that investigation concerned the death by gunfire of Mrs Mocanu ’ s husband and other persons, and also the ill-treatment inflicted on other individuals in the same circumstances. The Court also notes that this investigation was initially divided up into several hundred separate case files (see paragraphs 82-87 above), and that it was subsequently brought together before being again split on several occasions into four, two and then three branches. 328. It appears from the decision issued on 14 October 1999 by the military section of the prosecutor ’ s office at the Supreme Court of Justice that that investigation was also tasked with identifying all of the victims of the repression carried out from 13 to 15 June 1990. It therefore concerned Mr Stoica, at least with effect from 18 June 2001, the date on which he officially lodged a complaint. The Court notes that a very high number of case files were opened at national level. However, given that all of these cases originated in the same events – which indeed resulted in their being regrouped by a decision of the prosecutor ’ s office at the Supreme Court of Justice into one single case in 1997 – the Court considers that it is essentially dealing with one and the same investigation. Even if the Court considered that the case concerns two distinct investigations, one in respect of Mrs Mocanu and the other in respect of Mr Stoica, its findings as to their effectiveness would be the same, for the reasons set out below. 329. The Court notes that this investigation is still pending in respect of Mrs Anca Mocanu. The judgment adopted by the High Court of Cassation and Justice on 17 December 2007, returning to the prosecutor ’ s office the file on the charges initially brought against five army officers, is the most recent judicial decision delivered in respect of the first applicant. 330. The Court notes that the part of the investigation concerning Mr Stoica and implicating thirty-seven high-ranking civilian and military officials – including a former Head of State and two former Ministers of the Interior and of Defence – was terminated by a judgment delivered on 9 March 2011 by the High Court of Cassation and Justice. 331. It reiterates that its competence ratione temporis permits it to consider only that part of the investigation which occurred after 20 June 1994, the date on which the Convention came into force in respect of Romania (see paragraph 2 11 above). Accordingly, it will examine whether, after that date, the investigation conducted in the present case met the criteria of effectiveness set out above. ( i ) Independence of the investigation 332. The Court notes that from 1997, a few years after the date on which the Convention came into force in respect of Romania, until early 2008 the case was pending before the military section of the prosecutor ’ s office at the Supreme Court of Justice (from 2003, the High Court of Cassation and Justice ). It also notes that, with regard to Mrs Mocanu, the investigation is still pending before the military prosecutor ’ s office, after the ordinary prosecutor ’ s office declined jurisdiction on 6 June 2013 (see paragraph 123 above). 333. In this connection, the Grand Chamber endorses the Chamber ’ s finding that the investigation was entrusted to military prosecutors who, like the accused ( two of whom were generals), were officers in a relationship of subordination within the military hierarchy, a finding which has already led the Court to conclude that there has been a violation of the procedural aspect of Article 2 and Article 3 of the Convention in previous cases against Romania ( see Barbu Anghelescu v. Romania, no. 46430/99, § 67, 5 October 2004; Bursuc v. Romania, no. 42066/98, § 107, 12 October 2004; and, more recently, Şandru and Others, cited above, § 74; Association “ 21 December 1989 ” and Others, cited above, § 137; and Crăiniceanu and Frumuşanu v. Romania, no. 12442/04, § 92, 24 April 2012). 334. The number of violations found in cases similar to the present case is a matter of particular concern and casts serious doubt on the objectivity and impartiality of the investigations that the military prosecutors are called upon to conduct ( see, mutatis mutandis, Nachova and Others, cited above, § 117). The Government have not put forward any fact or argument capable of persuading the Court to conclude otherwise in the present case. ( ii ) Expedition and adequacy of the investigation 335. The Court notes that the investigation concerning Mrs Mocanu has been pending for more than twenty-three years, and for more than nineteen years since the Convention was ratified by Romania. Over this period, three of the five high-ranking army officers implicated in the killing of the applicant ’ s husband have died. 336. It also notes, in respect of Mr Stoica, that the relevant investigation was terminated by a judgment delivered on 9 March 2011, twenty-one years after the opening of the investigation and ten years after the official lodging of the applicant ’ s complaint and its joinder to the investigation case file. 337. Yet the very passage of time is liable not only to undermine an investigation, but also to compromise definitively its chances of being completed ( see M.B. v. Romania, no. 43982/06, § 64, 3 November 2011). 338. While acknowledging that the case is indisputably complex, as the Government have themselves emphasised, the Court considers that the political and societal stakes referred to by the latter cannot justify such a long period. On the contrary, the importance of those stakes for Romanian society should have led the authorities to deal with the case promptly and without delay in order to avoid any appearance of collusion in or tolerance of unlawful acts ( see, inter alia, Lăpuşan and Others, cited above, § 94, concerning a lapse of more than sixteen years since the opening of an investigation intended to lead to the identification and punishment of those responsible for repression of the anti-communist demonstrations of 1989, and more than eleven years since the entry into force of the Convention ). 339. The Court observes, however, that lengthy periods of inactivity occurred in the investigation in the present case, both at the initial stages and in recent years. It notes, in particular, that no significant progress was made in the investigation from 20 June 1994, date of the Convention ’ s entry into force, to 22 October 1997, the date on which joinder began of the numerous files which had been opened separately but which were part of the same factual context as that in which the present applications originated. It was only after that date that the prosecutor ’ s office began to conduct a wider investigation into all of the circumstances surrounding the concerted use of force by State agents against the civilian population ( see Al- Skeini and Others, cited above, § 163). 340. Furthermore, the Court notes that the decision of 16 September 1998 mentions that no investigative measure into the complaints of the persons assaulted at the State television headquarters had been conducted prior to that date (see paragraph 100 above). 341. In addition, the only procedural acts carried out in the case concerning Mrs Mocanu since the last referral to the prosecutor ’ s office, ordered on 17 December 2007, are the decision to discontinue proceedings, issued on 6 June 2013 in respect of two co-defendants who had died in the meantime, and two statements declining jurisdiction, issued on 30 April 2009 and 6 June 2013 respectively. 342. The Court also notes that the national authorities themselves found numerous shortcomings in the investigation. Thus, the decision adopted on 16 September 1998 by the prosecutor ’ s office at the Supreme Court of Justice indicated that none of the individuals who had held high office at the relevant time – in particular, the Head of State, the Prime Minister and his deputy, the Minister of the Interior and the Head of Police – had yet been questioned. 343. Further, the subsequent investigation did not enable all the defects to be remedied, as the Supreme Court of Justice and the High Court of Cassation and Justice noted in their respective decisions of 30 June 2003 and 17 December 2007, referring to the shortcomings in the previous proceedings. 344. Moreover, the Court notes that the investigation – severed since 1998 from the rest of the case – into the violence inflicted on numerous demonstrators and other persons who had been present by chance at the scene of the crackdown was terminated by the decision not to bring a prosecution, issued on 17 June 2009 and upheld by the judgment of 9 March 2011. Those persons included Mr Stoica, who, having lodged a complaint in 2001, had to wait ten years for the investigation to be completed. However, in spite of the length of time involved and the investigative acts carried out in respect of the applicant and listed by the Government, none of the above-cited decisions succeeded in establishing the circumstances of the ill-treatment which the applicant and other persons claimed to have sustained at the State television headquarters. 345. The decision adopted by the prosecutor ’ s office on 17 June 2009 indicated in substance that it had been impossible to establish the assailants ’ identity and the security forces ’ degree of involvement at the close of the investigations carried out by the civilian and then the military prosecution services. However, the authorities did not indicate what evidence had been used with a view to establishing the facts and for what tangible reasons their actions had not produced results. Moreover, at domestic level they had never called into question the applicant ’ s conduct in respect of the investigation, and had failed to make any comment concerning the date on which the applicant lodged his complaint. 346. The Court notes that this branch of the investigation was terminated essentially on account of the statutory limitation of criminal liability. In this connection, it reiterates that the procedural obligations arising under Articles 2 and 3 of the Convention can hardly be considered to have been met where an investigation is terminated, as in the present case, through statutory limitation of criminal liability resulting from the authorities ’ inactivity ( see Association “ 21 December 1989 ” and Others, cited above, § 14 4 ). 347. With regard to the other major finding of the investigation, namely the conclusion that the constituent elements of inhuman treatment, punishable under Article 35 8 of the Romanian Criminal Code, had not been made out in respect of Mr Stoica, the Court considers that the conformity of the prosecutor ’ s interpretation with the relevant domestic case-law is open to doubt, in view of the judgment delivered by the High Court of Cassation and Justice on 7 July 2009. Moreover, the Government have not adduced other examples of case-law in support of the decision given in this case. The Court also considers that the conclusion to the effect that the miners no longer had an enemy against whom to fight on 14 June 1990 ( see paragraph 16 1 above ) appears doubtful, since it manifestly disregards the violence which occurred on 13 June 1990 in the presence of large numbers of servicemen, equipped with heavy ammunition and tanks, as attested to in the above-cited decision itself. Furthermore, this conclusion is contrary to the facts established by the same decision, which describes in detail the acts of violence perpetrated on 14 June 1990 by the miners, who targeted, without distinction, the demonstrators, students who were present on the university premises and passers-by. In addition, in its judgment of 9 March 2011 dismissing Mr Stoica ’ s appeal against the decision not to bring a prosecution, the High Court of Cassation and Justice made no assessment whatsoever of the question of the applicability of Article 35 8 of the Criminal Code, and merely verified how the rules on statutory limitation had been applied in this case. 348. Accordingly, it appears that the authorities responsible for the investigation in this case did not take all the measures reasonably capable of leading to the identification and punishment of those responsible. ( iii ) The first applicant ’ s involvement in the investigation 349. With regard to the obligation to involve victims ’ relatives in the proceedings, the Court observes that Mrs Mocanu was not informed of progress in the investigation prior to the decision of 18 May 2000 committing for trial the persons accused of killing her husband. 350. Moreover, the Court notes that the applicant was questioned by the prosecutor for the first time on 14 February 2007, almost seventeen years after the events, and that, following the High Court of Cassation and Justice ’ s judgment of 17 December 2007, she was no longer informed about developments in the investigation. 351. The Court is not therefore persuaded that Mrs Mocanu ’ s interests in participating in the investigation were sufficiently protected ( see Association “ 21 December 1989 ” and Others, cited above, § 141). ( iv ) Conclusion 352. In the light of the foregoing, the Court considers that Mrs Mocanu did not have the benefit of an effective investigation as required by Article 2 of the Convention, and that Mr Stoica was also deprived of an effective investigation for the purposes of Article 3. 353. There has, accordingly, been a breach of the procedural aspect of those provisions. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 354. The applicant association complained of the length of the criminal proceedings which it had joined as a civil party in order to claim reparation for the damage caused by the ransacking of its headquarters on 14 June 1990, the destruction of its property and the assaults on its members. 355. It alleged on that account a violation of Article 6 § 1 of the Convention, the relevant part of which provides : “In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...” A. The Chamber judgment 356. The Chamber considered that the length of the impugned proceedings had been excessive and found a violation of Article 6 § 1. B. The parties ’ submissions 357. The applicant association stated that it had welcomed the Chamber judgment. 358. The Government stated that they did not contest, in principle, the Chamber ’ s conclusions as to the length of the criminal proceedings which the applicant association had joined as a civil party. C. The Court ’ s assessment 359. The Grand Chamber sees no reason to depart from the Chamber ’ s finding. Like the Chamber, it observes that on 26 July 1990 the association had lodged an official complaint with a request to join the proceedings as a civil party, referring to the damage sustained by it during the events of 13 to 15 June 1990. That criminal complaint was examined as part of the investigation which was closed by the decision of 17 June 2009 not to bring a prosecution. The proceedings with regard to the applicant association thus lasted almost nineteen years. 360. The Court ’ s competence ratione temporis being limited, the Chamber had been able to examine the complaint about the length of proceedings only in so far as it concerned the period after 20 June 1994, the date on which the Convention entered into force in respect of Romania. The length of the proceedings to be taken into account was therefore fifteen years. 361. The Court reiterates that it has found a violation of Article 6 § 1 of the Convention on numerous occasions in cases raising similar issues to those in the instant case ( see Frydlender v. France [GC], no. 30979/96, § 46, ECHR 2000 ‑ VII, and, in particular, Gheorghe and Maria Mihaela Dumitrescu v. Romania, no. 6373, §§ 26-28, 29 July 2008, also concerning the length of criminal proceedings to which a civil party had been joined ). 362. After examining all the evidence submitted to it, the Court considers that there are no reasons justifying a different conclusion in the present case. 363. In the light of the criteria established in its case-law and having regard to all the circumstances of the case, the Court considers that the length of the impugned proceedings was excessive and failed to meet the “reasonable time” requirement. 364. There has accordingly been a violation of Article 6 § 1 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 365. 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 alleged by Mrs Anca Mocanu 1. The parties ’ submissions 366. Before the Chamber the applicant had claimed 200,000 euros (EUR) in respect of the non-pecuniary damage allegedly sustained on account of the excessive length of the investigation into the killing of her husband, then aged 22. She submitted that she herself had been aged 20 at the time, and had found herself alone with their two children, one aged two years and the other a few months old. She indicated that over the following twenty years, during which she had waited for the investigation to be terminated and those responsible for her husband ’ s death to be identified, she had been obliged to provide for her own needs and those of her children, working as a cleaner and enduring wretched living conditions. She had also claimed EUR 100,000 in respect of pecuniary damage, without explaining its exact nature. 367. Considering those claims for just satisfaction to be excessive and unsubstantiated, the Government had invited the Court to dismiss them. 2. The Chamber judgment 368. With regard to the sum claimed in respect of pecuniary damage, the Chamber found no causal link between the violation found and the alleged pecuniary damage. Accordingly, it rejected that claim. 369. In contrast, it considered that just satisfaction should be awarded on account of the fact that the domestic authorities had failed to investigate the killing of the applicant ’ s husband with the degree of diligence required by Article 2 of the Convention. It awarded the applicant EUR 30, 000 under this head. 370. In addition, the Chamber reiterated that the application of the principle of restitutio in integrum implied that the applicants were put, as far as possible, in the same situation as that in which they would have found themselves had there not been a breach of the requirements of the Convention and concluded that the respondent State was to take the necessary measures to expedite the investigation into the killing of Mr Velicu -Valentin Mocanu, so that a decision which met the requirements of the Convention could be given. 3. The Court ’ s assessment 371. Having regard to the foregoing, to the reasons set out by the Chamber and to the fact that the applicant did not change the claim initially submitted to the Chamber, the Court considers that the applicant sustained significant non-pecuniary damage arising from the violation of the procedural aspect of Article 2. It awards her the sum of EUR 30, 000 in this respect. B. Damage alleged by Mr Marin Stoica 372. The applicant had claimed EUR 200,000 before the Chamber in respect of non-pecuniary damage. 373. Considering this claim excessive, the Government had submitted that the finding of a violation would constitute in itself sufficient just satisfaction in respect of the alleged non-pecuniary damage. 374. The Chamber having held that there had been no violation of the Convention in respect of Mr Stoica, it had not examined the claim for just satisfaction submitted by him. 375. The Court considers that Mr Stoica undeniably sustained non-pecuniary damage. Taking into account the violation of Article 3 found in respect of the applicant and ruling on an equitable basis as required by Article 41 of the Convention, the Court awards him EUR 1 5, 000 in respect of non-pecuniary damage. C. The applicant association ’ s claim 376. The Chamber concluded that the applicant association had not submitted a claim for just satisfaction within the time allowed. 377. During the proceedings before the Grand Chamber, the association resubmitted to the Court a fax which it had sent on 22 December 2009, stating that this constituted a claim for just satisfaction. 378. The Court notes that, through this unsigned request, the applicant association claimed compensation amounting to EUR 42, 519, allegedly corresponding to the amount, adjusted for inflation, of the pecuniary damage which it had sustained on account of the ransacking of its headquarters, and stated that it wished to use this sum, inter alia, for “the restoration of [his] health [ sic ]”. As this claim is confused, it cannot be taken into consideration. Even supposing that it could be considered as a properly submitted claim for just satisfaction, it relates solely to pecuniary damage that is unconnected to the finding of a violation of Article 6 of the Convention arising from the excessive length of the proceedings. 379. The Court therefore rejects the applicant association ’ s claim. D. Costs and expenses 1. Costs and expenses in respect of the applications by Mrs Anca Mocanu and the applicant association ( nos. 10865/09 and 4 5 886/07 ) 380. The applicants claimed the sum of EUR 18, 050 in respect of the costs and expenses incurred in the proceedings before the Court, of which EUR 2, 800 related to the proceedings before the Grand Chamber, including the fees for their three lawyers. 381. The Government considered, with regard to the proceedings before the Chamber, that this claim was out of time, as it had not been submitted within the time allowed. 382. They also considered that, with regard to the proceedings before the Grand Chamber, this claim was excessive, and pointed out that it was not accompanied by any supporting documentation. 383. The Chamber concluded that the applicants had not submitted a claim for just satisfaction within the time allowed. 384. According to the Court ’ s established case-law, an award can be made in respect of costs and expenses only in so far as they have been actually and necessarily incurred and are reasonable as to quantum ( see Iatridis v. Greece ( just satisfaction) [GC], no. 31107/96, § 54, ECHR 2000 ‑ XI). 385. In the present case, regard being had to the documents in its possession and its case-law, the Court considers it reasonable to award the sum of EUR 2,800 claimed for the costs and expenses incurred in the proceedings before the Grand Chamber, this being the only claim submitted in a timely manner. From that amount must be deducted the sum of EUR 600 already paid jointly to two of the applicants ’ three lawyers by the Council of Europe by way of legal aid. 2. Costs and expenses in respect of the application by Mr Marin Stoica ( no. 32431/08 ) 386. The applicant claimed EUR 11, 507. 39 in respect of the costs and expenses incurred in the proceedings before the Grand Chamber, namely EUR 10, 394 in lawyer ’ s fees, EUR 300 in postal charges and EUR 813. 39 for the travel costs incurred by the applicant and his lawyer in attending the hearing before the Grand Chamber. 387. The Government considered that the time spent by the applicant ’ s lawyer in preparing the request for referral to the Grand Chamber, namely 15 hours, was unreasonable. They made the same comments in respect of the time spent in preparing the applicant ’ s additional observations – 20 hours – and the 15 hours spent in preparing counsel ’ s address. 388. In addition, the Government submitted that the costs incurred by the applicant to attend the hearing had not been necessary, given that only his lawyer ’ s presence had been justified. They opposed the claim for reimbursement of the applicant ’ s travel costs. 389. In the present case, regard being had to the documents in its possession and its case-law, the Court considers it reasonable to award the sum of EUR 11,507.39 claimed for the costs and expenses incurred in the proceedings before it, to be paid directly to Ms Hatneanu. From that amount must be deducted the sum of EUR 1, 638. 47 already paid by the Council of Europe by way of legal aid, and covering the travel costs incurred by the applicant and his lawyer. E. Default interest 390. 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 in its procedural aspect (investigation) in respect of the first applicant and a violation of the procedural aspect of Article 3 (prohibition of torture and inhuman or degrading treatment) of the Convention in respect of the second applicant, finding that the authorities responsible for the investigation had not taken all the measures which could have led to the identification and punishment of those responsible for the violent events and that the applicants had not had the benefit of an effective investigation for the purposes of the Convention. The Court accepted in particular that, in exceptional circumstances, the psychological consequences of ill treatment inflicted by State agents could undermine victims’ capacity to complain about treatment inflicted on them and could constitute a significant impediment to their right to redress. In the present case, the Court noted that the second applicant, like the majority of the victims, had found the courage to lodge a complaint only several years after the events, when the investigation which had already been opened of the authorities’ own motion seemed to be making progress. It therefore considered that, in the exceptional circumstances of this case, the applicant’s vulnerability and his feeling of powerlessness amounted to a plausible and acceptable explanation for the fact that he had not lodged a complaint until 2001, more than ten years after the events. |
600 | Proselytism | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Statutory provisions 1. The Constitution 13. The relevant Articles of the 1975 Constitution read as follows: Article 3 "1. The dominant religion in Greece is that of the Christian Eastern Orthodox Church. The Greek Orthodox Church, which recognises as its head Our Lord Jesus Christ, is indissolubly united, doctrinally, with the Great Church of Constantinople and with any other Christian Church in communion with it ( omodoxi ), immutably observing, like the other Churches, the holy apostolic and synodical canons and the holy traditions. It is autocephalous and is administered by the Holy Synod, composed of all the bishops in office, and by the standing Holy Synod, which is an emanation of it constituted as laid down in the Charter of the Church and in accordance with the provisions of the Patriarchal Tome of 29 June 1850 and the Synodical Act of 4 September 1928. 2. The ecclesiastical regime in certain regions of the State shall not be deemed contrary to the provisions of the foregoing paragraph. 3. The text of the Holy Scriptures is unalterable. No official translation into any other form of language may be made without the prior consent of the autocephalous Greek Church and the Great Christian Church at Constantinople ." Article 13 "1. Freedom of conscience in religious matters is inviolable. The enjoyment of personal and political rights shall not depend on an individual ’ s religious beliefs. 2. There shall be freedom to practise any known religion; individuals shall be free to perform their rites of worship without hindrance and under the protection of the law. The performance of rites of worship must not prejudice public order or public morals. Proselytism is prohibited. 3. The ministers of all known religions shall be subject to the same supervision by the State and to the same obligations to it as those of the dominant religion. 4. No one may be exempted from discharging his obligations to the State or refuse to comply with the law by reason of his religious convictions. 5. No oath may be required other than under a law which also determines the form of it." 14. The Christian Eastern Orthodox Church, which during nearly four centuries of foreign occupation symbolised the maintenance of Greek culture and the Greek language, took an active part in the Greek people ’ s struggle for emancipation, to such an extent that Hellenism is to some extent identified with the Orthodox faith. A royal decree of 23 July 1833 entitled "Proclamation of the Independence of the Greek Church" described the Orthodox Church as "autocephalous". Greece ’ s successive Constitutions have referred to the Church as being "dominant". The overwhelming majority of the population are members of it, and, according to Greek conceptions, it represents de jure and de facto the religion of the State itself, a good number of whose administrative and educational functions (marriage and family law, compulsory religious instruction, oaths sworn by members of the Government, etc.) it moreover carries out. Its role in public life is reflected by, among other things, the presence of the Minister of Education and Religious Affairs at the sessions of the Church hierarchy at which the Archbishop of Athens is elected and by the participation of the Church authorities in all official State events; the President of the Republic takes his oath of office according to Orthodox ritual (Article 33 para. 2 of the Constitution); and the official calendar follows that of the Christian Eastern Orthodox Church. 15. Under the reign of Otto I (1832-62), the Orthodox Church, which had long complained of a Bible society ’ s propaganda directed at young Orthodox schoolchildren on behalf of the Evangelical Church, managed to get a clause added to the first Constitution (1844) forbidding "proselytism and any other action against the dominant religion". The Constitutions of 1864, 1911 and 1952 reproduced the same clause. The 1975 Constitution prohibits proselytism in general (Article 13 para. 2 in fine - see paragraph 13 above): the ban covers all "known religions", meaning those whose doctrines are not apocryphal and in which no secret initiation is required of neophytes. 2. Laws nos. 1363/1938 and 1672/1939 16. During the dictatorship of Metaxas (1936-40) proselytism was made a criminal offence for the first time by section 4 of Law ( anagastikos nomos ) no. 1363/1938. The following year that section was amended by section 2 of Law no. 1672/1939, in which the meaning of the term "proselytism" was clarified: "1. Anyone engaging in proselytism shall be liable to imprisonment and a fine of between 1,000 and 50,000 drachmas; he shall, moreover, be subject to police supervision for a period of between six months and one year to be fixed by the court when convicting the offender. The term of imprisonment may not be commuted to a fine. 2. By ‘ proselytism ’ is meant, in particular, any direct or indirect attempt to intrude on the religious beliefs of a person of a different religious persuasion ( eterodoxos ), with the aim of undermining those beliefs, either by any kind of inducement or promise of an inducement or moral support or material assistance, or by fraudulent means or by taking advantage of his inexperience, trust, need, low intellect or naïvety. 3. The commission of such an offence in a school or other educational establishment or a philanthropic institution shall constitute a particularly aggravating circumstance." B. Case-law 17. In a judgment numbered 2276/1953 a full court of the Supreme Administrative Court ( Symvoulio tis Epikratias ) gave the following definition of proselytism: "Article 1 of the Constitution, which establishes the freedom to practise any known religion and to perform rites of worship without hindrance and prohibits proselytism and all other activities directed against the dominant religion, that of the Christian Eastern Orthodox Church, means that purely spiritual teaching does not amount to proselytism, even if it demonstrates the errors of other religions and entices possible disciples away from them, who abandon their original religions of their own free will; this is because spiritual teaching is in the nature of a rite of worship performed freely and without hindrance. Outside such spiritual teaching, which may be freely given, any determined, importunate attempt to entice disciples away from the dominant religion by means that are unlawful or morally reprehensible constitutes proselytism as prohibited by the aforementioned provision of the Constitution." 18. The Greek courts have held that persons were guilty of proselytism who had: likened the saints to "figures adorning the wall", St Gerasimos to "a body stuffed with cotton" and the Church to "a theatre, a market, a cinema"; preached, while displaying a painting showing a crowd of wretched people in rags, that "such are all those who do not embrace my faith" (Court of Cassation, judgment no. 271/1932, Themis XVII, p. 19); promised Orthodox refugees housing on specially favourable terms if they adhered to the Uniate faith (Court of Appeal of the Aegean, judgment no. 2950/1930, Themis B, p. 103); offered a scholarship for study abroad (Court of Cassation, judgment no. 2276/1953); sent Orthodox priests booklets with the recommendation that they should study them and apply their content (Court of Cassation, judgment no. 59/1956, Nomiko Vima, 1956, no. 4, p. 736); distributed "so-called religious" books and booklets free to "illiterate peasants" or to "young schoolchildren" (Court of Cassation, judgment no. 201/1961, Criminal Annals XI, p. 472); or promised a young seamstress an improvement in her position if she left the Orthodox Church, whose priests were alleged to be "exploiters of society" (Court of Cassation, judgment no. 498/1961, Criminal Annals XII, p. 212). The Court of Cassation has ruled that the definition of proselytism in section 4 of Law no. 1363/1938 does not contravene the principle that only the law can define a crime and prescribe a penalty. The Piraeus Criminal Court followed it in an order ( voulevma ) numbered 36/1962 (Greek Lawyers ’ Journal, 1962, p. 421), adding that the expression "in particular" in section 4 of Law no. 1363/1938 (see paragraph 16 above) referred to the means used by the person committing the offence and not to the description of the actus reus. 19. Until 1975 the Court of Cassation held that the list in section 4 was not exhaustive. In a judgment numbered 997/1975 (Criminal Annals XXVI, p. 380) it added the following clarification: "... it follows from the provisions of section 4 ... that proselytism consists in a direct or indirect attempt to impinge on religious beliefs by any of the means separately listed in the Law." 20. More recently courts have convicted Jehovah ’ s Witnesses for professing the sect ’ s doctrine "importunately" and accusing the Orthodox Church of being a "source of suffering for the world" ( Salonika Court of Appeal, judgment no. 2567/1988); for entering other people ’ s homes in the guise of Christians wishing to spread the New Testament ( Florina Court of First Instance, judgment no. 128/1989); and for attempting to give books and booklets to an Orthodox priest at the wheel of his car after stopping him ( Lasithi Court of First Instance, judgment no. 357/1990). In a judgment numbered 1304/1982 (Criminal Annals XXXII, p. 502), on the other hand, the Court of Cassation quashed a judgment of the Athens Court of Appeal (no. 5434/1981) as having no basis in law because, when convicting a Jehovah ’ s Witness, the Court of Appeal had merely reiterated the words of the indictment and had thus not explained how "the importunate teaching of the doctrines of the Jehovah ’ s Witnesses sect" or "distribution of the sect ’ s booklets at a minimal price" had amounted to an attempt to intrude on the complainants ’ religious beliefs, or shown how the defendant had taken advantage of their "inexperience" and "low intellect". The Court of Cassation remitted the case to a differently constituted bench of the Court of Appeal, which acquitted the defendant. Similarly, it has been held in several court decisions that the offence of proselytism was not made out where there had merely been a discussion about the beliefs of the Jehovah ’ s Witnesses, where booklets had been distributed from door to door ( Patras Court of Appeal, judgment no. 137/1988) or in the street (Larissa Court of Appeal, judgment no. 749/1986) or where the tenets of the sect had been explained without any deception to an Orthodox Christian ( Trikkala Criminal Court, judgment no. 186/1986). Lastly, it has been held that being an "illiterate peasant" is not sufficient to establish the "naïvety", referred to in section 4, of the person whom the alleged proselytiser is addressing (Court of Cassation, judgment no. 1155/1978). 21. After the revision of the Constitution in 1975, the Jehovah ’ s Witnesses brought legal proceedings to challenge the constitutionality of section 4 of Law no. 1363/1938. They complained that the description of the offence was vague, but above all they objected to the actual title of the Law, which indicated that the Law was designed to preserve Articles 1 and 2 of the Constitution in force at the time (the 1911 Constitution - see paragraph 12 above), which prohibited proselytism directed against the dominant religion. In the current Constitution this prohibition is extended to all religions and furthermore is no longer included in the chapter concerning religion but in the one dealing with civil and social rights, and more particularly in Article 13, which guarantees freedom of conscience in religious matters. The courts have always dismissed such objections of unconstitutionality, although they have been widely supported in legal literature. PROCEEDINGS BEFORE THE COMMISSION 25. Mr Kokkinakis applied to the Commission on 22 August 1988. He claimed that his conviction for proselytism was in breach of the rights secured in Articles 7, 9 and 10 (art. 7, art. 9, art. 10) of the Convention. He also relied on Article 5 para. 1 and Article 6 paras. 1 and 2 (art. 5-1, art. 6-1, art. 6-2). 26. The Commission declared the application (no. 14307/88) admissible on 7 December 1990 except for the complaints based on Articles 5 and 6 (art. 5, art. 6), which it declared inadmissible as being manifestly ill-founded. In its report of 3 December 1991 (made under Article 31) (art. 31), the Commission expressed the opinion that (a) there had been no violation of Article 7 (art. 7) (by eleven votes to two); (b) there had been a violation of Article 9 (art. 9) (unanimously); and (c) no separate issue arose under Article 10 (art. 10) (by twelve votes to one). 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 [*]. AS TO THE LAW 27. Mr Kokkinakis complained of his conviction for proselytism; he considered it contrary to Articles 7, 9 and 10 (art. 7, art. 9, art. 10) of the Convention, and to Article 14 taken together with Article 9 (art. 14+9). I. ALLEGED VIOLATION OF ARTICLE 9 (art. 9) 28. The applicant ’ s complaints mainly concerned a restriction on the exercise of his freedom of religion. The Court will accordingly begin by looking at the issues relating to Article 9 (art. 9), 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." 29. The applicant did not only challenge what he claimed to be the wrongful application to him of section 4 of Law no. 1363/1938. His submission concentrated on the broader problem of whether that enactment was compatible with the right enshrined in Article 9 (art. 9) of the Convention, which, he argued, having been part of Greek law since 1953, took precedence under the Constitution over any contrary statute. He pointed to the logical and legal difficulty of drawing any even remotely clear dividing-line between proselytism and freedom to change one ’ s religion or belief and, either alone or in community with others, in public and in private, to manifest it, which encompassed all forms of teaching, publication and preaching between people. The ban on proselytism, which was made a criminal offence during the Metaxas dictatorship, was not only unconstitutional, Mr Kokkinakis submitted, but it also formed, together with the other clauses of Law no. 1363/1938, "an arsenal of prohibitions and threats of punishment" hanging over the adherents of all beliefs and all creeds. Mr Kokkinakis complained, lastly, of the selective application of this Law by the administrative and judicial authorities; it would surpass "even the wildest academic hypothesis" to imagine, for example, the possibility of a complaint being made by a Catholic priest or by a Protestant clergyman against an Orthodox Christian who had attempted to entice one of his flock away from him. It was even less likely that an Orthodox Christian would be prosecuted for proselytising on behalf of the "dominant religion". 30. In the Government ’ s submission, there was freedom to practise all religions in Greece; religious adherents enjoyed the right both to express their beliefs freely and to try to influence the beliefs of others, Christian witness being a duty of all Churches and all Christians. There was, however, a radical difference between bearing witness and "proselytism that is not respectable", the kind that consists in using deceitful, unworthy and immoral means, such as exploiting the destitution, low intellect and inexperience of one ’ s fellow beings. Section 4 prohibited this kind of proselytism - the "misplaced" proselytism to which the European Court referred in its Kjeldsen, Busk Madsen and Pedersen v. Denmark judgment of 7 December 1976 (Series A no. 23, p. 28, para. 54) - and not straightforward religious teaching. Furthermore, it was precisely this definition of proselytism that had been adopted by the Greek courts. A. General principles 31. As enshrined in Article 9 (art. 9), freedom of thought, conscience and religion is one of the foundations of a "democratic society" within the meaning of the Convention. It is, in its religious dimension, one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been dearly won over the centuries, depends on it. While religious freedom is primarily a matter of individual conscience, it also implies, inter alia, freedom to "manifest [one ’ s] religion". Bearing witness in words and deeds is bound up with the existence of religious convictions. According to Article 9 (art. 9), freedom to manifest one ’ s religion is not only exercisable in community with others, "in public" and within the circle of those whose faith one shares, but can also be asserted "alone" and "in private"; furthermore, it includes in principle the right to try to convince one ’ s neighbour, for example through "teaching", failing which, moreover, "freedom to change [one ’ s] religion or belief", enshrined in Article 9 (art. 9), would be likely to remain a dead letter. 32. The requirements of Article 9 (art. 9) are reflected in the Greek Constitution in so far as Article 13 of the latter declares that freedom of conscience in religious matters is inviolable and that there shall be freedom to practise any known religion (see paragraph 13 above). Jehovah ’ s Witnesses accordingly enjoy both the status of a "known religion" and the advantages flowing from that as regards observance (see paragraphs 22-23 above). 33. The fundamental nature of the rights guaranteed in Article 9 para. 1 (art. 9-1) is also reflected in the wording of the paragraph providing for limitations on them. Unlike the second paragraphs of Articles 8, 10 and 11 (art. 8-2, art. 10-2, art, 11-2) which cover all the rights mentioned in the first paragraphs of those Articles (art. 8-1, art. 10-1, art. 11-1), that of Article 9 (art. 9-1) refers only to "freedom to manifest one ’ s religion or belief". In so doing, it recognises that in democratic societies, in which several religions coexist within one and the same population, it may be necessary to place restrictions on this freedom in order to reconcile the interests of the various groups and ensure that everyone ’ s beliefs are respected. 34. According to the Government, such restrictions were to be found in the Greek legal system. Article 13 of the 1975 Constitution forbade proselytism in respect of all religions without distinction; and section 4 of Law no. 1363/1938, which attached a criminal penalty to this prohibition, had been upheld by several successive democratic governments notwithstanding its historical and political origins. The sole aim of section 4 was to protect the beliefs of others from activities which undermined their dignity and personality. 35. The Court will confine its attention as far as possible to the issue raised by the specific case before it. It must nevertheless look at the foregoing provisions, since the action complained of by the applicant arose from the application of them (see, mutatis mutandis, the de Geouffre de la Pradelle v. France judgment of 16 December 1992, Series A no. 253-B, p. 42, para. 31). B. Application of the principles 36. The sentence passed by the Lasithi Criminal Court and subsequently reduced by the Crete Court of Appeal (see paragraphs 9-10 above) amounts to an interference with the exercise of Mr Kokkinakis ’ s right to "freedom to manifest [his] religion or belief". Such an interference is contrary to Article 9 (art. 9) unless it is "prescribed by law", directed at one or more of the legitimate aims in paragraph 2 (art. 9-2) and "necessary in a democratic society" for achieving them. 1. "Prescribed by law" 37. The applicant said that his submissions relating to Article 7 (art. 7) also applied to the phrase "prescribed by law". The Court will therefore examine them from this point of view. 38. Mr Kokkinakis impugned the very wording of section 4 of Law no. 1363/1938. He criticised the absence of any description of the "objective substance" of the offence of proselytism. He thought this deliberate, as it would tend to make it possible for any kind of religious conversation or communication to be caught by the provision. He referred to the risk of "extendibility" by the police and often by the courts too of the vague terms of the section, such as "in particular" and "indirect attempt" to intrude on the religious beliefs of others. Punishing a non-Orthodox Christian even when he was offering "moral support or material assistance" was tantamount to punishing an act that any religion would prescribe and that the Criminal Code required in certain emergencies. Law no. 1672/1939 (see paragraph 16 above) had, without more, stripped the initial wording of section 4 of its "repetitive verbiage"; it had retained all the "extendible, catch-all" expressions, merely using a more concise but equally "pedantic" style designed to ensure that non-Orthodox Christians were permanently gagged. Consequently, no citizen could regulate his conduct on the basis of this enactment. Furthermore, section 4 of Law no. 1363/1938 was incompatible with Article 13 of the Constitution. 39. The Government, on the other hand, maintained that section 4 defined proselytism precisely and specifically; it listed all the ingredients of the offence. The use of the adverbial phrase "in particular" was of no importance, as it related only to the means by which the offence could be committed; indicative lists of this kind were, moreover, commonly included in criminal statutes. Lastly, the objective substance of the offence was not lacking but consisted in the attempt to change the essentials of the religious beliefs of others. 40. The Court has already noted that the wording of many statutes is not absolutely precise. The need to avoid excessive rigidity and to keep pace with changing circumstances means that many laws are inevitably couched in terms which, to a greater or lesser extent, are vague (see, for example and mutatis mutandis, the Müller and Others v. Switzerland judgment of 24 May 1988, Series A no. 133, p. 20, para. 29). Criminal-law provisions on proselytism fall within this category. The interpretation and application of such enactments depend on practice. In this instance there existed a body of settled national case-law (see paragraphs 17-20 above). This case-law, which had been published and was accessible, supplemented the letter of section 4 and was such as to enable Mr Kokkinakis to regulate his conduct in the matter. As to the constitutionality of section 4 of Law no. 1363/1938, the Court reiterates that it is, in the first instance, for the national authorities, and in particular the courts, to interpret and apply domestic law (see, as the most recent authority, the Hadjianastassiou v. Greece judgment of 16 December 1992, Series A no. 252, p. 18, para. 42). And the Greek courts that have had to deal with the issue have ruled that there is no incompatibility (see paragraph 21 above). 41. The measure complained of was therefore "prescribed by law" within the meaning of Article 9 para. 2 (art. 9-2) of the Convention. 2. Legitimate aim 42. The Government contended that a democratic State had to ensure the peaceful enjoyment of the personal freedoms of all those living on its territory. If, in particular, it was not vigilant to protect a person ’ s religious beliefs and dignity from attempts to influence them by immoral and deceitful means, Article 9 para. 2 (art. 9-2) would in practice be rendered wholly nugatory. 43. In the applicant ’ s submission, religion was part of the "constantly renewable flow of human thought" and it was impossible to conceive of its being excluded from public debate. A fair balance of personal rights made it necessary to accept that others ’ thought should be subject to a minimum of influence, otherwise the result would be a "strange society of silent animals that [would] think but ... not express themselves, that [would] talk but ... not communicate, and that [would] exist but ... not coexist". 44. Having regard to the circumstances of the case and the actual terms of the relevant courts ’ decisions, the Court considers that the impugned measure was in pursuit of a legitimate aim under Article 9 para. 2 (art. 9-2), namely the protection of the rights and freedoms of others, relied on by the Government. 3. "Necessary in a democratic society" 45. Mr Kokkinakis did not consider it necessary in a democratic society to prohibit a fellow citizen ’ s right to speak when he came to discuss religion with his neighbour. He was curious to know how a discourse delivered with conviction and based on holy books common to all Christians could infringe the rights of others. Mrs Kyriakaki was an experienced adult woman with intellectual abilities; it was not possible, without flouting fundamental human rights, to make it a criminal offence for a Jehovah ’ s Witness to have a conversation with a cantor ’ s wife. Moreover, the Crete Court of Appeal, although the facts before it were precise and absolutely clear, had not managed to determine the direct or indirect nature of the applicant ’ s attempt to intrude on the complainant ’ s religious beliefs; its reasoning showed that it had convicted the applicant "not for something he had done but for what he was". The Commission accepted this argument in substance. 46. The Government maintained, on the contrary, that the Greek courts had based themselves on plain facts which amounted to the offence of proselytism: Mr Kokkinakis ’ s insistence on entering Mrs Kyriakaki ’ s home on a false pretext; the way in which he had approached her in order to gain her trust; and his "skilful" analysis of the Holy Scriptures calculated to "delude" the complainant, who did not possess any "adequate grounding in doctrine" (see paragraphs 9-10 above). They pointed out that if the State remained indifferent to attacks on freedom of religious belief, major unrest would be caused that would probably disturb the social peace. 47. The Court has consistently held that a certain margin of appreciation is to be left to the Contracting States in assessing the existence and extent of the necessity of an interference, but this margin is subject to European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court ’ s task is to determine whether the measures taken at national level were justified in principle and proportionate. In order to rule on this latter point, the Court must weigh the requirements of the protection of the rights and liberties of others against the conduct of which the applicant stood accused. In exercising its supervisory jurisdiction, the Court must look at the impugned judicial decisions against the background of the case as a whole (see, inter alia and mutatis mutandis, the Barfod v. Denmark judgment of 22 February 1989, Series A no. 149, p. 12, para. 28). 48. First of all, a distinction has to be made between bearing Christian witness and improper proselytism. The former corresponds to true evangelism, which a report drawn up in 1956 under the auspices of the World Council of Churches describes as an essential mission and a responsibility of every Christian and every Church. The latter represents a corruption or deformation of it. It may, according to the same report, take the form of activities offering material or social advantages with a view to gaining new members for a Church or exerting improper pressure on people in distress or in need; it may even entail the use of violence or brainwashing; more generally, it is not compatible with respect for the freedom of thought, conscience and religion of others. Scrutiny of section 4 of Law no. 1363/1938 shows that the relevant criteria adopted by the Greek legislature are reconcilable with the foregoing if and in so far as they are designed only to punish improper proselytism, which the Court does not have to define in the abstract in the present case. 49. The Court notes, however, that in their reasoning the Greek courts established the applicant ’ s liability by merely reproducing the wording of section 4 and did not sufficiently specify in what way the accused had attempted to convince his neighbour by improper means. None of the facts they set out warrants that finding. That being so, it has not been shown that the applicant ’ s conviction was justified in the circumstances of the case by a pressing social need. The contested measure therefore does not appear to have been proportionate to the legitimate aim pursued or, consequently, "necessary in a democratic society ... for the protection of the rights and freedoms of others". 50. In conclusion, there has been a breach of Article 9 (art. 9) of the Convention. II. ALLEGED VIOLATION OF ARTICLE 7 (art. 7) 51. Mr Kokkinakis also relied on Article 7 (art. 7), which provides: "1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. 2. This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations." In his submission, for a criminal provision to be compatible with this Article (art. 7) it must be sufficiently precise and clear (see paragraphs 37-38 above). This was not the case, he said, with section 4 of Law no. 1363/1938. 52. The Court points out that Article 7 para. 1 (art. 7-1) of the Convention is not confined to prohibiting the retrospective application of the criminal law to an accused ’ s disadvantage. It also embodies, more generally, the principle that only the law can define a crime and prescribe a penalty ( nullum crimen, nulla poena sine lege ) and the principle that the criminal law must not be extensively construed to an accused ’ s detriment, for instance by analogy; it follows from this that an offence must be clearly defined in law. This condition is satisfied where the individual can know from the wording of the relevant provision and, if need be, with the assistance of the courts ’ interpretation of it, what acts and omissions will make him liable. It appears that this was indeed so in the present case; on this point the Court refers to paragraphs 40-41 of this judgment. 53. In conclusion, there has been no breach of Article 7 (art. 7) of the Convention. III. ALLEGED VIOLATION OF ARTICLE 10 (art. 10) 54. The applicant further relied on his freedom of expression, as secured in Article 10 (art. 10). His conviction, he said, struck not only at the dissemination of his religious opinions but also at that of general socio-philosophical opinions, since the Crete Court of Appeal had noted that he had talked to Mrs Kyriakaki about the politician Olof Palme and had expounded pacifist views. 55. Having regard to its decision on Article 9 (art. 9) (see paragraph 50 above), the Court, like the Commission, considers it unnecessary to examine this complaint. IV. ALLEGED VIOLATION OF ARTICLE 14 TAKEN TOGETHER WITH ARTICLE 9 (art. 14+9) 56. In his memorial of 5 August 1992 the applicant also claimed to be the victim of discrimination contrary to Article 14 taken together with Article 9 (art. 14+9). He submitted that discrimination arose from the defects in section 4 of Law no. 1363/1938 or from the use made of it. 57. Although not raised before the Commission, this complaint relates to the same facts as do those made under Articles 7 and 9 (art. 7, art. 9); having regard to the conclusion in paragraph 50 above, however, the Court holds that it is unnecessary to deal with it. V. APPLICATION OF ARTICLE 50 (art. 50) 58. 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." 59. At the hearing the applicant sought, firstly, compensation in the amount of 500,000 drachmas (GRD) for non-pecuniary damage. The Court considers that he has sustained such damage and that, notwithstanding the Government ’ s opinion to the contrary, a finding of a breach is not sufficient to compensate him for it. Making its assessment on an equitable basis as required by Article 50 (art. 50), it awards him GRD 400,000 under this head. 60. For costs and expenses relating to the proceedings in Greece and before the Convention institutions Mr Kokkinakis sought the sum of GRD 2,789,500, of which he provided particulars. The Government judged this amount to be excessive. More especially, they contested the need (a) for the applicant to be represented by two lawyers in the Greek courts and before the European Court and for him to be defended by Athenian lawyers in the Cretan courts; and (b) for Mr Kokkinakis to have attended the Court of Cassation hearing. Like the Delegate of the Commission, the Court nevertheless finds the claim reasonable, and consequently allows it in full. | The Court held that there had been a violation of Article 9 of the Convention, finding that the conviction had not been shown to have been justified in the circumstances of the case by a pressing social need. It noted in particular that he Greek courts had merely reproduced the wording of the law that made proselytism illegal without sufficiently specifying in what way the applicant had attempted to convince his neighbour by improper means. |
338 | Freedom of expression (Article 10) | II. RELEVANT DOMESTIC LAW AND PRACTICE A. The Police Act 42. Under section 14 of the Police Act ( poliisilaki, polislagen; Law no. 493/1995, as in force at the relevant time), at the request of the occupant of domestic or public premises or his or her representative, police officers had the right to remove anyone who unlawfully intruded, entered in secret or by diversion, or concealed himself or herself therein or neglected an order to leave. Police officers had the right to remove anyone with permission to be in an area or place referred to above if he or she disturbed the domestic or public peace of other persons or caused considerable disturbance in other ways and there were reasonable grounds for suspecting that the disturbance would recur. If it was likely that removal would not prevent the disturbance from recurring, police officers had the right to apprehend the person causing the disturbance and keep him or her in custody. The apprehended person could be kept in custody only for as long as the disturbance was likely to recur, but no longer than twelve hours after being apprehended. 43. Pursuant to section 18(1) of the Police Act, police officers had the right to cordon off, close or clear a place or area in public use, or to prohibit or restrict movement there, if this was necessary to maintain public order and security, to secure an investigation, or to protect measures taken at the scene of an accident, the privacy of persons subjected to those measures and any endangered property. 44. Section 19 of the Police Act provided that police officers had the right to order a crowd to disperse or move if the gathering threatened public order and security or obstructed traffic. If an order to disperse or move was not obeyed, police officers had the right to use force to disperse the crowd and to apprehend non-compliant persons. Apprehended persons had to be released as soon as the purpose of the measure had been served, but no later than twelve hours after being apprehended. 45. A new Police Act ( poliisilaki, polislagen; Law no. 872/2011) came into force on 1 January 2014. Chapter 2, sections 5, 8 and 9, of the new Act contain the same regulations, including that an apprehended person may be kept in custody only for as long as the disturbance is likely to recur, but no longer than twelve hours after being apprehended. B. The Coercive Measures Act 46. Chapter 1, section 2, second paragraph, of the Coercive Measures Act ( pakkokeinolaki, tvångsmedelslagen; Law no. 450/1987, as in force at the relevant time) provided that, if the prerequisites existed for arrest, a police officer could apprehend a person suspected of an offence even without an arrest warrant if the arrest could otherwise be endangered. The police officer had, without delay, to notify an official with the power of arrest of this apprehension. Said official had to decide, within twenty-four hours of the apprehension, whether the apprehended person was to be released or arrested. 47. A new Coercive Measures Act ( pakkokeinolaki, tvångsmedelslagen; Law no. 806/2011) came into force on 1 January 2014. Chapter 2, section 1, of the new Act provides as follows. “A police officer may, for the purpose of clarifying an offence, apprehend a person suspected of an offence who is caught in the act or trying to escape. A police officer may also apprehend a suspect whose arrest or remand has been ordered. In addition, a police officer may, during the main hearing of a court or during the consideration of the decision, apprehend a defendant whose remand has been requested in connection with the judgment, if the remand is necessary in order to prevent him or her from leaving. If the prerequisites exist for arrest, a police officer may apprehend a suspect even without an arrest warrant if the arrest may otherwise be endangered. The police officer shall notify without delay an official with the power of arrest of this apprehension. Said official with the power of arrest shall decide, within twenty-four hours of the apprehension, whether the apprehended person is to be released or arrested. Prolonging the apprehension for more than twelve hours requires the existence of the prerequisites for arrest.” C. The Criminal Investigation Act 48. According to section 21 of the Criminal Investigation Act ( esitutkintalaki, förundersökningslagen; Law no. 449/1987, as in force at the relevant time), a suspect who had not been arrested or remanded could not be detained as part of the criminal investigation for longer than twelve hours at a time or, if the prerequisites for arrest under the Coercive Measures Act were fulfilled, for longer than twenty-four hours. 49. Pursuant to section 24, second paragraph, of the same Act, questioning could be conducted between 10 p.m. and 7 a.m. only if, “1. the person being questioned requests this; 2. the matter is under simplified investigation for which the person being questioned is required to stay or to arrive immediately; or 3. there is some other pressing reason for it.” 50. The same rules are included in Chapter 6, section 5, subsection 2 and Chapter 7, section 5, second paragraph, of the new Criminal Investigation Act ( esitutkintalaki, förundersökningslagen; Law no. 805/2011) which came into force on 1 January 2014. D. The Penal Code 51. Chapter 16, section 4 of the Penal Code ( rikoslaki, strafflagen; Law no. 39/1889, as amended by Law no. 563/1998) provides as follows. “A person who (1) fails to obey an order or prohibition issued by a police officer, within his or her competence, for the maintenance of public order or security or the performance of a duty; (2) refuses to provide a police officer with the identifying information referred to in section 10, subsection 1, of the Police Act; (3) fails to obey a police officer’s clearly visible signal or order for stopping or moving a vehicle, as referred to in section 21 of the Police Act; (4) neglects the duty to provide assistance, as referred to in section 45 of the Police Act; or (5) alerts the police without reason or, by providing false information, hinders police operations; shall be sentenced, unless a more severe penalty for the act has been provided elsewhere in the law, for contumacy towards the police to a fine or to imprisonment of at most three months.” 52. Chapter 6, section 12, of the same Code provides the following. “A court may waive punishment if (1) the offence, when assessed as a whole, taking into account its harmfulness or the culpability of the perpetrator, is to be deemed of minor significance; (2) the perpetrator was under the age of 18 when the offence was committed and the act is deemed to be the result of lack of understanding or of imprudence; (3) due to special reasons related to the act or the perpetrator the act is deemed to be an excusable act; (4) punishment is deemed to be unreasonable or pointless in particular taking into account the factors referred to above in section 6, paragraph 3, and section 7, or action taken by the social security and health authorities; or (5) the offence would not have an essential effect on the total sentence due to the provisions on sentencing to a joint punishment.” E. The Criminal Records Act 53. Section 2, first and second paragraphs, of the Criminal Records Act ( rikosrekisterilaki, straffregisterlagen; Law no. 770/1993) provide as follows. “On the basis of notices by courts of law, data shall be entered in the criminal records on decisions whereby a person in Finland has been sentenced to unsuspended imprisonment; community service; suspended imprisonment; suspended imprisonment supplemented with a fine, community service or supervision; juvenile punishment; a fine instead of juvenile punishment; dismissal from office; or whereby sentencing has been waived under Chapter 3, section 4, of the Penal Code (no. 39/1889). However, no entries shall be made in the criminal records on the conversion of fines into imprisonment, nor on imprisonment imposed under the Civilian Service Act (no. 1723/1991). Data on fines imposed on the basis of the provisions governing corporate criminal liability shall also be entered in the criminal records. Furthermore, entries shall be made in the criminal records, as provided by Decree, on court decisions whereby a Finnish citizen or a foreigner permanently resident in Finland has been sentenced abroad to a penalty equivalent to one mentioned in paragraph 1.” IV. COMPARATIVE LAW 57. From the information available to the Court, including a comparative-law survey of thirty-four Council of Europe member States (Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Cyprus, the Czech Republic, Estonia, France, Georgia, Germany, Greece, Hungary, Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, the Republic of Moldova, the Netherlands, Poland, Portugal, Romania, Russia, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland, the former Yugoslav Republic of Macedonia, Ukraine and the United Kingdom), it appeared that all of the surveyed States applied general criminal-law provisions to journalists covering demonstrations. No special status regarding the arrest, detention and conviction of journalists emerged. Members of the media therefore remained liable for offences committed by them during demonstrations in the same way as participants in demonstrations. While case-law similar to the present case was found in five of the surveyed States – Austria, Hungary, Spain, Sweden and the former Yugoslav Republic of Macedonia – it did not allow for the drawing of any general conclusions. 58. Concerning police powers, the vast majority of surveyed States did not regulate the specific issue of news-gathering during violent demonstrations. General guidelines or regulations governing police and media relations were found in twelve member States ( Belgium, Bulgaria, Germany, Greece, Hungary, Luxembourg, the Republic of Moldova, the Netherlands, Russia, Spain, Sweden and the United Kingdom) whereby, as a general rule, members of the media covering events were encouraged to identify themselves as such in order to be distinguished from participants. However, while this singling out of members of the media was aimed at enabling and facilitating journalistic activity, it did not have the effect of conferring any sort of immunity on journalists when they failed to comply with police orders to leave the scene of a demonstration. Only a limited number of member States ( Georgia, the Republic of Moldova, Russia and Serbia) dealt with the issue of news-gathering during demonstrations by way of specific regulations. In these member States, journalists were either granted protected areas from which they could cover ongoing demonstrations or were informed of the safest area in which to carry out their activities. Nonetheless, the overall balance of interests appeared to be struck in favour of preserving public order and safety by following police instructions. 59. While a large majority of the surveyed member States had professional codes of conduct or codes of ethics for journalists, they did not contain specific provisions relating to the relationship between journalists and the police during demonstrations. These codes rather focused on investigative techniques and journalistic sources as well as protecting third-party privacy. THE LAW ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 60. The applicant complained under Article 10 of the Convention that his freedom of expression had been violated. Article 10 of the Convention reads as follows: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” A. The Chamber judgment 61. The Chamber considered that, since the applicant’s apprehension and conviction had been the consequence of his conduct as a newspaper photographer and journalist when disobeying the police, the presumption was that there had been an interference with his right to freedom of expression. The Chamber further found that the parties agreed that the impugned measures had a basis in Finnish law, in particular in Chapter 16, section 4, of the Penal Code. The interference was thus “prescribed by law” and it pursued several legitimate aims, namely the protection of public safety as well as the prevention of disorder and crime. 62. As to its necessity in a democratic society, the Chamber noted that the applicant had waived his right to use the separate, secure area for the press when he had decided to stay with the demonstrators even after the orders to disperse. It was established that the applicant had been aware of the orders of the police to leave the scene but had decided to ignore them. The applicant could have left the scene and moved to the secure press area without any consequences at any time during the cordon. By not doing so, the applicant had knowingly taken the risk of being apprehended for contumacy. 63. For the Chamber it was not entirely clear at what stage the police had learned that the applicant was a journalist. It appeared that the applicant had failed to make clear efforts to identify himself as a journalist. Moreover, it did not appear that the applicant had in any way been prevented from taking photographs of the demonstration. Nor had his camera or other equipment been confiscated and he had been allowed to keep all the photographs he had taken and to use them unrestrictedly. 64. The Chamber considered that the demonstration had been a matter of legitimate public interest, having regard in particular to its nature. The District Court had analysed the matter from the Article 10 point of view, balancing the different interests against each other, and had found that there had been a pressing social need to take the impugned measures against the applicant. The Chamber also attached weight to the fact that no penalty was imposed on the applicant as his act had been considered “excusable” by the domestic courts. Having regard to all the factors, the Chamber considered that the domestic courts had struck a fair balance between the competing interests at stake. Accordingly, there had been no violation of Article 10 of the Convention. B. The parties’ submissions 1. The applicant 65. The applicant submitted that there had been an interference with his right to freedom of expression because the police had asked him to leave the area where the demonstration was taking place, he had been apprehended and had been unable during his detention of seventeen and a half hours to transmit information, and because he had been suspected, charged and convicted of a crime which constituted a “chilling effect” on his rights and work. 66. As to whether the interference had been prescribed by law, the applicant claimed that the police had exceeded their statutory powers or abused their discretionary powers at several different stages. First of all, the disproportionality of the police’s categorical order for the crowd to disperse showed that it was not in accordance with Finnish law. The police decision to treat the demonstration as a riot was also questionable as the extent of aggressive behaviour was relatively limited, involving only a few individuals. Secondly, the applicant’s detention had been illegal as it had been overnight and had lasted for about seventeen and a half hours. Apprehended persons should be released as soon as possible but no later than twelve hours after being apprehended. The police would have been able to detain him for longer than twelve hours only if he had been suspected of rioting. The police had first apprehended the applicant for contumacy towards the police, but later, according to the applicant, the reason for his apprehension had been changed to rioting. As the applicant had clearly not even participated in the demonstration, his conduct could not fulfil the definition of rioting. The police had not therefore had sufficient reason to apprehend him and he should have been released immediately or at the latest within twelve hours. Moreover, the applicant should have been interrogated or interviewed without delay as interrogations could be conducted even between 10 p.m. and 7 a.m. if the suspect so requested or if there was another pressing reason. 67. The applicant also considered that the actual criminal conviction was not based on the law as he had not been aware that he might be found guilty of an offence by continuing to take photographs in the cordoned-off area. As the domestic courts had failed to give reasons in their judgments, the legality issues were not assessed by them. Therefore, the applicant maintained that the interference by the police, the prosecutor and the domestic courts had had no basis in Finnish law. 68. The applicant was prepared to accept that the interference might have pursued a legitimate aim. 69. As to the necessity, the applicant pointed out that his task had been to impart information within a reasonable time about the demonstration. He had been working both on an in ‑ depth story on the conduct of each side during the demonstration and on publishing online information about the demonstration immediately after its termination. The applicant claimed that there had been no separate and secure press area for journalists at the site of the demonstration. He had contacted all the main media organisations and found out that none of the journalists present had been instructed to go to a secure area and no one had in fact seen such an area. The view from outside into the cordoned-off area had been blocked by a dense, several rows deep, line of police officers, police minibuses and police buses. At 7.15 p.m. the police had cordoned off an even larger area, which had made it even more difficult to follow the events. There could not have been a secured area for journalists because originally the demonstration was to be a march and therefore a static press area would not have served any purpose. Even if there were such an area, its use should have been optional as it was not up to the State authorities to decide from which angle journalists should cover the event. 70. The applicant further maintained that the allegation that he had not identified himself as a journalist was contrary to common sense. He had had a press badge around his neck, which fact had been testified by a witness before the District Court. He had been carrying two cameras of a sort which, in 2006, were only used by professional journalists, and a camera bag. From the pre-trial investigation report it appeared that the applicant had identified himself as a journalist to the apprehending officer. At the end of the demonstration the applicant had stood between the demonstrators and the police line, and had thus clearly been separated from the former. At this time the situation had been calm and under police control. After detaining the demonstrators, a police officer had shouted “Get the photographer!” and the applicant had been apprehended while taking photographs. While in the police custody cell, he had actively shouted to passing police officers that he was a journalist. 71. The applicant argued that his detention of seventeen and a half hours had been disproportionate. The police could have released him at the scene or at the latest within twelve hours. The footage the applicant had gathered during the demonstration was already “old” by the time he had been released. The police had released minors after a few hours of detention, and the applicant could also have been released then. The police could also have discontinued the pre-trial investigation in his case and the prosecutor could have dropped the charges against him. However, the State considered it important that the applicant be prosecuted and possibly convicted of contumacy. The State had convicted him for carrying out his work even though he had already suffered the consequences of the police’s concrete actions. The District Court judgment and the duration of his detention would have a clear “chilling effect” on the work of journalists. The domestic courts had not assessed whether the interference had had a “pressing social need”. The District Court had not balanced the competing interests properly but had merely stated that the termination of the demonstration by ordering the crowd to disperse had been necessary. It had not assessed the nature of the “pressing social need” to remove the applicant from the scene. It had also failed to take into account the case-law of the Court according to which such a judgment would have a “chilling effect” on journalists. 2. The Government 72. The Government agreed with the Chamber’s conclusion to the effect that there had been no violation of Article 10 of the Convention in the present case. 73. In the Government’s view, there had not been an interference with the applicant’s right to freedom of expression. They noted that the police had not prevented the applicant from covering the event. The reason for the applicant’s apprehension had not been the fact that he was a photographer but the fact that he had repeatedly failed to obey consistent and clear police orders to leave the site of the demonstration. The police orders had concerned everyone at the scene. Evidence also showed that the applicant had been ordered personally by a police officer to leave the scene, after which he had consulted his superior on whether he should stay despite the police orders or not. The applicant had not been ordered to stop taking photographs at any time, even at very close range, up to his apprehension. As soon as the police had found out that the applicant was a member of the press, his camera, memory cards and other equipment had been immediately treated as journalistic sources and were not confiscated. He had been able to keep the photographs and no restrictions on the use of the photographs had been imposed on him by any authority at any stage. The applicant had been the seventh detainee to be interrogated and the sixth to be released of the eighty-one detainees interrogated on the following day. After releasing the minors, the police had turned their attention to the applicant as soon as possible. 74. The Government further pointed out that none of the domestic proceedings concerning the applicant, nor the current proceedings before the Court, concerned the applicant’s actions as a photographer. The matter at stake rather concerned his actions as part of a crowd which had systematically – after being advised, urged and finally ordered to disperse – refused to obey the police. It was for this reason that the domestic courts had found the applicant guilty of contumacy towards the police. Furthermore, the District Court had decided not to impose any sanction on the applicant as, in its opinion, the applicant had found himself in a conflictual situation. He had to choose to abide, on the one hand, by the expectations imposed on him by the law and the police and, on the other hand, by the expectations imposed on him by his employer who had sent him to cover the event and who had advised him to stay at the scene after he had personally been ordered to leave. Given this understandable difficulty, the District Court had deemed the applicant’s refusal to obey the police to be comparable to “an excusable act”. 75. In the alternative, should the Court find that there had been an interference with the applicant’s right to freedom of expression, the Government argued that the interference was “prescribed by law”. The interference had also had several legitimate aims, namely the protection of public safety as well as the prevention of disorder and crime, as found by the Chamber. 76. As to the necessity of the interference in a democratic society, the Government agreed with the Chamber’s finding that the domestic courts had struck a fair balance between the competing interests at stake. They noted that members of the media had been able to report on and photograph the event freely until its end, even at extremely close range to the police. There had also been a separate area for media representatives. However, the escalation of violence at the site of the Smash ASEM demonstration had resulted in the police arriving in numerous vehicles, some of which may have blocked visibility from the secure area to parts of the site. It was uncontested that the applicant had personally heard the police orders to disperse by 8.30 p.m. and that he had seen people heading towards the exits. At around 9 p.m., when the police had given the final orders to disperse, there had been two other photographers at the demonstration site but they had left the scene at around 9.15 p.m. No measures had been imposed on them at any stage. The police orders had been given in order to calm the situation, to restore public order and, in particular, to ensure public safety. When at 9.15 p.m. the police had ordered the applicant to leave he had refused to do so, stating that, as a photographer, the order did not apply to him. At that time those members of the crowd who had shown resistance had been detained and the event had come to an end. Some minutes later the police had apprehended the applicant as it had been clear that he was determined to disobey the police. As the applicant had consulted his superior by telephone asking for advice on whether to stay or leave, he had clearly understood that the police orders applied to him as well. The District Court had also found it established that the police orders had clearly applied to everybody, thus the applicant’s apprehension could not have come as a surprise to him. 77. The Government noted that the purpose of the applicant’s apprehension had not been to hinder his freedom of expression but to investigate the offence he was suspected of having committed. He had been able to use all the photographs he had taken at the event. The applicant’s apprehension and detention had thus been justifiable, necessary and proportionate as the police had been reacting to a violent demonstration for which there had existed a risk of further violence and disruption. The alleged interference was thus necessary in a democratic society. 78. The Government stressed the importance of equal treatment and equality before the law, as guaranteed by the Constitution of Finland and Article 14 of the Convention. They maintained that the applicant was not entitled to preferential or different treatment in comparison to other members of the crowd present at the demonstration. The police orders had been given without discrimination as to status or profession and had not been aimed at preventing the applicant’s professional activity. The aim of the police had been to calm the situation and to restore public order. Moreover, the District Court had established that the applicant had not shown his press badge to the apprehending officer or the receiving police officer at the police station. He had only shown his badge on the bus taking him to the police station. The applicant himself had written in the article about the event that he had started to wear his badge visibly only after he had been detained. Therefore, the margin of appreciation afforded to the State in assessing the proportionality of measures allegedly infringing the applicant’s right to freedom of expression had not been affected as the applicant had failed to make clear efforts to identify himself as a journalist. 79. Finally, the Government argued that no “chilling effect” could be connected to the present case. The applicant had not been detained and convicted for his activities as a journalist but for systematically disobeying clear police orders. Several other journalists present at the event had chosen not to disobey the police. No sanctions had been imposed on the applicant as the District Court had deemed his actions to be comparable to “an excusable act”. Nor had he been ordered to pay any legal costs. C. The Court’s assessment 1. Scope of the case before the Grand Chamber 80. In his written submissions to the Grand Chamber, the applicant claimed that his detention had been illegal as it had lasted overnight and for about eighteen hours. He claimed that, as the police did not have sufficient prerequisites for his arrest, he should have been released at the latest within twelve hours after the apprehension. For this reason his detention exceeding twelve hours was not “prescribed by law” (see paragraph 66 above). The Government did not comment on this complaint. 81. According to the Court’s constant case-law, the “case” referred to the Grand Chamber is the application as it has been declared admissible by the Chamber (see, among other authorities, K. and T. v. Finland [GC], no. 25702/94, § 141, ECHR 2001 ‑ VII). The applicant lodged the complaint that his detention had been illegal in so far as it exceeded twelve hours for the first time in his submissions to the Grand Chamber. The Chamber, when examining the necessity of the interference with the applicant’s right under Article 10, had regard to the Government’s argument that the duration of the applicant’s detention of about eighteen hours was explained by the fact that he was detained late at night and that domestic law prohibited interrogations between 10 p.m. and 7 a.m. (see paragraph 48 of the Chamber judgment ). However, the applicant had not complained before the Chamber that his detention for a duration exceeding twelve hours was unlawful. This complaint did not form part of the application which was declared admissible by the Chamber, and therefore falls outside the scope of the examination by the Grand Chamber. The Court will therefore limit its examination to the applicant’s complaint as declared admissible by the Chamber, namely that his apprehension, detention and conviction entailed an unjustified interference with his right to freedom of expression as guaranteed by Article 10 of the Convention. 2. Whether there was an interference 82. The Government primarily claimed that there had been no interference with the applicant’s right to freedom of expression in the instant case. 83. The applicant was apprehended by the police in the context of a demonstration, detained for about eighteen hours, and was later charged and found guilty by the domestic courts of disobeying the police. However, no penalty was imposed on him since the offence was considered as “an excusable act”. Even if the impugned measures were not aimed at the applicant as a journalist but were the consequence of his failure to comply with police orders to disperse, addressed to all those present in the cordoned-off area, the exercise of his journalistic functions had been adversely affected as he was present at the demonstration as a newspaper photographer in order to report on the events (see, mutatis mutandis, Gsell v. Switzerland, no. 12675/05, § 49, 8 October 2009). The Court therefore accepts that there was an interference with his right to freedom of expression. 3. Whether the interference was prescribed by law 84. The Court notes that the expression “prescribed by law” within the meaning of Article 10 § 2 of the Convention 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, among other authorities, Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 140, ECHR 2012, and Rotaru v. Romania [GC], no. 28341/95, § 52, ECHR 2000-V). 85. The parties disagree as to whether or not the interference was “prescribed by law”. The Court notes that the applicant’s main argument concerns the alleged illegality of his detention as far as it exceeded twelve hours, which issue falls outside the scope of the case before the Grand Chamber (see paragraph 81 above). For the rest, it appears from the applicant’s submissions that he does not, as such, argue that his apprehension, detention and conviction had no legal basis in Finnish law but rather complains of how the relevant provisions of domestic law were applied by the national authorities and courts in his case. However, it is primarily for the national authorities, notably the courts, to interpret and apply domestic law (see Kopp v. Switzerland, 25 March 1998, § 59, Reports of Judgments and Decisions 1998-II, and Kruslin v. France, 24 April 1990, § 29, Series A no. 176-A). None of the applicant’s arguments discloses any indication that the domestic authorities applied the law in an arbitrary manner. The Court is therefore satisfied that the interference complained of, encompassing the applicant’s apprehension, detention and conviction, had a legal basis in Finnish law, namely in section 19 of the Police Act, in Chapter 1, section 2, second paragraph, of the Coercive Measures Act and in Chapter 16, section 4, of the Penal Code. The Court therefore concludes that the interference was “prescribed by law”. 4. Whether the interference pursued a legitimate aim 86. It has not been disputed that the interference pursued several legitimate aims within the meaning of Article 10 § 2 of the Convention, namely the protection of public safety and the prevention of disorder and crime. 5. Whether the interference was necessary in a democratic society (a) General principles 87. The general principles concerning the necessity of an interference with freedom of expression were summarised in Stoll v. Switzerland ([GC], no. 69698/01, § 101, ECHR 2007 ‑ V) and were reiterated more recently in Animal Defenders International v. the United Kingdom ([GC], no. 48876/08, § 100, ECHR 2013) and Morice v. France ([GC], no. 29369/10, § 124, ECHR 2015): “(i) Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no ‘democratic society’. As set forth in Article 10, this freedom is subject to exceptions, which ... must, however, be construed strictly, and the need for any restrictions must be established convincingly ... (ii) The adjective ‘necessary’, within the meaning of Article 10 § 2, implies the existence of a ‘pressing social need’. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a ‘restriction’ is reconcilable with freedom of expression as protected by Article 10. (iii) The Court’s task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether it was ‘proportionate to the legitimate aim pursued’ and whether the reasons adduced by the national authorities to justify it are ‘relevant and sufficient’... In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they relied on an acceptable assessment of the relevant facts ...” This protection of Article 10 extends not only to the substance of the ideas and information expressed but also to the form in which they are conveyed (see Jersild v. Denmark, 23 September 1994, § 31, Series A no. 298). 88. The Court further emphasises the essential function the media fulfil in a democratic society. Although they must not overstep certain bounds, their duty is nevertheless to impart – in a manner consistent with their obligations and responsibilities – information and ideas on all matters of public interest (see Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 59, ECHR 1999-III; De Haes and Gijsels v. Belgium, 24 February 1997, § 37, Reports 1997 ‑ I; and Jersild, cited above, § 31). Not only do the media have the task of imparting such information and ideas, the public also has a right to receive them (see The Sunday Times v. the United Kingdom (no. 1), 26 April 1979, § 65, Series A no. 30). 89. In this connection, and with reference to the facts of the instant case, the crucial role of the media in providing information on the authorities’ handling of public demonstrations and the containment of disorder must be emphasised. The “watchdog” role of the media assumes particular importance in such contexts since their presence is a guarantee that the authorities can be held to account for their conduct vis-à-vis the demonstrators and the public at large when it comes to the policing of large gatherings, including the methods used to control or disperse protesters or to preserve public order. Any attempt to remove journalists from the scene of demonstrations must therefore be subject to strict scrutiny. 90. The Court also reiterates that the protection afforded by Article 10 of the Convention to journalists is subject to the proviso that they act in good faith in order to provide accurate and reliable information in accordance with the tenets of responsible journalism (see, mutatis mutandis, Bladet Tromsø and Stensaas, cited above, § 65; Fressoz and Roire v. France [GC], no. 29183/95, § 54, ECHR 1999 ‑ I; Kasabova v. Bulgaria, no. 22385/03, § § 61 and 63-68, 19 April 2011; and Times Newspapers Ltd v. the United Kingdom (nos. 1 and 2), nos. 3002/03 and 23676/03, § 42, ECHR 2009 ). In the Court’s case-law, the concept of responsible journalism has so far focused mainly on issues relating to the contents of a publication or an oral statement (see, for example, Bladet Tromsø and Stensaas, cited above, §§ 65-67; Fressoz and Roire, cited above, §§ 52-55; Krone Verlag GmbH v. Austria, no. 27306/07, §§ 46-47, 19 June 2012; Novaya Gazeta and Borodyanskiy v. Russia, no. 14087/08, § 37, 28 March 2013; Perna v. Italy [GC], no. 48898/99, § 47, ECHR 2003 ‑ V; Times Newspapers Ltd, cited above, § 45; Ungváry and Irodalom Kft v. Hungary, no. 64520/10, § 42, 3 December 2013; and Yordanova and Toshev v. Bulgaria, no. 5126/05, §§ 53 and 55, 2 October 2012 ) rather than on the public conduct of a journalist. However, the concept of responsible journalism, as a professional activity which enjoys the protection of Article 10 of the Convention, is not confined to the content of information which is collected and/or disseminated by journalistic means. That concept also embraces, inter alia, the lawfulness of the conduct of a journalist, including, and of relevance to the instant case, his or her public interaction with the authorities when exercising journalistic functions. The fact that a journalist has breached the law in that connection is a most relevant, albeit not decisive, consideration when determining whether he or she has acted responsibly. 91. The Court reiterates in this context that journalists who exercise their freedom of expression undertake “duties and responsibilities” (see Stoll, cited above, § 102, and Handyside v. the United Kingdom, 7 December 1976, § 49 in fine, Series A no. 24). It is to be noted in this connection that paragraph 2 of Article 10 does not guarantee a wholly unrestricted freedom of expression even with respect to media coverage of matters of serious public concern. In particular, and notwithstanding the vital role played by the media in a democratic society, journalists cannot, in principle, be released from their duty to obey the ordinary criminal law on the basis that, as journalists, Article 10 affords them a cast-iron defence (see, among other authorities and mutatis mutandis, Stoll, cited above, § 102; Bladet Tromsø and Stensaas, cited above, § 65; and Monnat v. Switzerland, no. 73604/01, § 66, ECHR 2006-X). In other words, a journalist cannot claim an exclusive immunity from criminal liability for the sole reason that, unlike other individuals exercising the right to freedom of expression, the offence in question was committed during the performance of his or her journalistic functions. (b) Application of the general principles to the applicant’s case 92. The Court notes that the applicant was apprehended, detained, charged and found guilty of having disobeyed the police. His apprehension took place in the context of the Smash ASEM demonstration in which he had participated as a photographer and journalist for the weekly magazine Suomen Kuvalehti. It is not in dispute that the demonstration attracted considerable media attention. 93. In contrast to many other cases brought by journalists under Article 10 of the Convention, including Stoll and further cases referred to in paragraphs 87 to 91 above, the present case does not concern the prohibition of a publication (public disclosure of certain information) or any sanctions imposed in respect of a publication. What is at stake in the present case are measures taken against a journalist who failed to comply with police orders while taking photos in order to report on a demonstration that had turned violent. 94. When assessing whether the measures taken against the applicant by the Finnish authorities were necessary, the Court will bear in mind that the interests to be weighed in the instant case, namely, the interest of the police in maintaining public order in the context of a violent demonstration and the interest of the public to receive information on an issue of general interest, are both public in nature (see, mutatis mutandis, Stoll, cited above, §§ 115 ‑ 16). It will examine the applicant’s apprehension, detention and conviction in turn, in order to determine whether the impugned interference, seen as a whole, was supported by relevant and sufficient reasons and was proportionate to the legitimate aims pursued. (i) Applicant’s apprehension 95. Regarding the applicant’s apprehension, the Court will have regard to whether the police orders were based on a reasonable assessment of the facts and whether the applicant was able to report on the demonstration. It will also have regard to the applicant’s conduct, including whether he identified himself as a journalist. 96. When the demonstration started, a core group of about fifty demonstrators, some 500 bystanders and some fifty journalists, including the applicant, had congregated at the starting-point of the march. As the demonstration turned violent, the police first prevented the crowd from marching but allowed a peaceful demonstration to be held on the spot. Later on the police sealed off the area around the demonstration and ordered the crowd to disperse. The police had made security preparations for the event by deploying 480 police and border-guard officers. The police had good reason to expect, on the basis of the risk assessment made by the Finnish Security Intelligence and their previous experience of riots which had taken place the same year, as well as in view of the tone of the posters inviting members of the public to “ bring even a little bit of mayhem to the streets of Helsinki” and the anonymity of the organiser of the demonstration (see paragraphs 12-16 above), that the demonstration might turn violent. Subsequently the District Court found that the police actions had been legal and that the police had had justifiable reasons to give the orders to disperse (see paragraph 37 above). The Court therefore sees no reason to doubt that the police orders were based on a reasonable assessment of the facts. Moreover, in the Court’s view, the preventive measures against the likelihood of the events turning violent, including police orders to leave the scene of the demonstration, were justified. The measures were directed not only at the “abstract” protection of public order – the protection of public safety as well as the prevention of disorder and crime – but also at the safety of individuals at or in the vicinity of the demonstration, including members of the media and thus also the applicant himself. 97. The Court will now examine whether the applicant was in any way prevented from doing his job as a journalist at any time during the Smash ASEM demonstration. The parties disagreed on whether a secure press area existed. It appears, however, that most journalists, about fifty of them at the beginning of the demonstration, remained in the area of the demonstration. They were not, as was the applicant not, asked by the authorities, at any point during the events, to use a separate area reserved for the press. Furthermore, the demonstration was of such a character – initially foreseen as a march along the route – that the violent events could and actually did take place in an “unpredicted” area. In such a situation there was no possibility whatsoever for the authorities to secure in advance an area close to such events. Consequently, for the Court it is not decisive whether such a secure area existed as all journalists seem to have been in the area of the demonstration and could work freely there. It cannot therefore be said that the applicant was as such prevented from reporting on the event. On the contrary, he was able to take photographs during the entire demonstration until the very moment he was apprehended. This is clearly seen, for example, from the DVD-recordings made of the demonstration as well as from the fact that the last photograph taken by the applicant was of his apprehending police officer. 98. Turning now to the applicant’s conduct, the Court notes that he was apprehended within the cordoned-off area where he was with the core group of demonstrators who were holding onto each other’s arms. It appears from the DVD-recordings that the applicant was dressed in dark clothing, which corresponded to the required “dress code” for the demonstrators. He was not wearing any distinctive clothing or other signs capable of identifying him as a journalist. He was not wearing, for example, a yellow waistcoat or jacket as were some of his journalist colleagues. Nor was there apparently any indication, for example on the camera the applicant used, that he worked for Suomen Kuvalehti. Nor was his press badge visible in the DVD-recordings or in any of the photographs in which the applicant appears. The applicant’s appearance did not therefore seem to allow him to be clearly distinguishable from the protesters. It is thus likely that, on the basis of his presence within the cordoned-off area, as well as of his appearance, he was not readily identifiable as a journalist prior to his apprehension. 99. It also remains unclear from the District Court’s judgment and the other material in the case file to which police officers the applicant identified himself as a journalist. It appears from the pre-trial investigation report that he did so to his apprehending officer, who stated during the pre-trial investigation that the applicant did not resist the apprehension and that he had asked to make a telephone call, which he had been allowed to do. When the apprehending police officer had asked for identification, the applicant had presented his press card (see paragraph 27 above). From this it can be deduced that the applicant was not wearing his press badge, or at least was not wearing it visibly so that he could be immediately identified as a journalist. Another police officer present during the applicant’s apprehension stated during the pre-trial investigation that the applicant did not resist the apprehension but that he did not hear the applicant identify himself as a journalist (ibid.). It has also not been established whether the applicant identified himself as a journalist when he was taken to the bus taking him to custody. Nevertheless, the Court considers that the police must have learned of his status as a journalist at the latest at the police station when the receiving police officer removed the applicant’s press card which, according to the applicant’s own submissions, he had “held up” and started to wear visibly on his chest only a while earlier (see paragraph 28 above). On the basis of this information, the Court considers that, had the applicant wished to be acknowledged as a journalist by the police, he should have made sufficiently clear efforts to identify himself as such either by wearing distinguishable clothing or keeping his press badge visible at all times, or by any other appropriate means. He failed to do so. The applicant’s situation was thus different from that of the journalist in Najafli v. Azerbaijan who was wearing a journalist’s badge on his chest and also had specifically told the police officers that he was a journalist (see Najafli v. Azerbaijan, no. 2594/07, § 67, 2 October 2012; see also, mutatis mutandis, Gsell, cited above, § 49 ). 100. Moreover, the applicant claimed that he was not aware of the police orders to disperse. The Court observes that the District Court found it established that the applicant had been aware of the orders of the police to leave the scene but had decided to ignore them (see paragraph 37 above). The applicant himself admitted before the District Court and in his submissions to this Court that he had heard the orders at around 8.30 p.m. (see paragraphs 24 and 37 above). This is also confirmed by the fact that the applicant then called his employer to discuss whether he should leave the area or not (see paragraph 24 above). For the Court, this fact shows that the applicant understood, or at least contemplated, that the order applied to him as well. In addition, the applicant conceded in his submissions to this Court that, about half an hour later, he was personally told to disperse by a police officer, but he replied to the police officer that he had decided to stay (see paragraph 25 above). This admission is in manifest contradiction with the applicant’s claim that he was not aware of the police orders to disperse. The applicant thus clearly knew what he was doing and it cannot therefore be accepted that he was unaware of the police orders. Moreover, as a journalist reporting on police actions, he had to be aware of the legal consequences disobeying police orders may entail. Therefore, the Court cannot but conclude that, by not obeying the orders given by the police, the applicant knowingly took the risk of being apprehended for contumacy towards the police. 101. The Court also finds it relevant that all other journalists except the applicant obeyed the police orders. Even the last one of them left the area after hearing the final warning which clearly indicated that if the persons present still did not disperse, they would be apprehended. As witnessed by this last remaining journalist during the District Court proceedings, he had taken his last photograph at 9.15 p.m. and left the area just two to three minutes before the applicant’s apprehension took place. No measures were imposed on these journalists at any point ( see paragraph 37 above). The applicant could also have left the scene and moved outside the police cordon without any consequences at any time during it. Moreover, nothing in the case file suggests that the applicant, had he obeyed the order given by the police to leave the cordoned-off area, could not have continued to exercise his professional assignment even in the immediate vicinity of the cordoned-off area where, as it later developed, the police broke up the crowd of demonstrators and apprehended the protesters. (ii) Applicant’s detention 102. The applicant was held in police detention for seventeen and a half hours. As already found by the Court, the issue of the alleged unlawfulness of the applicant’s detention exceeding twelve hours falls outside the scope of examination by the Grand Chamber (see paragraph 81 above). In addition, the applicant claimed that he should have been interrogated and released expeditiously. 103. The Government maintained that the length of the applicant’s detention was mainly explained by the fact that he had been detained late at night and that the domestic law prohibited interrogations between 10 p.m. and 7 a.m. The domestic law provided exceptions to this rule in section 24, second paragraph, of the Criminal Investigations Act (see paragraph 49 above). The Court observes that there is no information in the case file as to whether the applicant asked to be interrogated promptly during the night. The applicant has not even alleged that he did so. In addition, 128 persons altogether were apprehended and detained due to the demonstration and this fact may also have delayed the applicant’s release. However, the next day the applicant was one of the first to be interrogated and released due to his status as a journalist: he was the seventh detainee to be interrogated and the sixth to be released after the release of the minors (see paragraph 32 above). This fact clearly demonstrates that the police authorities displayed a rather favourable attitude towards the applicant as a representative of the media. 104. The Court notes that it is uncertain whether the applicant’s mobile telephone, camera equipment and memory cards were inspected by the police. The applicant claimed that this was the case. According to the report of the Deputy Parliamentary Ombudsman (see paragraph 34 above), the police had checked the content of the detainees’ mobile telephones. On the basis of the case file it is not clear whether the applicant’s mobile telephone was also checked and whether his memory cards were inspected. The Government, however, claimed that as soon as the police had found out that the applicant was a member of the press, his camera, memory cards and other equipment had immediately been treated as journalistic sources and were not confiscated (see paragraph 29 above). The applicant did not object to this assertion of the Government. 105. Although it is not entirely clear how the applicant’s camera equipment and memory cards were treated after his apprehension, the Court notes that it has not been claimed by the applicant that his camera equipment or the photographic materials he had acquired were not returned to him in their entirety or unaltered. For the Court, it does not appear that the applicant’s equipment was confiscated at any point but rather only set aside for the duration of his apprehension, in accordance with normal practice. Moreover, the applicant was allowed to keep all the photographs he had taken. No restriction on the use of the photographs was imposed on him by any authority at any stage. (iii) Applicant’s conviction 106. Finally, regarding the applicant’s conviction, the Court notes that the District Court found the applicant guilty of contumacy towards the police but did not impose any penalty on him as the offence was regarded as “excusable”. This conviction was later upheld by the Court of Appeal which did not give any additional reasons in its judgment. Finally, the Supreme Court refused the applicant leave to appeal. 107. The Court considers that the demonstration was a matter of legitimate public interest, having regard in particular to its nature. The media therefore had the task to impart information on the event and the public had the right to receive such information. This was also acknowledged by the authorities and therefore they had made preparations to accommodate the needs of the media. The event attracted a lot of media attention and was closely followed. The Court notes, however, that of the fifty or so journalists present at the demonstration, the applicant was the only one to claim that his freedom of expression was violated in the context of the demonstration. 108. Moreover, any interference with the exercise of his journalistic freedom was of limited extent, given the opportunities made available to him to cover the event adequately. The Court emphasises once more that the conduct sanctioned by the criminal conviction was not the applicant’s journalistic activity as such, that is, any publication made by him. While the phase prior to publication also falls within the scope of the Court’s review under Article 10 of the Convention (see The Sunday Times v. the United Kingdom (no. 2), 26 November 1991, § 51, Series A no. 217), the present case does not concern a sanction imposed on the applicant for carrying out journalistic research or for obtaining information as such (contrast Dammann v. Switzerland, no. 77551/01, § 52, 25 April 2006, concerning the imposition of a fine on a journalist for obtaining information which was subject to official secrecy). The applicant’s conviction concerns only his refusal to comply with a police order at the very end of the demonstration, which had been judged by the police to have become a riot. 109. The District Court subsequently found that the police had had justifiable reasons to give these orders (see paragraph 37 above). It considered that it had been necessary to disperse the crowd because of the riot and the threat to public safety, and to order people to leave. Since these lawful orders were not obeyed, the police were entitled to apprehend and detain the disobedient demonstrators. As the Government pointed out, the fact that the applicant was a journalist did not entitle him to preferential or different treatment in comparison to the other people left at the scene (see paragraph 78 above). This approach is also supported by the information available to the Court, according to which the legislation of the majority of the Council of Europe member States does not have the effect of conferring any special status on journalists when they fail to comply with police orders to leave the scene of a demonstration (see paragraph 57 above). 110. It appears from the case file that charges were brought against eighty-six defendants altogether who were accused of several types of offences. The applicant argued that the prosecutor could and should have dropped the charges against him as he was only carrying out his work as a journalist. According to the Court’s case-law, the principle of discretionary prosecution leaves States considerable room for manoeuvre in deciding whether or not to institute proceedings against someone thought to have committed an offence (see, mutatis mutandis, Stoll, cited above, § 159). Furthermore, the Court reiterates that journalists cannot be exempted from their duty to obey the ordinary criminal law solely on the basis that Article 10 affords them protection (ibid., § 102). Nonetheless, the Court accepts that journalists may sometimes face a conflict between the general duty to abide by ordinary criminal law, of which journalists are not absolved, and their professional duty to obtain and disseminate information thus enabling the media to carry out their essential role as a public watchdog. Against the background of this conflict of interests, it has to be emphasised that the concept of responsible journalism requires that whenever a journalist – as well as his or her employer – has to make a choice between the two duties and if he or she makes this choice to the detriment of the duty to abide by ordinary criminal law, such journalist has to be aware that he or she runs the risk of being subject to legal sanctions, including those of a criminal character, by not obeying the lawful orders of, inter alia, the police. 111. The District Court raised the question whether the applicant as a journalist had the right not to obey the orders given to him by the police. It found that, in the circumstances of the case, the conditions for restricting the applicant’s right to freedom of expression were fulfilled. In reaching that conclusion the District Court referred to the judgment in Dammann (cited above), arguing that the applicant’s case had to be distinguished from it. The reasons given by the District Court for the applicant’s conviction for contumacy towards the police are succinct. However, having regard to the particular nature of the interference with the applicant’s right to freedom of expression at stake in the present case (see paragraph 108 above), the Court is satisfied that they are relevant and sufficient. Moreover, the District Court had regard to the conflict of interests faced by the applicant when it decided not to impose any penalty on him. 112. In that context the Court reiterates that the nature and severity of the penalty imposed are further factors to be taken into account when assessing the proportionality of the interference (see Stoll, cited above, § 153, with further references). In the present case, the District Court refrained from imposing any penalty on the applicant as his act was considered “excusable”. In coming to that conclusion it took into account that the applicant, as a journalist, had been confronted with contradictory expectations, arising from obligations imposed on him by the police, on the one hand, and by his employer, on the other hand. 113. In some cases, the fact of a person’s conviction may be more important than the minor nature of the penalty imposed (see Stoll, cited above, § 154, with further references). In the present case, however, the Court attaches weight to the fact that the applicant’s conviction had no adverse material consequences for him: as no sanction was imposed, the conviction was not, in accordance with the domestic law, even entered in his criminal record (see paragraph 53 above). The applicant’s conviction amounted only to a formal finding of the offence committed by him and as such could hardly, if at all, have any “chilling effect” on persons taking part in protests (compare and contrast, mutatis mutandis, Taranenko v. Russia, no. 19554/05, § 95, 15 May 2014) or on the work of journalists at large (compare and contrast Cumpănă and Mazăre v. Romania [GC], no. 33348/96, § 116, ECHR 2004 ‑ XI). In sum, it can be said that the applicant’s conviction was proportionate to the legitimate aims pursued. 6. Overall conclusion 114. Having regard to all the foregoing factors and taking into account the margin of appreciation afforded to the State, the Court concludes that, in the present case, the domestic authorities based their decisions on relevant and sufficient reasons and struck a fair balance between the competing interests at stake. It clearly transpires from the case file that the authorities did not deliberately prevent or hinder the media from covering the demonstration in an attempt to conceal from the public gaze the actions of the police with respect to the demonstration in general or to individual protesters (see paragraph 89 in fine above). Indeed, the applicant was not prevented from carrying out his work as a journalist either during or after the demonstration. The Court therefore concludes that the interference with the applicant’s right to freedom of expression can be said to have been “necessary in a democratic society” within the meaning of Article 10 of the Convention. The Court would stress that this conclusion must be seen on the basis of the particular circumstances of the instant case, due regard being had to the need to avoid any impairment of the media’s “watchdog” role (see paragraph 89 above). 115. Accordingly, there has been no violation of Article 10 of the Convention. | The Court held that there had been no violation of Article 10 (freedom of expression) of the Convention, finding that the applicant’s apprehension and conviction of disobeying the police while covering a demonstration, without a sanction, had been proportionate. It noted in particular that the Finnish authorities had based their decisions on relevant and sufficient reasons and had struck a fair balance between the competing interests at stake. They had not deliberately prevented or hindered the media from covering the demonstration. The applicant had not been prevented from carrying out his work as a journalist either during or after the demonstration. In particular, he had not been apprehended for his work as a journalist as such but for refusing to obey police orders to leave the scene of the demonstration. His equipment had not been confiscated and he had not been sanctioned. |
64 | Disappearance of new-born baby in hospital care | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Constitution of the Republic of Serbia ( Ustav Republike Srbije, published in the Official Gazette of the Republic of Serbia (OG RS) no. 98/06) 32. Article 34 of the Constitution reads as follows: “No one shall be convicted on account of any act which did not constitute a criminal offence under the law or any other regulation based on the law at the time when it was committed. Nor shall a penalty be imposed which was not prescribed for the act at the time. The penalties shall be determined pursuant to the legislation in force at the time when the act was committed, save where subsequent legislation is more lenient for the perpetrator. Criminal offences and penalties shall be laid down by the law.” B. Criminal Code of the Socialist Republic of Serbia 1977 ( Krivični zakon Socijalističke Republike Srbije, published in the Official Gazette of the Socialist Republic of Serbia nos. 26/77, 28/77, 43/77 and 20/79) 33. Article 116 provided, inter alia, that anyone who had unlawfully detained or abducted a minor child from his or her parents was liable to a prison sentence of between one and ten years. C. Criminal Code of the Socialist Federal Republic of Yugoslavia 1976 ( Krivični zakon Socijalističke Federativne Republike Jugoslavije, published in the Official Gazette of the Socialist Federal Republic of Yugoslavia (OG SFRY) nos. 44/76, 36/77, 34/84, 37/84, 74/87, 57/89, 3/90, 38/90, 45/90 and 54/90; in the Official Gazette of the Federal Republic of Yugoslavia nos. 35/92, 16/93, 31/93, 37/93, 24/94 and 61/01; and in OG RS no. 39/03) 34. Articles 95 and 96 provided, inter alia, that prosecution of the crime defined in Article 116 of the Criminal Code of the Socialist Republic of Serbia became time-barred where more than twenty years had elapsed since the commission of the crime. D. Criminal Code of the Republic of Serbia 2005 ( Krivični zakonik, published in OG RS nos. 85/05, 88/05, 107/05, 72/09 and 111/09) 35. Under Articles 191, 192, 388 and 389, various forms of child abduction and human trafficking, including for the purposes of adoption, are defined as a crime. E. Obligations Act ( Zakon o obligacionim odnosima, published in OG SFRY nos. 29/78, 39/85, 45/89, 57/89 and 31/93) 36. Articles 199 and 200 provide, inter alia, that anyone who has suffered fear, physical pain or, indeed, mental anguish as a consequence of a breach of his or her “personal rights” ( prava ličnosti ) shall be entitled, depending on their duration and intensity, to sue for financial compensation in the civil courts and, in addition, to request other forms of redress “which may be capable” of affording adequate non-pecuniary satisfaction. 37. Article 376 §§ 1 and 2 provide that a claim based on the above-mentioned provisions may be brought within three years of the date on which the injured party learnt of the damage in question and identified the person responsible, but that such a claim must in any event be lodged within a maximum of five years of the event itself. 38. Article 377 § 1 further provides that if the damage in issue has been caused as a result of the commission of a criminal offence, the civil limitation period may be extended so as to correspond to the applicable criminal statute of limitations. F. Relevant domestic case-law 39. On 4 June 1998 the Supreme Court (Rev. 251/98) held that civil limitation periods concerning various forms of non-pecuniary damage (see paragraphs 36-38 above) would not start running until the situation complained of had come to an end ( kada su pojedini vidovi neimovinske štete dobili oblik konačnog stanja ). 40. On 21 April 2004 the Supreme Court (Rev. 229/04) further held that “personal rights” within the meaning of the Obligations Act included, inter alia, the right to respect for family life. G. Health Care Act ( Zakon o zdravstvenoj zaštiti, published in OG RS nos. 107/05, 72/09, 88/10 and 99/10) 41. Articles 219 to 223 provide, inter alia, details as regards the determination of the time and cause of death of a newborn baby while still in hospital. Specifically, the hospital will inform the family as soon as possible and provide them with access to the body. An autopsy is carried out and a biological sample stored for any future purposes. The police are informed if no cause of death has been established, and the relevant municipal authorities are informed in all circumstances. THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 42. The applicant relied on Articles 4, 5 and 8 of the Convention. In substance, however, she complained of the respondent State’s continuing failure to provide her with any information about the real fate of her son. The applicant suspected, further, that he might still be alive, having been unlawfully given up for adoption. 43. The Court, being the master of the characterisation to be given in law to the facts of any case before it (see Akdeniz v. Turkey, no. 25165/94, § 88, 31 May 2005), considers that this complaint falls to be examined under Article 8 of the Convention, which, in so far as relevant, reads as follows: “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.” A. Admissibility 1. Compatibility ratione temporis (a) The parties’ submissions 44. The Government maintained that the facts “constitutive of the alleged interference” concerned a period prior to 3 March 2004, that being the date when the Convention had come into force in respect of Serbia. Specifically, the applicant’s child had allegedly been taken from her on 31 October 1983 and her husband’s criminal complaint had been rejected on 15 October 2003, having not been lodged until some ten months previously. The Government argued, lastly, that even the alleged failure of the respondent State to remedy the impugned situation as of 3 March 2004 could not bring the applicant’s complaint within the Court’s competence ratione temporis. 45. The applicant submitted that the violation in question was of an ongoing character and that she had also complained orally about the issue to various authorities over the years. (b) The Court’s assessment 46. The Court reiterates that its jurisdiction ratione temporis covers only the period after the ratification of the Convention or its Protocols by the respondent State. From the ratification date onwards, however, the State’s alleged acts and omissions must conform to the Convention and its Protocols, meaning that all subsequent facts fall within the Court’s jurisdiction even where they are merely extensions of an already existing situation (see, for example, Yağcı and Sargın v. Turkey, 8 June 1995, § 40, Series A no. 319 ‑ A, and Almeida Garrett, Mascarenhas Falcão and Others v. Portugal, nos. 29813/96 and 30229/96, § 43, ECHR 2000-I). 47. It is further observed that disappearances are a very specific phenomenon, characterised by an ongoing situation of uncertainty and unaccountability in which there is a lack of information or even a deliberate concealment and obfuscation of what has occurred. This situation is very often drawn out over time, prolonging the torment of the victim’s parents or relatives. It cannot therefore be said that a disappearance is, simply, an “instantaneous” act or event; the additional distinctive element of subsequent failure to account for the whereabouts and fate of the missing person gives rise to a continuing situation. Thus, the positive obligation will, potentially, persist as long as the fate of the person is unaccounted for. This is so even where death may, eventually, be presumed (see, albeit in the context of Articles 2 and 3, 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, § 148, ECHR 2009). 48. Turning to the present case, the Court notes that the applicant’s son allegedly died or went missing on 31 October 1983, whilst the Convention came into force in respect of Serbia on 3 March 2004. However, the respondent State’s alleged failure to provide the applicant with any definitive and/or credible information as to the fate of her son has continued to the present day. In such circumstances, the Court considers that the applicant’s complaint concerns a continuing situation (see, mutatis mutandis, Varnava and Others, cited above, §§ 130-50, and, in the context of Article 8, Kurić and Others v. Slovenia [GC], no. 26828/06, §§ 238 and 240-42, 26 June 2012). 49. Accordingly, the Government’s objection as to the lack of jurisdiction ratione temporis must be dismissed. The Court is thus competent to examine the applicant’s complaint in so far as it relates to the respondent State’s alleged failure to fulfil its procedural obligations under the Convention as of 3 March 2004. It may, however, have regard to the facts prior to the ratification inasmuch as they could be considered to have created a continuous situation extending beyond that date or may be relevant for the understanding of facts occurring thereafter (see, mutatis mutandis, Kurić and Others, cited above, § 240). 2. The six-month rule (a) The parties’ submissions 50. The Government contended that the applicant’s complaint had been lodged out of time because she had learned of the outcome of her criminal case more than four years earlier. The applicant should therefore have lodged her application with the Court within a period of six months following the Convention’s entry into force in respect of Serbia, namely, as of 3 March 2004. Whilst it was true that various official reports had been produced after that date, the Government submitted that the applicant could not have “reasonably expected” that any of them would have enabled her to initiate proceedings capable of bringing about the “resolution of her case”. No “revival” of the respondent State’s obligations under the Convention was therefore possible. 51. The applicant stated that the parliamentary report of 14 July 2006 and the Ombudsman’s report of 29 July 2010 had raised her hopes that redress might, after all, be forthcoming, and that such expectations had ended only on 28 December 2010 when the working group had presented its own report to Parliament. (b) The Court’s assessment 52. 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 continually open to challenge. It marks out the temporal limits of supervision carried out by the Court 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). 53. 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). 54. Nonetheless, it has been said that the six-month time-limit does not apply as such to continuing situations (see, for example, Agrotexim Hellas S.A. and Others v. Greece, no. 14807/89, Commission decision of 12 February 1992, Decisions and Reports 72, p. 148, and Cone v. Romania, no. 35935/02, § 22, 24 June 2008); this is because, if there is a situation of an ongoing breach, the time-limit in effect starts afresh each day and it is only once the situation ceases that the final period of six months will run to its end. 55. However, not all continuing situations are the same. As regards disappearances, applicants cannot wait indefinitely before lodging their application with the Court. Where there is a state of ignorance and uncertainty and, by definition, a failure to account for what has happened, if not an appearance of deliberate concealment and obstruction on the part of some authorities, it is more difficult for the relatives of the missing to assess what is happening, or what can be expected to happen. Allowances must be made for the uncertainty and confusion which frequently mark the aftermath of a disappearance. Still, applications can be rejected as out of time where there has been excessive or unexplained delay on the part of applicants once they have, or should have, become aware that no investigation has been instigated or that the investigation has lapsed into inaction or become ineffective and, in any of those eventualities, there is no immediate, realistic prospect of an effective investigation being provided in the future. Where there are initiatives being pursued with regard to a disappearance situation, applicants may reasonably await developments which could resolve crucial factual or legal issues. Indeed, as long as there is some meaningful contact between families and authorities concerning complaints and requests for information, or some indication, or realistic possibility, of progress in investigative measures, considerations of undue delay will not generally arise. However, where there has been a considerable lapse of time, and there have been significant delays and lulls in investigative activity, there will come a moment when the relatives must realise that no effective investigation has been, or will be provided (see Varnava and Others, cited above, §§ 162 and 165). 56. Turning to the present case, the Court notes that on 14 July 2006 the Serbian Parliament formally adopted a report prepared by its Investigating Committee. The report included, inter alia, a recommendation to the effect that a concerted effort on the part of all government bodies, as well as changes to the relevant legislation, were necessary in order to provide the parents with adequate redress (see paragraph 27 (d) above). On 16 April 2010 the local media reported that the President of the Parliament had stated that a parliamentary working group was about to be formed in order to prepare new legislation aimed at providing redress to the parents of the “missing babies” (see paragraph 28 above). Lastly, in his report of 29 July 2010 the Serbian Ombudsman opined that the parents remained entitled to know the truth regarding the real fate of their children, and proposed the enactment of a lex specialis in that regard (see paragraph 29 (f) above). 57. In such, admittedly very specific, circumstances and despite the overall passage of time, it cannot be said that the applicant was unreasonable in awaiting the outcome of developments which could have “resolved crucial factual or legal issues” regarding her complaint, at least not until the presentation of the working group’s report on 28 December 2010 when it became obvious that no redress would be forthcoming (see paragraphs 30-31 above). Since the application in the present case was lodged on 22 April 2008, the Government’s objection must be rejected. 3. Exhaustion of domestic remedies (a) The parties’ submissions 58. The Government averred that the applicant had in effect made no effort to exhaust domestic remedies. In particular, it was her husband who had lodged the criminal complaint, and she, personally, had also failed to bring a civil case on the basis of Articles 199 and 200 of the Obligations Act, as applied and interpreted in the Supreme Court’s case-law described in paragraphs 36 to 40 above. The Government further produced three judgments of the Supreme Court in which the claimants had been awarded compensation for the harm suffered as a consequence of medical errors and police misconduct, and one ruling setting aside a district court’s decision adopted in the latter context (see Rev. nos. 1118/03, 807/05 and 51/07 of 10 April 2003, 1 December 2005 and 13 March 2007, respectively). In any event, and as a matter of principle, the Government considered it unreasonable that a State Party should be required to provide effective redress to applicants in cases where an alleged violation of their rights had taken place prior to the ratification of the Convention. 59. The applicant maintained that the criminal complaint lodged by her husband had clearly included her own complaint to the same effect since the entire matter concerned the disappearance of their child. It was true that the said complaint had been lodged in 2003, but the applicant had been unable to obtain any relevant evidence or expect any redress prior to then. Put simply, the “missing-babies issue” had been taboo until 2001, when the parents concerned had started organising themselves, the media had begun extensively reporting on it, and even Parliament had debated the issue at its plenary sessions. It should further be noted that, in the meantime, applicable criminal and civil limitation periods had come into force. (b) The Court’s assessment 60. The Court reiterates that, under Article 35 § 1 of the Convention, it may only deal with an application 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, Mifsud v. France (dec.) [GC], no. 57220/00, § 15, ECHR 2002-VIII). The obligation to exhaust domestic remedies requires an applicant to make normal use of remedies which are effective, sufficient and accessible in respect of his or her Convention grievances. To be effective, a remedy must be capable of remedying directly the impugned state of affairs (see Balogh v. Hungary, no. 47940/99, § 30, 20 July 2004). The Court has likewise frequently emphasised the need to apply the exhaustion rule with some degree of flexibility and without excessive formalism (see Ringeisen v. Austria, 16 July 1971, § 89, Series A no. 13). 61. In terms 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 (see, inter alia, Vernillo v. France, 20 February 1991, § 27, Series A no. 198, and Dalia v. France, 19 February 1998, § 38, Reports of Judgments and Decisions 1998-I). Once this burden has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted, or was for some reason inadequate and ineffective in the particular circumstances of the case, or that there existed special circumstances absolving him or her from this requirement (see Dankevich v. Ukraine, no. 40679/98, § 107, 29 April 2003). 62. As regards the present case, the Court notes that the applicant’s husband did indeed lodge a criminal complaint on his own behalf and on behalf of the applicant since the incident in question concerned the same event of equal significance to both of them. That complaint was rejected by the public prosecutor’s office, however, without any indication as to whether any preliminary investigation had been carried out (see paragraph 17 above). Further, any criminal proceedings would indeed have become time-barred by October 2003, at the latest, and would hence have been incapable of providing any redress thereafter (see paragraphs 27 (c) and 34 above). 63. Concerning the civil claim, the Court considers that this avenue of redress could not have remedied the impugned state of affairs. The civil courts could, at best, have recognised the violation of the applicant’s “personal rights” and awarded compensation for the non-pecuniary damage suffered. They could also, possibly, have ordered other forms of redress “capable” of affording non-pecuniary satisfaction. Neither of those measures, however, could have effectively remedied the applicant’s underlying complaint, which was her need for information as to “the real fate of her son”. The Government have certainly offered no evidence to the contrary. The Court notes, lastly, that neither Parliament nor the Ombudsman addressed this issue in their respective reports. Indeed, if anything, by recommending the enactment of a lex specialis they appear to have suggested that no existing domestic remedies, including the said civil claim, could have been effective (see paragraphs 27 (d), 28 and 29 (f) above). 64. The Government’s objection as to the exhaustion of domestic remedies must therefore be rejected. 4. Conclusion 65. 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 is also not inadmissible on any other grounds, and must therefore be declared admissible. B. Merits 1. The parties’ submissions 66. The applicant reaffirmed her complaint regarding the respondent State’s continuing failure to provide her with information as to the real fate of her son. She added that had her son died, as the ĆMC had claimed, they should have reported the death to the competent municipal authorities, shown the body to the parents and produced an autopsy report. 67. The Government submitted that no violation of the applicant’s rights could be imputed to the respondent State since the alleged disappearance of her son had occurred in a medical institution, not a State body. Nor was there any evidence that the applicant’s child had indeed been removed from her unlawfully. Whilst there might have been certain procedural omissions on the part of the ĆMC in 1983, the applicant had not made use of any domestic remedies, despite these being capable of offering redress for any wrongs suffered. The issue had also been considered repeatedly at domestic level and the relevant legal framework and practices had been amended with a view to offering adequate safeguards. Any changes to the criminal legislation, however, could not, by definition, be applied to the applicant’s situation, which had arisen so many years previously (see paragraphs 24, 25 and 31 above). 2. The Court’s assessment 68. The mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of “family life” within the meaning of Article 8 of the Convention (see, among many other authorities, Monory v. Romania and Hungary, no. 71099/01, § 70, 5 April 2005). 69. The essential object of Article 8 is to protect the individual against arbitrary interference by public authorities. There may, however, be additional positive obligations inherent in this provision extending to, inter alia, the effectiveness of any investigating procedures relating to one’s family life (see, mutatis mutandis, and in the context of “private life”, M.C. v. Bulgaria, no. 39272/98, §§ 152-53, ECHR 2003 ‑ XII). 70. In Varnava and Others (cited above) the Grand Chamber, albeit in the context of Article 3, held as follows: “200. The phenomenon of disappearances imposes a particular burden on the relatives of missing persons who are kept in ignorance of the fate of their loved ones and suffer the anguish of uncertainty. ... The essence of the violation is not that there has been a serious human rights violation concerning the missing person; it lies in the authorities’ reactions and attitudes to the situation when it has been brought to their attention ... Other relevant factors include ... the extent to which the family member witnessed the events in question, the involvement of the family member in the attempts to obtain information about the disappeared person ... The finding of such a violation is not limited to cases where the respondent State has been held responsible for the disappearance ... but can arise where the failure of the authorities to respond to the quest for information by the relatives or the obstacles placed in their way, leaving them to bear the brunt of the efforts to uncover any facts, may be regarded as disclosing a flagrant, continuous and callous disregard of an obligation to account for the whereabouts and fate of a missing person.” The Court deems these considerations broadly applicable, mutatis mutandis, to the very specific context of positive obligations under Article 8 in the present case. 71. With this in mind and turning to the present case, it is noted that the body of the applicant’s son was never released to the applicant or her family, and that the cause of death was never determined (see paragraphs 22 and 14 above, in that order). Furthermore, the applicant was never provided with an autopsy report or informed of when and where her son had allegedly been buried, and his death was never officially recorded (see paragraphs 22 and 15 above, in that order). The criminal complaint lodged by the applicant’s husband would also appear to have been rejected without adequate consideration (see paragraph 17 above), and the applicant herself still has no credible information as to what happened to her son. 72. Moreover, the Court observes that the respondent State authorities have themselves affirmed, on various occasions following the Serbian ratification of the Convention, that (a) in the 1980s there were serious shortcomings in the applicable legislation and in the procedures before various State bodies and health authorities; (b) there were no coherent statutory regulations as to what should happen in situations where a newborn baby died in hospital; (c) the prevailing medical opinion was that parents should be spared the mental pain of having to bury their newborn baby, which is why it was quite possible that certain couples were deliberately deprived of the opportunity to do so; (d) this situation justified the parents’ doubts or concerns as to what had really happened to their children, and it could not therefore be ruled out that the babies in question were indeed removed from their families unlawfully; (e) the respondent State’s response between 2006 and 2010 was itself inadequate; and (f) the parents therefore remain entitled to know the truth as to the real fate of their children (see paragraphs 26-29 above). 73. Lastly, despite several seemingly promising official initiatives between 2003 and 2010, the working group’s report submitted to the Serbian Parliament on 28 December 2010 concluded that no changes to the existing, already amended, legislation were necessary, except as regards the collection and use of medical data. In these circumstances, it is clear that this has only improved the situation for the future, and has effectively offered nothing to those parents, including the applicant, who have endured the ordeal in the past (see paragraphs 30-31 above). 74. The foregoing considerations are sufficient to enable the Court to conclude that the applicant has suffered a continuing violation of the right to respect for her family life on account of the respondent State’s continuing failure to provide her with credible information as to the fate of her son. 75. There has accordingly been a violation of Article 8 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 8 76. The applicant further complained, under Article 13 of the Convention, of the respondent State’s continuing failure to provide her with any redress for the continuing breach of her right to respect for her “family life”. 77. The Government contested the merits of this complaint (see paragraph 58 above). 78. The Court considers that this complaint falls to be examined under Article 13 of the Convention taken in conjunction with Article 8. 79. The former provision reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 80. Given that the applicant’s Article 13 complaint is effectively the same as her complaint under Article 8, and having regard to its finding in respect of the latter (see, in particular, paragraph 73 above), the Court declares the Article 13 complaint admissible but considers that it need not be examined separately on its merits. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 81. 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 82. The applicant claimed 50,000 euros (EUR) in respect of non-pecuniary damage. 83. The Government contested that claim. 84. The Court considers that the applicant has certainly suffered some non-pecuniary damage. Having regard to the nature of the violation found in the present case and making its assessment on an equitable basis, the Court therefore awards her EUR 10,000 under this head. B. Costs and expenses 85. The applicant also claimed EUR 2,750 for the costs and expenses incurred before the Court. 86. The Government contested that claim. 87. 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 their quantum. In the present case, regard being had to the documents in its possession and the above criteria, as well as the fact that the applicant has already been granted EUR 850 under the Council of Europe’s legal aid scheme, the Court considers it reasonable to award her the additional sum of EUR 1,800 for the costs incurred before it. C. Default interest 88. 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. IV. APPLICATION OF ARTICLE 46 OF THE CONVENTION 89. Article 46 of the Convention 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. ...” 90. Given these provisions, 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 any 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, in so far as possible, the effects thereof (see Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000-VIII). 91. In that connection the applicant requested that the respondent State be ordered to amend its legislation so as to increase the penalties for the relevant criminal offences, extend the applicable limitation period and, subsequently, reopen the criminal proceedings in her case. 92. In view of the above, as well as the significant number of potential applicants, the respondent State must, within one year from the date on which the present judgment becomes final in accordance with Article 44 § 2 of the Convention, take all appropriate measures, preferably by means of a lex specialis (see the Ombudsman’s report of 29 July 2010 at paragraph 29 above), to secure the establishment of a mechanism aimed at providing individual redress to all parents in a situation such as, or sufficiently similar to, the applicant’s (see paragraph 26 above). This mechanism should be supervised by an independent body, with adequate powers, which would be capable of providing credible answers regarding the fate of each child and awarding adequate compensation as appropriate. 93. As regards all similar applications already pending before it, the Court decides to adjourn these during the said interval. This decision is without prejudice to the Court’s power at any moment to declare inadmissible any such case or to strike it out of its list in accordance with the Convention. | The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention. It found that, although the procedure in hospitals when new-borns die had been improved and reports had been drawn up by Parliament to investigate the missing babies cases, ultimately nothing had been done to remedy the ordeal suffered by the parents, including the applicant, in the past. Therefore the Court concluded that the applicant had suffered a continuing violation of the right to respect for her family life due to Serbia’s continuing failure to provide her with credible information as to what has happened to her son. Given the significant number of other potential applicants, the Court also held under Article 46 (binding force and execution of judgments) of the Convention that Serbia had to take measures to give credible answers about what has happened to each missing child and to provide parents with adequate compensation. |
989 | Cases in which the Court has found a violation of Article 18 in conjunction with Article 5 of the Convention | II. RELEVANT DOMESTIC LAW AND PRACTICE 28. A detailed description of the relevant provisions of the Criminal Code and the Code of Criminal Procedure, as well as of the relevant international reports, may be found in Rasul Jafarov (cited above, §§ 50 ‑ 84). THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 29. Relying on Article 3 of the Convention the applicant complained that his confinement in a metal cage in the courtroom during the appeal hearing of 17 August 2016 had violated his human dignity and amounted to degrading treatment. Article 3 reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility 1. The parties ’ submissions 30. The Government submitted that the applicant had not exhausted domestic remedies in respect of his complaint. They argued that the applicant had failed to bring this issue to the attention of the court which heard the case and that he had not demonstrated that it would have been impossible to request the court to take him out of the metal cage. Furthermore, the applicant had withdrawn the appeal in which he had complained about the conditions of his detention in the courtroom. 31. The Government also argued that the applicant ’ s complaint was unsubstantiated because there was nothing to demonstrate that the photo he had provided had been taken during the appeal hearing of 17 August 2016. The Government also noted that court hearings concerning pre-trial detention were held, as a rule, in camera and that the source of the photo was therefore disputable. 32. The applicant disagreed with the Government and noted that the photo submitted clearly showed that he had been confined in a metal cage under the supervision of a convoy officer. He further submitted that the confinement of defendants in a metal cage in the courtroom was an established practice. In this context he provided a copy of a photo published in the media showing another defendant confined in a metal cage in the same courtroom of the Baku Court of Appeal during a hearing which had taken place on 11 September 2018. In view of the general nature of the practice, the applicant also argued that there was no domestic remedy to be exhausted. 2. The Court ’ s assessment 33. Inasmuch as the Government argued that the applicant had not complied with the rule on exhaustion of domestic remedies, the Court finds that they did not specify with sufficient clarity the type of action which would have been an effective remedy in their view, nor did they provide any further information as to how such action could have prevented the alleged violation or its continuation or provided the applicant with adequate redress. As to the Government ’ s argument that the applicant had failed to bring this issue to the attention of the court hearing the case, they did not show on the basis of domestic law or practice that there was a specific procedure to be followed for a person who wished to be released from the cage, in view of the existing practice (compare Čalovskis v. Latvia, no. 22205/13, § 91, 24 July 2014). Furthermore, the Government did not dispute the fact that placing defendants in metal cages when they appeared before a court in criminal proceedings was still a general practice, as argued by the applicant (see Svinarenko and Slyadnev v. Russia [GC], nos. 32541/08 and 43441/08, § 75, ECHR 2014 (extracts) regarding the use of a “metal cage” in courtrooms in the member States of the Council of Europe). This is also confirmed by a copy of the photo submitted by the applicant concerning the confinement of a defendant in a metal cage during a recently held court hearing. In this context, turning to the Government ’ s further argument that the applicant ’ s complaint was unsubstantiated, the Court notes that there is nothing in the materials before it to support that conclusion. As the Court has previously held, in certain situations, such as in conditions-of-detention cases, the respondent Government alone have access to information capable of corroborating or refuting these allegations. They are required, in particular, to collect and produce relevant documents (see Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § 123, 10 January 2012). However, in the present case the Government did not produce any evidence to refute the applicant ’ s allegation. 34. For the above reasons, the Court finds that this complaint cannot be rejected for non-exhaustion of domestic remedies. The Court also concludes that it 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 35. The Government submitted that the press and the public had been absent during the court hearing of 17 August 2016 and that only the applicant, his lawyers, the prosecutors, a court clerk and a judge had been present. 36. The applicant reiterated his complaint. 37. The Court reiterates that treatment is considered to be “degrading” within the meaning of Article 3 when it humiliates or debases an individual, showing a lack of respect for, or diminishing, his or her human dignity, or when it arouses feelings of fear, anguish or inferiority capable of breaking an individual ’ s moral and physical resistance (see M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 220, ECHR 2011, and El- Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 202, ECHR 2012). The public nature of the treatment may be a relevant or an aggravating factor in assessing whether it is “degrading” within the meaning of Article 3 of the Convention. However, the absence of publicity will not necessarily prevent a given treatment from falling into that category: it may well suffice that the victim is humiliated in his own eyes, even if not in the eyes of others (see Tyrer v. the United Kingdom, 25 April 1978, § 32, Series A no. 26; Erdoğan Yağız v. Turkey, no. 27473/02, § 37, 6 March 2007; and Kummer v. the Czech Republic, no. 32133/11, § 64, 25 July 2013). 38. The Court has previously found that holding a person in a metal cage in a courtroom constituted in itself – having regard to its objectively degrading nature, which is incompatible with the standards of civilised behaviour that are the hallmark of a democratic society – an affront to human dignity, and amounted to degrading treatment in violation of Article 3 of the Convention (see Svinarenko and Slyadnev, cited above, §§ 122-39; Urazov v. Russia, no. 42147/05, §§ 82-83, 14 June 2016; and Vorontsov and Others v. Russia, nos. 59655/14 and 2 others, § 31, 31 January 2017). 39. The Court notes that, unlike the previous cases in which it found a violation of Article 3 of the Convention on account of the applicants ’ confinement in metal cages during public hearings, in the present case the applicant was confined in the metal cage during a hearing concerning his pre-trial detention, which, according to the Government, was held in camera. The Government may thus be understood to be arguing that, even though the applicant ’ s lawyers, the prosecutors and a court clerk had been present during the hearing, it was closed to the public and the applicant had not therefore been publicly exposed in the metal cage. The Court reiterates, however, that the absence of publicity will not necessarily prevent a given treatment from falling into the category of degrading treatment (see paragraph 37 above). 40. In such circumstances, having regard to the objectively degrading nature of holding a person in a metal cage, the Court considers that the applicant ’ s confinement in a metal cage during the appeal hearing concerning his pre-trial detention amounted to degrading treatment (compare Karachentsev v. Russia, no. 23229/11, § 53, 17 April 2018). 41. There has therefore been a violation of Article 3 of the Convention. II. ALLEGED VIOLATIONS OF ARTICLE 5 OF THE CONVENTION 42. The applicant complained under Article 5 §§ 1, 3 and 4 of the Convention that his arrest and detention had been unlawful and unjustified, that there had been no reasonable suspicion that he had committed a criminal offence and that the domestic courts had failed to carry out an effective judicial review of his detention and to justify it by relevant and sufficient reasons. The relevant parts 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: ... (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ... 3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial. 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 43. 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. Alleged breach of Article 5 §§ 1 (c) and 3 of the Convention on account of the lack of reasonable suspicion and the domestic courts ’ failure to give relevant and sufficient reasons for continued detention (a) The parties ’ submissions 44. Relying on the Court ’ s judgment in the case of R Rasul Jafarov v. Azerbaijan (no. 69981/14, 17 March 2016), the applicant submitted that he had been charged with similar crimes in similar circumstances and that, for the reasons set out in that judgment, there had been no “reasonable suspicion” that he had committed a criminal offence. He also complained that the domestic courts had failed to provide “relevant and sufficient” reasons justifying his pre-trial detention. 45. The Government argued that there was sufficient evidence, facts and information to justify a reasonable suspicion that the applicant might have committed the offences under Articles 192.1 and 308.2 of the Criminal Code. In support of their submissions, they provided a copy of a financial expert opinion of 29 June 2015 prepared by the Forensic Examination Centre of the Ministry of Justice. The Government further stated that the applicant ’ s pre-trial detention had been justified and had been based on relevant and sufficient reasons. (b) The Court ’ s assessment 46. The Court notes that the issues raised by the applicant ’ s complaints are the subject of well-established case-law of the Court. The Court will examine these complaints on the basis of the relevant general principles set out, in particular, in the case of Rasul Jafarov (cited above, §§ 114-18). 47. The Court observes that the charges brought against the applicant in relation to the grants received are similar to a large extent to those brought against the applicants in the cases of Rasul Jafarov, Mammadli v. Azerbaijan ( no. 47145/14, 19 April 2018), and Aliyev v. Azerbaijan (nos. 68762/14 and 71200/14, 20 September 2018). In the present case, as in Rasul Jafarov, the charges of illegal entrepreneurship and abuse of power stemmed from the applicant ’ s failure to register the grants received, which, according to the authorities, resulted in a de facto commercial activity. In Rasul Jafarov, the Court concluded as follows: “128 ... Having regard to the relevant legislation (see paragraphs 69 and 71 above), the Court notes that the requirement to submit grants for registration to the Ministry of Justice was merely a reporting requirement, and not a prerequisite for legal characterisation of the received financial assistance as a ‘ grant ’. Failure to meet this reporting requirement was an administrative offence specifically proscribed by Article 223-1.1 of the CAO and punishable by a fine (only after February 2014 in the case of individual recipients). Non-compliance with this reporting requirement had no effect on the nature of a grant agreement defined and regulated by Articles 1.1 and 4.1 of the Law on Grants (see paragraphs 68-69 above), or on the characterisation of the activities for which the grant was used as non-commercial. 129. However, from the documents in the case file it appears that, apart from relying on the applicant ’ s alleged failure to comply with the reporting requirement to register the grants, which in itself was not criminalised under the domestic law, the prosecuting authorities never demonstrated the existence of any information or evidence showing that the applicant might have used the money for generating profit or for purposes other than those indicated in the grant agreements, or that the purposes indicated in the grant agreements were both commercial and illegal ... 130. In such circumstances, the Court finds that the applicant could not have been reasonably suspected of having committed the criminal offence of ‘ illegal entrepreneurship ’ under Article 192.2.2 of the Criminal Code, because there were no facts, information or evidence showing that he had engaged in commercial activity... Furthermore, the above-mentioned facts were not sufficient to give rise to a suspicion that the applicant had sought to ‘ obtain unlawful advantage for himself or for third parties ’, which was one of the constituent elements of the criminal offence of ‘ abuse of power ’ under Article 308 of the Criminal Code ...” 48. The Court has no reason to hold otherwise in the present case as the facts relied on by the domestic authorities in bringing the charges at issue were similar in nature and there is nothing in the Government ’ s submissions that would enable the Court to reach a different conclusion. 49. As to the Government ’ s argument that the reasonable suspicion against the applicant was supported by the expert opinion of 29 June 2015, the Court notes firstly that it has not been demonstrated that this piece of evidence was ever presented by the prosecuting authorities to the domestic courts ordering the applicant ’ s pre-trial detention (see Mammadli, cited above, § 62). Secondly, the Court observes that the expert opinion submitted by the Government mainly concerned the amount of profit made by the applicant and the amount of simplified tax he owed under Articles 218, 219 and 220 of the Tax Code as a result of his failure to register the grants received. However, as noted above, there was no information or evidence showing that the applicant might have used the money received under the grant agreements in order to generate a profit and that he thus engaged in commercial activity. 50. Having regard to the above considerations and the Court ’ s case-law on the matter, the Court finds that the material put before it does not meet the minimum standard set by Article 5 § 1 (c) of the Convention for the reasonableness of a suspicion required for an individual ’ s arrest and continued detention. The Court therefore concludes that during the period under consideration the applicant was deprived of his liberty in the absence of a “reasonable suspicion” of his having committed a criminal offence. 51. There has accordingly been a violation of Article 5 § 1 of the Convention. 52. The above finding makes it redundant to assess whether the reasons given by the domestic courts for the applicant ’ s continued detention were based on “relevant and sufficient” grounds, as required by Article 5 § 3 of the Convention. Therefore, the Court does not consider it necessary to examine separately the applicant ’ s complaints under Article 5 § 3 of the Convention (see Rasul Jafarov, cited above, § 135). 2. Alleged breach of Article 5 § 4 of the Convention on account of the lack of an effective judicial review of the lawfulness of the applicant ’ s detention 53. The submissions made by the applicant and the Government were identical to those made by the parties in respect of the same complaint raised in the case of Rasul Jafarov (cited above, §§ 138-39). 54. In the case of Rasul Jafarov (cited above §§ 140-44), having examined a similar complaint based on the similar facts, the Court found that the applicant had not been afforded proper judicial review of the lawfulness of his detention. Having regard to the material in its possession, the Court notes that the Government have not put forward any fact or argument capable of persuading it to reach a different conclusion in the present case. 55. There has, accordingly, been a violation of Article 5 § 4 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 18 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 5 56. Relying on Article 18 of the Convention, the applicant complained that his right to liberty had been restricted for purposes other than those prescribed in the Convention. Article 18 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. Admissibility 57. 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 (a) The applicant 58. The applicant submitted that he was a political activist and was known for his critical articles published on Facebook concerning economic and social problems in the country. He was also a representative of REAL in the campaign group, but had been unable to carry out his activities because of his arrest and detention, which had ultimately resulted in REAL being obliged to end their participation in the referendum campaign. After the applicant ’ s release it had no longer been possible to participate in the referendum campaign because of the expiry of the statutory deadlines. Therefore, the specific circumstances of his case demonstrated that his arrest and pre-trial detention had been intended to punish and silence him for his political activities and to prevent him from carrying out his activities as a representative of REAL in the campaign group in respect of the constitutional referendum of 26 September 2016. (b) The Government 59. Relying on the cases of Khodorkovskiy v. Russia (no. 5829/04, 31 May 2011) and Khodorkovskiy and Lebedev v. Russia (nos. 11082/06 and 13772/05, 25 July 2013) the Government submitted that the restrictions imposed by the State in the present case under Article 5 of the Convention had not been applied for any purpose other those envisaged by that provision, and strictly for the proper investigation of the serious criminal offences allegedly committed by the applicant. In their view, none of the accusations against the applicant had been political. The acts which had been imputed to him had not been related to his participation in political life, real or imaginary; he had in fact been prosecuted for common criminal offences. 60. The Government further submitted that the applicant had been arrested on 12 August 2016 and that the domestic courts had ordered his pre-trial detention for a period of four months. However, less than a month later, on 9 September 2016, the prosecutor in charge of the case had requested the court to order the applicant ’ s release, as the grounds justifying his continued detention had ceased to exist, and the court had granted the prosecutor ’ s request. These facts demonstrated that in arresting the applicant the authorities had not had any ulterior motives, such as silencing the applicant for his political activities. The applicant had been released before the referendum date and had been able to continue his activities in the campaign group. 2. The Court ’ s assessment 61. The Court will examine the applicant ’ s complaint in the light of the relevant general principles set out by the Grand Chamber in its judgment in Merabishvili ([GC], no. 72508/13, §§ 287-317, 28 November 2017). 62. The Court notes at the outset that it has already found that the applicant ’ s arrest and pre-trial detention were not carried out for a purpose prescribed under Article 5 § 1 (c) of the Convention, as the charges against him were not based on a “reasonable suspicion” within the meaning of Article 5 § 1 (c) of the Convention (see paragraph 50 above). Therefore, no issue arises in the present case with respect to a plurality of purposes, where a restriction is applied both for an ulterior purpose and a purpose prescribed by the Convention (compare Merabishvili, cited above, §§ 318 ‑ 54). 63. However, the mere fact that the restriction of the applicant ’ s right to liberty did not pursue a purpose prescribed by Article 5 § 1 (c) is not in itself a sufficient basis to conduct a separate examination of a complaint under Article 18 unless 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 (see Merabishvili, cited above, § 291). Therefore, it remains to be seen whether there is proof that the authorities ’ actions were actually driven by an ulterior purpose. 64. In this connection, the Court points out that in the case of Aliyev (cited above, § 223) it found that its judgments in a series of similar cases reflected a pattern of arbitrary arrest and detention of government critics, civil society activists and human-rights defenders through retaliatory prosecutions and misuse of the criminal law in breach of Article 18. 65. For the reasons set out below the Court finds that the present case constitutes a part of this pattern since the combination of the relevant case-specific facts in the applicant ’ s case is similar to that in the previous ones, where proof of an ulterior purpose derived from a juxtaposition of the lack of suspicion with contextual factors. 66. Firstly, as regards the applicant ’ s status, the Court notes that it is not disputed between the parties that the applicant is a political activist and was actively involved in the campaign concerning the constitutional referendum of 26 September 2016. 67. Secondly, the applicant ’ s situation should be viewed against the backdrop of arrests of other notable civil society activists and human-rights defenders who have been detained and charged to a large extent with similar criminal offences in relation to the “alleged illegal activities of some non ‑ commercial organisations” (see paragraphs 9 and 13 cited above). 68. Thirdly, and still bearing in mind that there is nothing in the case file to show that the prosecuting authorities had any objective information giving rise to a reasonable suspicion against the applicant at the material time, the Court attaches particular weight to the timing of the institution of criminal proceedings against the applicant, his arrest and detention. The applicant was arrested during the active phase of the registration process for the referendum campaign in which he officially represented REAL, which campaigned against the draft amendments to the Constitution (compare Mammadli, cited above, § 102). He was released following the prosecutor ’ s request and only after REAL officially announced that it had decided to end its participation in the campaign because of the arrest of some of its members, including the applicant, and after the official launch of the referendum campaign. Thus, having regard to the chain of events in the case, the Court cannot accept the Government ’ s submission that the prosecuting authorities did not have any ulterior motives and that the applicant ’ s arrest and detention did not prevent him from participating in the campaign. 69. At this point, the Court considers it appropriate to have regard to the nature and degree of reprehensibility of the ulterior purpose, bearing in mind that the Convention was designed to maintain and promote the ideals and values of a democratic society governed by the rule of law (see Navalnyy v. Russia [GC], nos. 29580/12 and 4 others, § 173, 15 November 2018). The Court notes that during preparations for the referendum campaign the applicant acted as a representative of REAL, which as a result of the arrest of some of its members, including the applicant, had been forced to stop the collection of signatures required for participation in this campaign. The intimidation of a campaigning member of the opposition in the run-up to the constitutional referendum had serious potential to discourage opposition supporters from participating in open political debate. At the core of the applicant ’ s Article 18 complaint is his alleged persecution, not as a private individual, but as an opposition politician committed to playing an important public function through democratic discourse. As such, the restriction in question did not merely affect the applicant alone, or his fellow opposition activists and supporters, but the very essence of democracy as a means of organising society, in which individual freedom may only be limited in the general interest (see Navalnyy, cited above, § 174). 70. Thus, the totality of the above factors indicates that the actual ulterior purpose of the impugned measures was to punish the applicant for his active political engagement and to prevent him from participating as a representative of the opposition in the referendum campaign. In the light of these considerations, the Court finds that the restriction of the applicant ’ s liberty was imposed for purposes other than those prescribed by Article 5 § 1 (c) of the Convention. 71. There has accordingly been a violation of Article 18 of the Convention taken in conjunction with Article 5. IV. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION 72. The applicant further complained that his arrest and detention had also been in breach of Article 11 of the Convention, which provides: “ 1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. 2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.” 73. 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. 74. However, having regard to its conclusions under Article 5 §§ 1 and 4 of the Convention and Article 18 of the Convention with regard to the same set of facts, the Court considers that it is unnecessary to examine separately the complaint under Article 11 of the Convention (compare Rasul Jafarov, cited above, § 170). V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 75. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 76. The applicant claimed 30,000 euros (EUR) in respect of non ‑ pecuniary damage. 77. The Government submitted that the amount claimed by the applicant was unsubstantiated and excessive. 78. The Court considers that the applicant has suffered non-pecuniary damage which cannot be compensated for solely by the finding of a violation, and that compensation should thus be awarded. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant the sum of EUR 15,000 under this head, plus any tax that may be chargeable on this amount. B. Costs and expenses 79. The applicant claimed EUR 5,245 for the costs and expenses incurred in the domestic proceedings and before the Court. In support of his claim, the applicant submitted a contract between himself and his lawyer detailing the specific legal services to be provided in the domestic proceedings and before the Court. According to that contract, the amounts due were to be paid in the event that the domestic court or the Court granted the applicant ’ s claims for just satisfaction. The applicant asked that the compensation in respect of costs and expenses be paid directly into his representative ’ s bank account. 80. The Government considered that the claim was unsubstantiated and excessive. In particular, the Government submitted that the costs and expenses related to the legal services in the domestic proceedings and before the Court had not actually been incurred, because the amounts claimed had not been paid by the applicant. They also noted that a number of legal services stipulated in the contract had not been provided at all. 81. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. The Court notes that, although the applicant has not yet actually paid the legal fees stipulated in the contract, he is bound to pay them pursuant to a contractual obligation. Accordingly, in so far as the lawyer is entitled to seek payment of his fees under the contract, those fees were “actually incurred” (see Pirali Orujov v. Azerbaijan, no. 8460/07, § 74, 3 February 2011). Having regard to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 2,000, plus any tax that may be chargeable to the applicant on that amount, to be paid directly into the applicant ’ s representative ’ s bank account. C. Default interest 82. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 5 § 1 of the Convention, finding that there had been no grounds to bring criminal charges against the applicant and that he had been arrested and placed in pre-trial detention without a reasonable suspicion that he had committed an offence. It also held that there had been a violation of Article 5 § 4 of the Convention, owing to the lack of an effective review of the lawfulness of the applicant’s detention. Lastly, it held that there had been a violation of Article 18 in conjunction with Article 5, finding that the totality of the factors in the applicant’s case indicated that the ulterior purpose of his arrest and detention had been to punish him for his active political engagement and to prevent him from taking part in the referendum campaign as a member of the opposition. The Court noted in particular that the arrest and detention had not only affected the applicant and other opposition activists and supporters, but also the very essence of democracy as a means of organising society, in which individual freedom could only be limited in the general interest. |
321 | Prohibition of slavery and forced labour (Article 4) | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Relevant Italian Law 36. According to Article 50 sub-articles 1 and 2 of the Code of Criminal Procedure, the Public Prosecutor undertakes criminal proceedings when the conditions for archiving a case are not fulfilled. When the complaint of the injured party or an authorisation to proceed is not required, criminal proceedings are undertaken ex proprio motu. According to Article 408 of the Criminal Code of Procedure, a request to archive a case is made if the notice of the crime ( notizia di reato ) is unfounded. Such a request is transmitted together with the relevant file and documents to the judge for preliminary inquiry. Notice of such a request is given to any victim who has previously declared his or her wish to be informed of any such action. The latter notice includes information about the possibility to consult the case-file and to submit an objection ( opposizione ), together with a reasoned request to continue the preliminary investigation. 37. Article 55 (1) of the Code of Criminal Procedure provides that the judicial police must, even on their own initiative, receive notice of crimes, prevent further crimes, find the perpetrators of crimes, take any measures necessary to ensure the sources of evidence and the collection of any other relevant material which might be needed for the application of the criminal law. 38. According to the Italian Criminal Code, at the time of the relevant facts, assault/battery ( percosse ), wounding and wounding with intent ( lesione personale, lesioni personali colpose ), kidnapping ( sequestro di persona ), sexual violence (including rape but not only) ( violenza sessuale ), private violence ( violenza privata ), violence or threat for the purposes of forcing the commission of an offence ( violenza o minaccia per costringere a commettere un reato ), and threats ( minaccia ) are crimes punishable by imprisonment for periods ranging from one day to six months for the more minor offence and to five years to ten years for the more serious offence. Moreover, some of these crimes are subject to higher prison sentences when the crime is committed against, inter alia, a descendant or wife, as for example in the case of kidnapping, or are subject to the application of aggravating circumstances when, as in the case of sexual violence, the victim is younger than fourteen years of age, the victim is younger than sixteen years of age and has been assaulted by an ascendant parent or tutor, or the victim was subject to limited personal liberty. 39. Article 572 of the Criminal Code provides for a prison sentence of up to five years for anyone found guilty of ill-treating a member of his or her family, a child under fourteen years of age, or a person under his or her authority or who has been placed in his or her care for the purposes of education, instruction, care, supervision or custody. 40. The Italian Criminal Code, at the time of the present case, also included specific provisions relating to minors, which, in so far as relevant, read as follows: Article 573 “Whoever takes away from the parent having parental authority or the curator, without the latter’s consent, a minor over fourteen years of age with his or her consent is punished by imprisonment of a period of a maximum of two years upon the complaint of the said parent or curator. The punishment is diminished if the purpose of the taking away is marriage and increased if it is lust.” Article 609 – quarter (as amended in 2006) “A term of imprisonment of five to ten years is applicable for the offence of sexual acts not covered by the offence of sexual violence when the victim is: 1) Under twelve years of age, 2) Under sixteen years of age, if the aggressor is the ascendant, parent, or the latter’s cohabitee, tutor or any other person having the victim’s care for the purposes of education, instruction, care, supervision or custody and with whom the victim cohabits. Save for the circumstances provided for under the offence of sexual violence, the ascendant, parent, or the latter’s cohabitee, and the tutor who has abused his or her powers connected to his or her position and is guilty of sexual acts with a minor older than sixteen years of age, is punished by imprisonment of from three to six years.” 41. Law no. 154 of 2001 introduced a number of measures against violence in family relations. These included precautionary and permanent measures regarding the ousting of the accused from the family home upon a decree to this effect by a judge. 42. Italy adopted Law no. 228, namely the Law on Measures to Prevent Trafficking in Human Beings, on 11 August 2003. The latter has added a number of offences to the Criminal Code, which in so far as relevant read as follows: Article 600 (to be held in slavery or servitude) “Whoever exercises over a person powers corresponding to those of ownership, that is, whoever reduces or maintains a person in a state of continued subjection, forcing the person into labour or sexual services or begging, or in any event services involving exploitation, is punished by imprisonment of a period of eight to twenty years. The holding of a person in a state of subjection occurs when such conduct is carried out by means of violence, threats, deception, abuse of authority or taking advantage of a situation of physical or mental inferiority or of a situation of need, or through the promise or the payment of a sum of money or other advantage to the individual who has authority over the person. The punishment is increased by a third to a half if the facts mentioned in subparagraph one above are directed against a minor of less than eighteen years of age or if they are intended for the exploitation of prostitution or aimed at the removal of organs.” Article 601 (human trafficking) “Whoever commits human trafficking for the purposes of holding a person in servitude or slavery as mentioned in article 600 above and induces such person, by means of violence, threats, deception, abuse of authority or taking advantage of a situation of physical of mental inferiority or of a situation of need, or through the promise or donation of a sum of money or other advantages to the individual who has authority over the said person, to enter or stay or leave the territory of the state or to displace him or herself internally, is punished by imprisonment of a period of eight to twenty years. The punishment is increased by a third to a half if the facts mentioned in subparagraph one above are directed against a minor of less than eighteen years of age or if they are intended for the exploitation of prostitution or aimed at the removal of organs.” Article 602 (purchase and alienation of slaves) “Whoever, save for the cases indicated in article 601, purchases, alienates or sells a person in the situation laid down in article 600, is punished by imprisonment of a period of eight to twenty years. The punishment is increased by a third to a half if the facts mentioned in subparagraph one above are directed against a minor of less than eighteen years of age or if they are intended for the exploitation of prostitution or aimed at the removal of organs.” 43. Law no. 228 also included other changes to the Criminal Code in relation to the above articles when taken in conjunction with pre-existing ones, such as Article 416, whereby it provided for specific punishments if association to commit a crime was directed towards committing any of the crimes in articles 600 to 602. It further provided for administrative sanctions in respect of juridical persons, societies and associations for crimes against individual personality and made the relevant changes to the Criminal Code of Procedure, including its provisions regarding interception of conversations or communications and undercover agents, which became applicable to the new offences. Law no. 228 also created a fund for anti-trafficking measures and the institution of a special assistance programme for victims of the crimes under articles 600 and 601 of the Criminal Code, together with provision for preventive measures. In so far as relevant, articles 13 and 14 of the said law read as follows: Article 13 “Save for the cases provided for under article 16- bis of legislative decree no. 8 of 15 January 1991, converted and modified by law no. 82 of 15 March 1991, and successive amendments, for the victims of the crimes under article 600 and 601 of the criminal code, as substituted by the present law, there shall be instituted ... a special assistance programme that guarantees temporary, adequate board and lodging conditions and health assistance. The programme is defined by regulation still to be adopted (...)” Article 14 “In order to reinforce the effectiveness of the action on prevention of the crimes of slavery and servitude and crimes related to human trafficking, the Minister for Foreign Affairs defines policies of cooperation in respect of any States interested in/affected by such crimes, bearing in mind their collaboration and the attention given by such States to the problems of respecting human right. The said Minister must ensure, together with the Minister of Equal Opportunities, the organisation of international meetings and information campaigns, particularly in States from which most victims of such crime come. With the same aim, the Ministers of Interior, of Equal Opportunities, of Justice and of Labour and Social Policy, must organise where necessary training courses for personnel and any other useful initiative.” 44. Law No. 189 of 30 July 2002 amended earlier laws regarding immigration. Its Article 18 relates to stays for reasons of social protection and in so far as relevant reads as follows: 1. When the existence of situations of violence or serious exploitation in respect of a foreigner are established during police operations, investigations or proceedings regarding the crimes under article 3 of Law no. 75 of 20 February 1958 [crimes related to prostitution] or during assistance intervention by the local social services, and there appears to be a concrete peril for his or her safety as a result of his or her attempts to escape from the influence of the association engaging in any of the above-mentioned crimes, or the declarations made during the preliminary investigation or the proceedings, the Police Commissioner upon request of the Public Prosecutor or with a favourable suggestion by the said authority, releases a special residence permit to allow the foreigner to escape the said violence and influence of the criminal organisation and to participate in a programme of assistance and social integration. 2. The elements showing the subsistence of such conditions, particularly the gravity and imminence of the peril together with the relevance of the help offered by the foreigner for the identification and capture of those responsible for the said crimes, must be communicated to the Police Commissioner with the above mentioned request or suggestion. The procedure for participating in such a programme is communicated to the mayor.” The text states that the permit released for such purposes has a duration of six months and may be renewed for one year or for as long as necessary in the interest of justice. It also provides the conditions on the basis of which the permit may be revoked, what it entails, and who may issue it. 45. According to a Report of the Expert Group Meeting organized by the United Nations Division for the Advancement of Women, Department of Economic and Social Affairs (DAW/DESA), in collaboration with the United Nations Office on Drugs and Crime (ODC), of November 2002 entitled Trafficking in Women and Girls (EGM/TRAF/2002/Rep.1), in the first two years of implementation of this provision, 1,755 people – mostly women and girls – have been accepted in the programmes of assistance and social integration, and about 1,000 have received a residence permit. A hotline has been established, and more than 5,000 people have received concrete help in terms of information, counselling and health care. B. Relevant Bulgarian Law 46. The Bulgarian law on combating human trafficking entered into force on 20 May 2003. In so far as relevant the provisions read as follows: Article 1 “This Law shall provide for the activities aimed at preventing and counteracting the illegal trafficking in human beings for the purposes of: a. Providing protection and assistance to victims of such trafficking, especially to women and children, and in full compliance with their human rights; b. Promoting co-operation between the governmental and municipal authorities as well as between them and NGOs for fighting the illegal trafficking in human beings and developing the national policy in this area.” Article 16 “The diplomatic and consular posts of the Republic of Bulgaria abroad shall provide assistance and co-operation to Bulgarian nationals who have become victims of illegal trafficking for their return to the country in accordance with their powers and with the legislation of the relevant foreign country.” Article 18 “(1) In compliance with the Bulgarian legislation and the legislation of the accepting country, the diplomatic and consular posts of the Republic of Bulgaria abroad shall distribute amongst the relevant individuals and the risk groups information materials about the rights of the victims of human trafficking. (2) The diplomatic and consular posts of the Republic of Bulgaria abroad shall provide information to the bodies of the accepting country regarding the Bulgarian legislation on human trafficking.” 47. Article 174 (2) of the Bulgarian Code of Criminal Procedure in force at the time of the events read as follows: “When aware of the commission of a criminal offence punishable by law, civil servants are duty bound to immediately inform the organ competent to undertake preliminary inquiries and to take the necessary measures to preserve the elements of the offence.” 48. Article 190 of the Bulgarian Code of Criminal Procedure states: “There shall be considered to exist sufficient evidence for the institution of criminal proceedings where a reasonable supposition can be made that a crime might have been committed.” 49. In so far as relevant the Bulgarian Criminal Code reads as follows: Article 177(1) “Whoever coerces a person to contract a marriage, which is thereafter annulled on this ground, will be punished by imprisonment of a maximum period of three years. (2) Whoever kidnaps a woman with a view to coercing her to marry, will be punished by imprisonment of a maximum period of three years; if the victim is a minor, the punishment will be imprisonment for a period of up to five years.” Article 178 “(1) A parent or any other relative who receives a sum of money in order to authorise the marriage of his or her daughter or a relative, will be punished by imprisonment of a maximum period of one year or by a fine of between 100 to 300 levs (BGN) together with a public reprimand. (2) the same punishment applies to whoever pays or negotiates the price.” Article 190 “Whoever abuses his or her parental authority to coerce a child, not having attained sixteen years of age, to live as a concubine with another person, will be punished by imprisonment of a period of three years, or by a control measure without deprivation of liberty (пробация) together with a public reprimand.” Article 191 “(1) All adults who without having contracted marriage are living as concubines with a female who has not attained sixteen years of age will be punished by imprisonment of a period of two years, or by a control measure without deprivation of liberty (пробация) together with a public reprimand. (...)” Article 159a “The persons who select, transport, hide or receive individuals or groups thereof with the aim of using such individuals for the purposes of prostitution, forced labour or the removal of organs, or to maintain them in a state of forced subordination, with or without their consent, are punished by imprisonment of a period of from one to eight years and by a fine of a maximum of 8,000 levs (BGN). (2) When the offence in paragraph one above is committed 1) against an individual, who has not attained eighteen years of age, 2) with coercion or false pretences, 3) through kidnapping or illegal detention, 4) by taking advantage of a state of dependence, 5) by means of abuse of power, 6) through the promise, giving or receipt of benefits, the punishment is imprisonment for a period of two to ten years and a fine of a maximum of 10,000 levs (BGN).” Article 159b “Whoever selects, transports, hides or receives individuals or groups thereof and transfers them by crossing the border of the country with the aim mentioned in sub-paragraph 159 (a) above, will be punished by imprisonment for a period of three to eight years and by a fine of a maximum of 10,000 levs (BGN). (2) if such an act takes place in the conditions mentioned in Article 159 (a) (2), the punishment will be imprisonment of a period of five to ten years and a fine of a maximum of 15,000 levs (BGN).” Article 159c “If the offences mentioned in Article 159 (a) and (b) above are committed by a recidivist or are ordered by a criminal organisation, the punishment is imprisonment for a period of five to fifteen years and a fine of a maximum of 20,000 levs (BGN); the tribunal may also order the seizure of part or the entirety of the possessions of the actor.” III. RELEVANT INTERNATIONAL TREATIES AND OTHER MATERIALS A. General 50. The Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power adopted by the United Nations General Assembly resolution 40/34 of 29 November 1985, in so far as relevant reads as follows: “ 1. “Victims” means persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are in violation of criminal laws operative within Member States, including those laws proscribing criminal abuse of power. 2. A person may be considered a victim, under this Declaration, regardless of whether the perpetrator is identified, apprehended, prosecuted or convicted and regardless of the familial relationship between the perpetrator and the victim. The term “victim” also includes, where appropriate, the immediate family or dependants of the direct victim and persons who have suffered harm in intervening to assist victims in distress or to prevent victimisation.” B. Trafficking 51. An overview of the relevant international instruments pertaining to trafficking in human beings can be found in Rantsev v. Cyprus and Russia, no. 25965/04, 7 January 2010. 52. The Palermo Protocol was ratified by Bulgaria on 5 December 2001 and by Italy on 2 August 2006, both States having previously signed the protocol in December 2000. The Council of Europe Convention on Action against Trafficking in Human Beings (“the Anti-Trafficking Convention”) was signed by Bulgaria on 22 November 2006 and ratified on 17 April 2007. It entered into force in respect of Bulgaria on 1 February 2008. It was signed by Italy on 8 June 2005, ratified on 29 November 2010 and entered into force in respect of Italy on 1 March 2011. 53. For easiness of reference the relevant definitions for the purposes of the Anti-Trafficking Convention are reproduced hereunder: a “ Trafficking in human beings” shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs; b The consent of a victim of “trafficking in human beings” to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used; c The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered “trafficking in human beings” even if this does not involve any of the means set forth in subparagraph (a) of this article; d “Child” shall mean any person under eighteen years of age; e “Victim” shall mean any natural person who is subject to trafficking in human beings as defined in this article. 54. The explanatory report to the Anti-Trafficking Convention 16.V.2005 reveals further detail regarding the definition of trafficking. In particular in respect of “exploitation”, in so far as relevant, it reads as follows: 85. The purpose must be exploitation of the individual. The Convention provides: “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”. National legislation may therefore target other forms of exploitation but must at least cover the types of exploitation mentioned as constituents of trafficking in human beings. 86. The forms of exploitation specified in the definition cover sexual exploitation, labour exploitation and removal of organs, for criminal activity is increasingly diversifying in order to supply people for exploitation in any sector where demand emerges. 87. Under the definition, it is not necessary that someone have been exploited for there to be trafficking in human beings. It is enough that they have been subjected to one of the actions referred to in the definition and by one of the means specified “for the purpose of” exploitation. Trafficking in human beings is consequently present before the victim’s actual exploitation. 88. As regards “the exploitation of the prostitution of others or other forms of sexual exploitation”, it should be noted that the Convention deals with these only in the context of trafficking in human beings. The terms “exploitation of the prostitution of others” and “other forms of sexual exploitation” are not defined in the Convention, which is therefore without prejudice to how states Parties deal with prostitution in domestic law. The explanatory report continues to list the other types of exploitation, namely forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs and gives their definition according to the relevant international instruments and the ECHR case-law where available. C. Marriage 1. Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages 55. Following the General Assembly of the United Nations resolution 843 (IX) of 17 December 1954, declaring that certain customs, ancient laws and practices relating to marriage and the family were inconsistent with the principles set forth in the Charter of the United Nations and in the Universal Declaration of Human Rights, and calling on states to develop and implement national legislation and policies prohibiting such practices, the Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages was opened for signature and ratification by General Assembly resolution 1763 A (XVII) of 7 November 1962. Italy signed the Convention on 20 December 1963, but has to date not ratified the Convention. The Bulgarian State has yet to sign the Convention. 56. The relevant provisions read as follows: Article 1 “1. No marriage shall be legally entered into without the full and free consent of both parties, such consent to be expressed by them in person after due publicity and in the presence of the authority competent to solemnize the marriage and of witnesses, as prescribed by law. 2. Notwithstanding anything in paragraph 1 above, it shall not be necessary for one of the parties to be present when the competent authority is satisfied that the circumstances are exceptional and that the party has, before a competent authority and in such manner as may be prescribed by law, expressed and not withdrawn consent.” Article 2 “States Parties to the present Convention shall take legislative action to specify a minimum age for marriage. No marriage shall be legally entered into by any person under this age, except where a competent authority has granted a dispensation as to age, for serious reasons, in the interest of the intending spouses.” Article 3 “All marriages shall be registered in an appropriate official register by the competent authority.” 2. The Parliamentary Assembly of the Council of Europe Resolution 1468 (2005) – Forced marriages and child marriages “1. The Parliamentary Assembly is deeply concerned about the serious and recurrent violations of human rights and the rights of the child which are constituted by forced marriages and child marriages. 2. The Assembly observes that the problem arises chiefly in migrant communities and primarily affects young women and girls. 3. It is outraged by the fact that, under the cloak of respect for the culture and traditions of migrant communities, there are authorities which tolerate forced marriages and child marriages although they violate the fundamental rights of each and every victim. 4. The Assembly defines forced marriage as the union of two persons at least one of whom has not given their full and free consent to the marriage. 5. Since it infringes the fundamental human rights of the individual, forced marriage can in no way be justified. 6. The Assembly stresses the relevance of United Nations General Assembly Resolution 843 (IX) of 17 December 1954 declaring certain customs, ancient laws and practices relating to marriage and the family to be inconsistent with the principles set forth in the Charter of the United Nations and in the Universal Declaration of Human Rights. 7. The Assembly defines child marriage as the union of two persons at least one of whom is under 18 years of age.” 3. The Parliamentary Assembly of the Council of Europe Resolution 1740 (2010) – The situation of Roma in Europe and relevant activities of the Council of Europe “24. The Assembly calls on the Roma community and its representatives to fight discrimination and violence against Roma women and girls in their own community. In particular, the problems of domestic violence and of forced and child marriages, which constitute a violation of human rights, need to be addressed also by the Roma community itself. Custom and tradition cannot be used as an excuse for human rights violations, but should instead be changed. The Assembly calls on member states to support Romani women activists who engage in debates within their community about the tensions between the preservation of a Romani identity and the violation of women’s rights including through early and forced marriages.” 4. The Strasbourg Declaration on Roma 57. More recently, at the Council of Europe High Level Meeting on Roma, Strasbourg, 20 October 2010, the member States of the Council of Europe agreed on a non-exhaustive list of priorities, which should serve as guidance for more focused and more consistent efforts at all levels, including through active participation of Roma. These included: “Women’s rights and gender equality (22) Put in place effective measures to respect, protect and promote gender equality of Roma girls and women within their communities and in the society as a whole. (23) Put in place effective measures to abolish where still in use harmful practices against Roma women’s reproductive rights, primarily forced sterilisation. Children’s rights (24) Promote through effective measures the equal treatment and the rights of Roma children especially the right to education and protect them against violence, including sexual abuse and labour exploitation, in accordance with international treaties. Combat trafficking (29) Bearing in mind that Roma children and women are often victims of trafficking and exploitation, devote adequate attention and resources to combat these phenomena, within the general efforts aimed at curbing trafficking of human beings and organised crime, and, in appropriate cases, issue victims with residence permits.” COMPLAINTS 58. The applicants raised different complaints under Articles 3, 4, 13 and 14 of the Convention and under many other international treaties. 59. They complain that the first applicant suffered ill-treatment, sexual abuse and forced labour, as did (to a lesser extent) the second and third applicants at the hands of the Roma family in Ghislarengo, and that the Italian authorities (especially the Public Prosecutor in Vercelli) failed to investigate the events adequately. 60. They also complain that the first and third applicants were ill-treated by Italian police officers during their questioning. 61. They complain that the first and third applicants were not provided with lawyers and/or interpreters during their interviews, were not informed in what capacity they were being questioned, and were forced to sign documents the content of which they were unaware. 62. They complain that their treatment by the Italian authorities was based on the fact that they were of Roma ethnic origin and Bulgarian nationality. 63. Finally, they complain that the Bulgarian authorities (notably the Bulgarian consular authorities in Italy) did not provide them with the required assistance in their dealings with the Italian authorities, but simply served as a channel of communication. THE LAW I. PRELIMINARY OBJECTIONS A. The Bulgarian and Italian Governments’ objection as to abuse of the right of petition 64. The Bulgarian Government considered that there had been no violation in the present case since the available evidence indicated that the applicants’ stay in Italy had been voluntary, as was the marriage in accordance with the related ethnic rituals. Moreover, they considered the application an abuse of petition in view of the incorrect and unjustifiable abusive language used by the applicants’ representative in his submissions to the Court. 65. The Italian Government did not submit specific reasons in respect of their objection. 66. The applicants submitted that they had been subjected to violations of international law and that both the Italian and Bulgarian authorities had remained passive in the face of such events. 67. The Court recalls that, whilst the use of offensive language in proceedings before it is undoubtedly inappropriate, an application may only be rejected as abusive in extraordinary circumstances, for instance if it was knowingly based on untrue facts (see, for example, Akdivar and Others v. Turkey, 16 September 1996, Reports of Judgments and Decisions 1996-IV, §§ 53-54; Varbanov v. Bulgaria, no. 31365/96, § 36, ECHR 2000-X; and Popov v. Moldova, no. 74153/01, § 49, 18 January 2005). Nevertheless, in certain exceptional cases the persistent use of insulting or provocative language by an applicant against the respondent Government may be considered an abuse of the right of petition within the meaning of Article 35 § 3 of the Convention (see Duringer and Grunge v. France (dec.), nos. 61164/00 and 18589/02, ECHR 2003-II, and Chernitsyn v. Russia, no. 5964/02, § 25, 6 April 2006). 68. The Court considers that although some of the applicants’ representative’s statements were inappropriate, excessively emotive and regrettable, they did not amount to circumstances of the kind that would justify a decision to declare the application inadmissible as an abuse of the right of petition (see Felbab v. Serbia, no. 14011/07, § 56, 14 April 2009). In so far as an application can be found to be an abuse of the right of petition if it is based on untrue facts, the Court notes that the Italian domestic courts themselves considered that it was difficult to decipher the facts and the veracity of the situation (see paragraph 32 above). In such circumstances, the Court cannot consider that the version given by the applicants undoubtedly constitutes untrue facts. 69. It follows that the Governments’ plea must be dismissed. B. The Bulgarian and Italian Governments’ objection as to lack of victim status 70. The Bulgarian Government submitted that there had been no transgression in the present case. Moreover, the second, third and fourth applicants had no direct connection with the alleged violations and were not directly or personally affected by them. Furthermore, the fourth applicant was not a next-of-kin of the first applicant but only the third applicant’s daughter-in-law who accompanied her to Italy. 71. The Italian Government submitted that the second and fourth applicants did not have locus standi in the proceedings since they had suffered no damage as a result of the alleged violations. 72. The applicants submitted that violations had indeed been committed and in consequence they had victim status. Moreover, the second, third and fourth applicants fell within the notion of “victims of crime” according to Articles 1 and 2 of the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (see Relevant international texts above). They further contended that all the applicants had suffered prejudice in the form of physical ill-treatment at the hands of the aggressors and moral damage in the light of the authorities’ inaction, while the second, third and fourth applicants had been trying their best to protect the first applicant. This was evident particularly in so far as it concerned the parents of the first applicant. 73. The Court considers that the Governments’ objection mainly relates to the second, third and fourth applicants in so far as they claim that they are themselves victims of violations of the Convention in respect of the first applicant’s alleged subjection to trafficking in human beings and inhuman and degrading treatment at the hands of third parties. 74. The Court recalls that under Article 3, in respect of disappearance cases, whether a family member is a victim will depend on the existence of special factors which give the suffering of the applicant a dimension and character distinct from the emotional distress which may be regarded as inevitably caused to relatives of a victim of a serious human rights violation. Relevant elements will include the proximity of the family tie – in that context, a certain weight will attach to the parent-child bond –, the particular circumstances of the relationship, the extent to which the family member witnessed the events in question, the involvement of the family member in the attempts to obtain information about the disappeared person and the way in which the authorities responded to those enquiries. In these cases the essence of such a violation does not so much lie in the fact of the “disappearance” of the family member but rather concerns the authorities’ reactions and attitudes to the situation when it is brought to their attention. It is especially in respect of the latter that a relative may claim directly to be a victim of the authorities’ conduct (see, Kurt v. Turkey, 25 May 1998, §§ 130-134, Reports 1998 ‑ III; Timurtaş v. Turkey, no. 23531/94, §§ 91-98, ECHR 2000 ‑ VI; İpek v. Turkey, no. 25760/94, §§ 178-183, ECHR 2004 ‑ II (extracts); and conversely, Çakıcı v. Turkey [GC], no. 23657/94, § 99, ECHR 1999 ‑ IV). 75. The Court has also exceptionally considered that relatives had victim status of their own in situations where there was not a distinct long-lasting period during which they sustained uncertainty, anguish and distress characteristic to the specific phenomenon of disappearances but where the corpses of the victims had been dismembered and decapitated and where the applicants had been unable to bury the dead bodies of their loved ones in a proper manner, which according to the Court in itself must have caused them profound and continuous anguish and distress. The Court thus considered that in the specific circumstances of such cases the moral suffering endured by the applicants had reached a dimension and character distinct from the emotional distress which may be regarded as inevitably caused to relatives of a victim of a serious human rights violation (see, Khadzhialiyev and Others v. Russia, no. 3013/04, § 121, 6 November 2008 and Akpınar and Altun v. Turkey, no. 56760/00, § 86, 27 February 2007). 76. In this light, the Court considers that, although they witnessed some of the events in question, and were, each to a different extent, involved in the attempts to obtain information about the first applicant, the second, third and fourth applicants cannot be considered as victims themselves of the violations relating to the treatment of the first applicant and the investigations in that respect, since the moral suffering endured by them cannot be said to have reached a dimension and character distinct from the emotional distress which may be regarded as inevitably caused to relatives of a victim of a serious human rights violation. 77. The Court notes that this conclusion does not run contrary to the findings in the Rantsev case ( Rantsev v. Cyprus and Russia, no. 25965/04, 7 January 2010) since, in the present case, unlike in the Rantsev case, the first applicant who was subject to the alleged violations is not deceased and is a party to the current proceedings. 78. It follows that the Governments’ objection in respect of the second, third and fourth applicants’ victim status in relation to the complaints under Articles 3 and 4 of the Convention in respect of which the first applicant is the direct victim, including the alleged lack of an investigation in that respect, must be upheld. 79. Moreover, the Court considers that the fourth applicant cannot claim to be a direct victim of any of the alleged violations, while the second applicant can only claim to be a victim in respect of the treatment to which he was himself allegedly subjected by the Serbian family. As regards the third applicant in respect of the alleged ill-treatment she suffered at the hands of the Serbian family in Ghislarengo and the police, the Court considers that there is no element which at this stage could deprive her of victim status. 80. It follows that the Governments’ objection in relation to the fourth applicant in respect of all the complaints and to the second applicant, except in relation to the complaint about the treatment to which he was allegedly subjected by the Serbian family, must be upheld, whereas it must be dismissed in relation to the remaining complaints. 81. Accordingly, those complaints in respect of which the objection was upheld are incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4. C. The Bulgarian Government’s objection as to non-exhaustion of domestic remedies 82. The Bulgarian Government submitted that the applicants had had the opportunity to bring proceedings in relation to the alleged offences. According to Articles 4 and 5 of the Bulgarian Penal Code, proceedings could have been brought against alien subjects who had committed crimes abroad against Bulgarian nationals even if such prosecution had already taken place in another State. Moreover, the applicants could have sought redress under the State Liability for Damage caused to Citizens Act, which was in force at the relevant time and provided that the State was liable for damage caused to citizens by illegal acts, actions or omissions of authorities and officials during or in connection with the performance of administrative activities. Furthermore, the applicants could also have sought redress under the general provisions of the Obligations and Contracts Act. 83. The applicants submitted that they had sent letters to the Prime Minister and the Minister for Foreign Affairs and complained to the Embassy of Bulgaria in Rome, which should have enabled the Bulgarian authorities to take action in accordance with Article 174 (2) of the Code of Criminal Procedure. Moreover, according to Bulgarian law, if a complaint reached an organ which was not competent to deal with the matter it was for that organ to transfer the request to the competent authority. As to an action under the State Liability for Damage caused to Citizens Act, the applicants considered that such an action would not be appropriate since no body had informed them of the means available to safeguard their rights under Article 3 of the same text. 84. For reasons which appear below in respect of the complaints against the Bulgarian State, the Court does not consider it necessary to examine whether the applicants have exhausted all available domestic remedies as regards their complaints against Bulgaria and consequently leaves this matter open (see, mutatis mutandis, Zarb v. Malta, no. 16631/04, § 45, 4 July 2006). II. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION 85. The applicants complained that the first applicant had suffered ill-treatment (including sexual abuse together with a subjection to forced labour), as had to a lesser extent the second and third applicants at the hands of the Roma family in Ghislarengo, and that the authorities (especially the Public Prosecutor in Vercelli) had failed to investigate the events adequately. They also complained that the first and third applicants had been ill-treated by Italian police officers during their questioning. Thus, the Italian and Bulgarian authorities’ actions and omissions were contrary to Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. The complaints concerning the lack of adequate steps to prevent the first applicant’s ill-treatment by the Serbian family by securing her swift release and the lack of an effective investigation into that alleged ill-treatment 1. The parties’ observations (a) The applicants 86. The applicants insisted that their version of events was faithful and that the Governments’ submissions were entirely based on the witness statements of X., Y. and Z., which were contradictory and untruthful. One such example was the fact that X., Y. and Z.’s testimony did not correspond in respect of the venue where the alleged wedding celebrations had taken place. They also contended that any slight discrepancies in the first applicant’s testimony could only have been due to her anxiety as a result of the threats and ill-treatment she had been suffering. They further reiterated that the photos used as evidence had been obtained under threat and that the second applicant had been repeatedly beaten and forced at gun-point to pose in the said pictures. They also argued that the first applicant had been to discotheques and travelled in cars only within the ambit of the planning and actual robberies she was forced to participate in by the Serbian family. As to any medical records, they considered it was for the authorities to provide such materials. 87. In their view, the first applicant had clearly suffered a violation of Article 3 following the treatment she had endured at the hands of the Serbian family, in relation to which no effective investigation had been undertaken to establish the facts and prosecute the offenders. 88. The Italian authorities took seventeen days to free the first applicant, who was found to be in bad shape both physically and mentally. This notwithstanding, no medical examinations were carried out on the first applicant to establish the extent of her injuries. Indeed, to date, the truth had not been established and various items of evidence had been disregarded. The minutes of the search of the villa were incomplete, the substantial amounts of money seized during the raid had not been described, and certain facts had not been examined, such as the finding of multiple passports in the same name. Neither had the investigation examined the first applicant’s claim that she had been repeatedly raped by Y. while having her hands and feet tied to the bed. Nor had any research been done to establish the criminal records of the Serbian family, whose only means of income were the recurring robberies they organised, or in relation to the events, namely the promise of work which had led the applicants to move to Italy. It was evident in their view that the investigation had left room for dissimulation of the facts. 89. Furthermore, the applicants were not allowed access to the investigation file, no translations of the questioning were given to them, and no witness testimony by letters rogatory was taken from the applicants when they returned to Bulgaria, to enable the authorities to correctly establish the facts. (b) The Italian Government 90. The Italian Government submitted that the facts as alleged by the applicants had been entirely disproved during domestic proceedings on the basis of documentary evidence. Moreover, they noted that one of the medical documents mentioned in the facts had not been transmitted to them and the other document had no bearing on the case. As to the injury to the first applicant’s rib, they noted that the third applicant in her complaint to the police in Turin had claimed that the first applicant had had a similar injury which dated back to a prior accident. 91. They noted that criminal investigations for the alleged kidnapping of the first applicant had been initiated immediately following the third applicant’s oral complaints to the police of Turin on 24 May 2003. The Government submitted that it took the authorities until 11 June 2003 to locate the villa where the first applicant was being held (since the third applicant had only provided a vague indication of the premises), to identify the occupants of the villa (no one officially resided there), to observe the happenings in the location and to make preparations for the necessary action leading to the arrest of the occupants and the release of the first applicant without casualties, as the third applicant had alleged that arms were held there. 92. The immediate investigation and arrest which ensued had shown a reality different from that announced by the third applicant in her initial complaint. It appeared that the first applicant had married Y. according to the customs and traditions of their ethnic group, for the price of EUR 11,000. This was evident from a number of photos which had been found at the venue, showing a wedding ceremony in which the first three applicants had participated and where, together with Y., they appeared contented and relaxed. Further photos showed the second applicant receiving money from Y.’s relatives. The conclusion that this consisted of a payment for the bride according to Roma customs and not a kidnapping was even more evident in the light of the numerous contradictions in the first and third applicants’ testimonies, together with the first applicant’s admission of a marriage contract. Moreover, no firearms were found during the raid, which disproved the third applicant’s allegation that they had been threatened by means of a firearm. 93. The Italian Government submitted that this version of events had been considered truthful by the judgment of the Turin Investigating Magistrate of 26 January 2005. It had also been considered probable by the Turin Tribunal in its judgment of 8 February 2006, which according to the Government’s interpretation, concluded that the problem was mainly an economic disagreement in relation to the marriage contract concluded. It was very probable that the marriage contract had not been respected either because of an economic disagreement or because of the treatment of the first applicant following the marriage, which she had related to the third applicant over the phone. The Government reiterated that Roma marriages were specific, as had been accepted by the Court in Muñoz Díaz v. Spain (no. 49151/07, ECHR 2009). 94. They further submitted that the investigation had been carried out immediately and without unnecessary delay and the judicial authorities had not spared any efforts to establish the facts. The scene of the events was isolated and preserved; relevant objects were identified and seized; the occupants of the premises were identified and arrested, and the first applicant was lodged in Caritas premises; the relevant actors and witnesses including the applicants were immediately heard and they were assisted by interpreters, lawyers and psychological experts. Having considered all the above, the judicial authorities had found it more likely that there had been a marriage contract. The Italian Government considered that in view of the evidence, it could not have been concluded otherwise. They further noted that it was not for the Court to establish the facts of the case, unless this was inevitable given the special circumstances, which was not so in the present case. Indeed, as had been proved by the Government, the official investigation had been carried out in depth, as shown by its detailed conclusions. 95. The Italian Government submitted that in the eighteen days between 24 May and 11 June 2003 the third applicant had the status of a witness and had access to the information collected during the investigation to a degree which sufficed to allow her an effective participation in the procedure. From 11 June 2003 onwards the first and third applicants had the status of accused, in relation to which the invoked provisions had no bearing. 2. The Court’s assessment (a) Admissibility 96. The Court notes that it is confronted with a dispute over the exact nature of the alleged events. In this regard, it considers that it must reach its decision on the basis of the evidence submitted by the parties (see Menteşe and Others v. Turkey, no. 36217/97, § 70, 18 January 2005). 97. The Court considers that the medical records in respect of the first applicant dated 22 and 24 June 2003, submitted to the Court at the time of the lodging of the application (see paragraph 18 above), both transferred to the Government on 1 March 2010 and appearing on their secure site, even though not submitted to the investigating authorities, constitute sufficient prima facie evidence that the first applicant may have been subjected to some form of ill-treatment. In the specific circumstances of the case, the latter, together with the uncontested fact that a complaint was lodged with the authorities on 24 May 2003 giving a detailed account of the facts complained of, provides enough basis for the Court to consider that the complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. 98. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. (b) Merits i. General principles 99. The Court reiterates that Article 3 enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment. The obligation on High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken in conjunction with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment, including such ill-treatment administered by private individuals (see A. v. the United Kingdom, 23 September 1998, § 22, Reports 1998-VI). These measures should provide effective protection, in particular, of children and other vulnerable persons and include reasonable steps to prevent ill-treatment of which the authorities had or ought to have had knowledge (see Z and Others v. the United Kingdom [GC], no. 29392/95, § 73, ECHR 2001 ‑ V). 100. The Court reiterates that Article 3 of the Convention requires the authorities to investigate allegations of ill-treatment when they are “arguable” and “raise a reasonable suspicion”, even if such treatment is administered by private individuals (see Ay v. Turkey, no. 30951/96, §§ 59-60, 22 March 2005, and Mehmet Ümit Erdem v. Turkey, no. 42234/02, § 26, 17 July 2008). The minimum standards applicable, as defined by the Court’s case-law, include the requirements that the investigation be independent, impartial and subject to public scrutiny, and that the competent authorities act with exemplary diligence and promptness (see, for example, Çelik and İmret v. Turkey, no. 44093/98, § 55, 26 October 2004). In addition, for an investigation to be considered effective, the authorities must take whatever reasonable steps they can 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 (see, in particular, Batı and Others v. Turkey, nos. 33097/96 and 57834/00, § 134, ECHR 2004-IV (extracts)). ii. Application to the present case 101. The Court notes that the third applicant’s complaint lodged on 24 May 2003 was not supported by any medical records. However, the Court considers that this was logical and that medical evidence could not be expected given that according to that complaint the first applicant was being retained against her will by the Serbian family. In these circumstances, the Court considers that the third applicant’s testimony and the seriousness of the allegations made in the complaint lodged on 24 May 2003 raised a reasonable suspicion that the first applicant could have been subjected to ill-treatment as alleged. This suffices to attract the applicability of Article 3 of the Convention. (a) The steps taken by the Italian authorities 102. As regards the steps taken by the Italian authorities, the Court notes that the police released the first applicant from her alleged captivity within two and a half weeks. It took them three days to locate the villa and a further two weeks to prepare the raid which led to the first applicant’s release. Bearing in mind that the applicants had claimed that the Serbian family was armed, the Court can accept that prior surveillance was necessary. Therefore, in its view, the intervention complied with the requirement of promptness and diligence with which the authorities should act in such circumstances. 103. It follows that the State authorities fulfilled their positive obligation of protecting the first applicant. There has therefore been no violation of Article 3 under this head. (b) The investigation 104. As to the investigation following the first applicant’s release, the Court notes that the Italian authorities questioned X., Y., Z., the first applicant and the third applicant. It does not appear that any other efforts were made to question any third parties who could have witnessed the events at issue. Indeed, the Italian authorities considered that the photos collected at the venue corroborated the alleged assailants’ version of events. However, none of the other people in the photos was ever identified or questioned, a step which the Court considers was essential, given that the applicants maintained that they had been forced at gun-point to pose for such photos. Nor were any attempts made to hear the second applicant, who had been a major actor in the events at issue. Indeed, the Court notes that on the same day that the first applicant was released and heard, the criminal proceedings which had been instituted against the assailants were turned into criminal proceedings against the first and third applicants (see paragraph 25 above). The Court is struck by the fact that following the first applicant’s release it took the authorities less than a full day to reach their conclusions. In this light it stood to reason that the Turin Criminal Court considered it impossible to establish the facts clearly (see paragraph 32 above). 105. The Court also notes that, when released, the first applicant was not subject to a medical examination, notwithstanding the claims that she had been repeatedly beaten and raped. The Court further notes that even assuming that it was true that the events at issue amounted to a marriage in accordance with the Roma traditions, it was still alleged that in the month the first applicant stayed in Ghislarengo she had been beaten and forced to have sexual intercourse with Y. The Court notes that State authorities must take protective measures in the form of effective deterrence against serious breaches of an individual’s personal integrity also by a husband (see Opuz v. Turkey, no. 33401/02, §§ 160-176, 9 June 2009) or partner. It follows that any such allegation should also have required an investigation. However, no particular questioning took place in this respect, nor was any other test undertaken, whether strictly medical or merely scientific. It is of even greater concern that the first applicant was a minor at the time of the events at issue. Indeed, the Convention requires effective deterrence against grave acts such as rape, and children and other vulnerable individuals, in particular, are entitled to effective protection (see, mutatis mutandis, M.C. v. Bulgaria, no. 39272/98, § 150, ECHR 2003 ‑ XII). However, the Italian authorities chose not to investigate this aspect of the complaint. 106. Moreover, the Court notes that the applicants alleged that they had moved to Italy following a promise of work, although none ensued, and that the first applicant was threatened and forced to participate in robberies and private sexual activities during the period of time she remained in Ghislarengo. While this has not been established, the Court cannot exclude that the circumstances of the present case, as reported by the first applicant to the Italian authorities (see paragraph 8 above), had they been proved, could have amounted to human trafficking as defined in international conventions (see Relevant International Texts above), which undoubtedly also amounts to inhuman and degrading treatment under Article 3 of the Convention. In consequence, the Italian authorities had an obligation to look into the matter and to establish all the relevant facts by means of an appropriate investigation which required that this aspect of the complaint be also examined and scrutinized. This was not so, the Italian authorities having opined that the circumstances of the present case fell within the context of a Roma marriage. The Court cannot share the view that such a conclusion sufficed to remove any doubt that the circumstances of the case revealed an instance of human trafficking which required a particularly thorough investigation inter alia because a possible “Roma marriage” cannot be used as a reason not to investigate in the circumstances. Furthermore, the Court observes that the rapid decision of the Italian authorities not to proceed to a thorough investigation had, among other things, the consequence that medical evidence on the physical condition of the first applicant was not even sought. 107. In conclusion, the Court considers that the above elements suffice to demonstrate that, in the particular circumstances of this case, the investigation into the first applicant’s alleged ill-treatment by private individuals was not effective under Article 3 of the Convention. 108. There has therefore been a procedural violation of Article 3. B. The complaint regarding the second and third applicant’s ill-treatment at the hands of the Roma family and the lack of an effective investigation by the Italian authorities in this respect 1. The parties’ observations 109. The applicants complained that the second and third applicants had also suffered ill-treatment and threats at the hands of the Serbian family. In particular, the second applicant had been repeatedly beaten and forced at gun-point to pose in the “wedding” pictures. However, the Italian authorities took no steps to question the second applicant as a victim of ill-treatment and threats, as a result of which they claimed he had been declared 100% invalid by the Vidin Medical Commission on 5 October 2010 (the applicants acknowledged that they had not submitted documents in proof of this). As a result of the stress and anxiety caused, the second applicant had been diagnosed with diabetes shortly after the events at issue. 110. The Italian Government submitted that criminal investigations in respect of threats against and injuries to the second and third applicants had been initiated immediately following the third applicant’s oral complaints to the police of Turin on 24 May 2003. However, it had not resulted from the investigation that their complaints were truthful. According to the Government, it was strange that the second and third applicants claimed to have been beaten on 18 May 2003 and yet they decided to go back to Bulgaria. Furthermore, no medical documents substantiating this claim had been submitted and no firearms had been found during the raid at the villa, which disproved the allegation that they had been threatened at gun-point. 2. The Court’s assessment 111. According to the Court’s case-law, allegations of ill-treatment must be supported by appropriate evidence. To assess this evidence, the Court adopts the standard of proof “beyond reasonable doubt”, although such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Ireland v. the United Kingdom, 18 January 1978, Series A no. 25, § 161 in fine; and Medova v. Russia, no. 25385/04, § 116, ECHR 2009 ‑ ....). 112. The Court notes that, even assuming that the second and third applicants had been previously kept under constraint, it is uncontested that this was no longer so after 18 May 2003. It follows that the second and third applicants, unlike in the case of the first applicant, could have sought medical assistance and acquired medical evidence in support of their claims. However, they did not provide the authorities with any form of medical report to accompany the complaint lodged by the third applicant on 24 May 2003. Moreover, to date, no evidence has been submitted to the Court indicating that the second and third applicants could have been subjected to ill-treatment at the hands of the Serbian family. In this light, the Court considers that there is no sufficient, consistent or reliable evidence to establish to the necessary degree of proof that they were subjected to such ill-treatment. 113. In consequence, the authorities were not given a reasonable cause for suspecting that the second and third applicants had been subjected to improper treatment, which would have required a fully fledged investigation. 114. It follows that the complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. C. The complaint regarding the first and third applicants’ ill-treatment at the hands of the police officers during their questioning 115. The first and third applicants complained about ill-treatment during their interrogation, namely that they were not provided with lawyers and interpreters during that time and that they were forced to sign documents the content of which they had not understood. They further complained about the criminal proceedings with which they were threatened and which were eventually instituted against them, noting that they had only been taken up in order for the authorities to apply pressure on them. They also contended that subsequently the court-appointed lawyer failed to safeguard their interests during the questioning, notably by failing to request that the Serbian family be kept outside the room, by not ensuring adequate interpreters and treatment without threats and most gravely by allowing the first applicant to be kept in a cell for hours following her questioning. 116. The Court firstly notes that the first and third applicants failed to press charges against any alleged offenders from the police force. No official complaint has ever been lodged with the Italian authorities in respect of this alleged ill-treatment. Neither has it been submitted that they attempted to make such a complaint in the context of the proceedings eventually instituted against them. It follows that the first and third applicants failed to exhaust domestic remedies in respect of this complaint. 117. Furthermore, the Court notes that the treatment described by the applicants does not attain the minimum level of severity to make it fall within the scope of Article 3. In particular, the Court considers that the fact that the first and third applicants were warned about the possibility of being prosecuted and imprisoned if they did not tell the truth may be considered to be part of the normal duties of the authorities when questioning an individual, and not an unlawful threat. Moreover, according to the documents submitted by the Italian Government, an interpreter or a lawyer or both accompanied the first and third applicants during the different stages of the interrogation. 118. For these reasons, this complaint must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention D. The complaint regarding the lack of action and an effective investigation into the alleged events against Bulgaria 1. The parties’ observations 119. In respect of Bulgaria, the applicants complained about the delay in the treatment of the second applicant’s complaint of 31 May 2003 by the consular authorities. It took the authorities two days to take action in respect of the complaint, following the applicants’ representative’s aggressive criticisms. They contended that the Bulgarian Government had failed to explain in what way the CRD had assisted the applicants in their interests as required by Article 32 of the Regulations of the Ministry of Foreign Affairs. Indeed, they had not interfered in the choice of interpreters (who remained silent in the face of the treatment suffered by the two applicants during interrogation) or the court-appointed lawyer, nor had a consular representative been present during the questioning. 120. Similarly, no information had been submitted and nothing had been done by the Bulgarian authorities to repatriate the applicants and the National agency for the protection of infants had not been informed in order for it to be able to take the necessary measures. Neither had the Ministry or the Embassy of Bulgaria in Rome informed the Prosecutor’s Office in Bulgaria, which could have undertaken proceedings against the Serbian family. Moreover, the Bulgarian authorities had not informed the Italian authorities that according to Bulgarian law a marriage of a minor Bulgarian national, celebrated abroad, required the prior authorisation of the Bulgarian diplomatic or consular representative (Articles 12, 13 and 131 of the Bulgarian Family Code). In the present case no such request was made or granted. This requirement was valid for all Bulgarian citizens irrespective of their ethnicity and in any case ethnic traditions could not set aside the law. 121. The Bulgarian Government contended that in the absence of any specific allegation of any treatment contrary to Article 3 there could not be a violation of that provision. Moreover, any positive obligations on their part could only arise in respect of actions committed or ongoing in Bulgarian territory. 122. Without prejudice to the above, the Bulgarian Government submitted that the Ministry of Foreign Affairs, the CRD, the Ambassador and the Consul in Rome immediately reacted when notified of the case. They established contact with the Italian authorities and specified that the alleged victim was a minor and was being held against her will. The Bulgarian Ambassador maintained constant communication with the Italian authorities and transferred the information to the second applicant, who had expressed his gratitude in this respect. The fact that adequate and comprehensive measures had been taken by the Bulgarian CRD was also evident from the consular file in relation to the case, which was submitted to the Court. That file contained more than a hundred pages and, on 2 June 2003, it had been sent to the Embassy of Bulgaria in Rome with the instruction to take immediate action in cooperation with the Italian authorities for the release of the first applicant and her return to Bulgaria. 123. The second applicant again solicited the Bulgarian authorities on 11 June 2003 and the CRD again referred to the Embassy of Bulgaria in Rome on the same day. In turn the Embassy replied that the provincial unit of the carabinieri in Turin and the central management of the Vercelli Police had conducted a successful action to release the first applicant from the house; she was found to be in good condition and was under the protection of the public authorities. This information was immediately forwarded to the second applicant. By a letter dated 24 June 2003 the Bulgarian Embassy in Rome notified the CRD that, following a request by the second applicant, information had been received from the Head Office of the Criminal Police of Italy to the effect that the result of the inquiry and declaration of the first applicant indicated that her father had received money for a forthcoming wedding and therefore there were no grounds to institute criminal proceedings against the Serbian family. They further noted that the judicial authorities were considering the possibility of bringing proceedings against the first and third applicants for libel and perjury. The second applicant was informed of this by a letter of 1 July 2003. Subsequently correspondence was maintained between the Consular Section and the applicants and their representative, as well as with the Italian authorities. Thus, within their competence, the Bulgarian authorities had been fully cooperative. 2. The Court’s assessment 124. The Court reiterates that the engagement undertaken by a Contracting State under Article 1 of the Convention 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). The Court’s case-law has defined various instances where the Convention provisions, read in conjunction with the State’s general duty under Article 1, impose an obligation on States to carry out a thorough and effective investigation (see for example Ay v. Turkey, cited above, §§ 59-60; Aksoy v. Turkey, 18 December 1996, § 98, Reports 1996-VI, and Assenov and Others v. Bulgaria, 28 October 1998, § 102, Reports 1998-VIII). However, in each case the State’s obligation applied only in relation to ill-treatment allegedly committed within its jurisdiction (see Al-Adsani v. the United Kingdom [GC], no. 35763/97, § 38, ECHR 2001-XI, where the Court did not uphold the applicant’s claim that the Convention required the United Kingdom to assist one of its citizens in obtaining an effective remedy for torture against another State since it had not been contended that the alleged torture took place in the jurisdiction of the United Kingdom or that the United Kingdom authorities had any causal connection with its occurrence). 125. Similarly, in Rantsev v. Cyprus and Russia (no. 25965/04, §§ 243-247, ECHR 2010 (extracts)), the Court noted that the direct victim’s death had taken place in Cyprus. Accordingly, since it could not be shown that there were special features in that case which required a departure from the general approach, the obligation to ensure an effective official investigation applied to Cyprus alone. Notwithstanding that Ms Rantseva was a Russian national, the Court concluded that there was no free-standing obligation incumbent on the Russian authorities under Article 2 of the Convention to investigate. 126. It follows from the above that in the circumstances of the present case, where the alleged ill-treatment occurred on Italian territory and where the Court has already found that it was for the Italian authorities to investigate the events, there cannot be said to have been an obligation on the part of the Bulgarian authorities to carry out an investigation under Article 3 of the Convention. 127. Moreover, the Convention organs have repeatedly stated that the Convention does not contain a right which requires a High Contracting Party to exercise diplomatic protection, or espouse an applicant’s complaints under international law or otherwise to intervene with the authorities of another State on his or her behalf (see for example, Kapas v the United Kingdom, no. 12822/87, Commission decision of 9 December 1987, Decision and Reports (DR) 54, L. v Sweden, no. 12920/87, Commission decision of 13 December 1988, and Dobberstein v Germany, no. 25045/94, Commission decision of 12 April 1996 and the decisions cited therein). Nevertheless, the Court notes that the Bulgarian authorities repeatedly pressed for action by the Italian authorities, as explained by the Bulgarian Government in their submissions and as shown from the documents submitted to the Court. 128. In conclusion, the Court considers that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 4 OF THE CONVENTION 129. The applicants contended that the treatment the first applicant had suffered at the hands of the Serbian family and the fact that she was forced to take part in organised crime constituted a violation of Article 4. According to the applicants, the violation of the said provision also arose in relation to the entire facts of the case which clearly concerned trafficking in human beings and was contrary to that provision, which reads as follows: “1. No one shall be held in slavery or servitude. 2. No one shall be required to perform forced or compulsory labour. 3. For the purpose of this article the term ‘forced or compulsory labour’ shall not include: (a) any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of [the] Convention or during conditional release from such detention; (b) any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service; (c) any service exacted in case of an emergency or calamity threatening the life or well-being of the community; (d) any work or service which forms part of normal civic obligations.” A. The parties’ submissions 1. The applicants 130. The applicants noted that they had been led to believe that they would find work, but to the contrary the first applicant had been forced to steal and had suffered corporeal injuries as a result of the treatment she received, as proved by the medical documents submitted. They considered that, given the deceit by which they had been persuaded to move to Italy and the ensuing treatment suffered, particularly by the first applicant, the case undoubtedly concerned trafficking in human beings within the meaning of international treaties. They were of the view that both States were responsible for the alleged violation. It was degrading that the Governments were trying to cover up their failings by hiding behind the excuse of Roma customs, which had clearly not been the case, as repeatedly stated by the applicants. Moreover, the applicants failed to understand how the authorities considered that Roma traditions, which clearly amounted to a violation of the criminal law (see sections 177-78 and 190-91 of the Bulgarian Criminal Code, relevant domestic law above), could be overlooked and considered normal. 131. In respect of their complaint against Italy they reiterated their submissions put forward under Article 3. 132. In respect of Bulgaria, the applicants also reiterated their submissions under Article 3. They further noted that even though in Bulgaria a law against human trafficking had been enacted, in practice this had no effect. In fact, the Bulgarian Government had not been able to submit any statistics as to the number of people having been prosecuted under the Criminal Code provisions in this respect. As to prevention, the applicants contended that the Bulgarian Government should have been able to spot the dangers a family like the applicants would have faced when deciding to move to Italy following a suspicious promise of work. They insisted that no relevant questions had been set to the applicants at the border as though a risk for trafficking could have never existed. 2. The Italian Government 133. The Italian Government submitted that in the third applicant’s complaint to the Turin Police of 24 May 2003 there had been no allegation of forced labour of human trafficking, but only a fear that the first applicant could be forced into prostitution. They considered that the Trafficking Convention could not come to play in the circumstances of the case as established by the domestic courts. Moreover the Italian state had not signed or ratified the Trafficking Convention at the time of the events of the case and therefore it was not applicable to them. 134. Nevertheless, criminal investigations for the alleged kidnapping of the first applicant had been initiated immediately following the third applicant’s oral complaints to the police of Turin on 24 May 2003. They noted that a law in relation to human trafficking was only introduced in August 2003 (see Relevant domestic law). They further reiterated their submissions under Article 3, contending that an effective investigation into the circumstances of the case had taken place. 135. Lastly, they submitted that in so far as the Court wanted to examine the State’s conduct vis-á-vis marriage agreements in the Rom community, the Italian Government noted that the first applicant had in fact been freed and returned to Bulgaria. However, it was not for the state to judge the traditions of the Rom minority, their identity or way of life, particularly since the Court itself highlighted the importance of the Rom culture in Munoz Diaz. 3. The Bulgarian Government 136. The Government reiterated that the present case did not concern trafficking in human beings, as the facts did not fall under the definition of trafficking according to Article 4 of the Trafficking Convention. As confirmed by the excerpt of the border police (submitted to the Court) the applicants freely and voluntarily established themselves in Italy according to their right of freedom of movement. The first applicant, although a minor, left the borders of Bulgaria and arrived and resided in Italy with her parents, voluntarily and with their consent. The departure from Bulgarian territory was lawful and the authorities had no reason to prohibit it, allowing such a move according to Article 2 of Protocol No. 4 to the Convention and European Union legislation. Moreover, there had been no evidence of trafficking in human beings on Bulgarian territory, an issue not alleged by the applicants. Indeed, the applicants, alone or through their representative, had not notified any of the Bulgarian institutions in charge of trafficking. Any allegations in this respect could be communicated to the State Agency for Child Protection, the National Committee to Combat Human Trafficking and the Council of Ministers, the Prosecution of the Republic of Bulgaria and the Ministry of Interior which had specific powers under the Criminal Code and the Code of Criminal Procedure to deal with such allegations. 137. They submitted that the present case regarded a personal relationship of a private legal nature in terms of the voluntary involvement in marriage and the related rituals in accordance with the particular ethnicity of the applicants. According to the investigation, the first applicant freely married Y. in accordance with their traditions. The accepted and practiced model of Roma marriages provided for early and ubiquitous marriages. Marriage age was governed by custom according to the group to which the persons belonged, and in practice was generally a young age. Roma marriages were considered concluded with a wedding in the presence of the community and it did not require a civil or religious procedure to be considered sacred and indissoluble. The traditional Roma marriage consisted of two phases. The first, the engagement, regulated the pre-requisites of marriage such as the fixing of the bride’s “price”/“ransom”/”dowry”, which is a bargaining made by the fathers in view of the fact that the bride will then be part of the family of the groom. The second is the wedding, which includes a set of rituals, the most important of which was the consummation of the marriage, bearing in mind that virginity was a pre-requisite to the marriage. The Bulgarian Government submitted that from the testimony of X. Y. and Z., as drawn up by the Italian Urgent Action Squad, the wedding ritual of the applicant to Y. conformed to this traditional practice. 138. Moreover, it had not been established that there had been any debasing or degrading attitudes or instances of forced labour. The Government submitted that in her testimony of 11 June 2003, the first applicant declared to have married Y. and did not claim that she was dissatisfied with her marriage or that herself or her parents had been ill-treated or forced to work. Thus, according to the Government, the facts of the case regarded a regular consummation of a marriage and the undertaking of usual household chores, which could not amount to treatment prohibited under Article 4, particularly since the first applicant admitted to having freely moved to Italy, travelled by car and attended discotheques. 139. The Government considered that when the Bulgarian Consular Section signalled a coercive holding of a minor-aged female, the Italian authorities gave full assistance and carried out an effective investigation, but after having established the above-mentioned facts, could not conclude that the case concerned trafficking in human beings. They noted that the Italian authorities “freed” the first applicant who was found to be in a good health and mental condition. She was questioned by staff specialised in interaction with minors and had access to an interpreter. Moreover, the authorities provided support to her and her relatives, including accommodation and payment of costs. The Italian authorities took all the relevant witness testimony and other measures to establish the facts and the applicants had ample opportunity to participate as witnesses in the investigation, throughout which they were provided with an interpreter. Thus, the relatives had also been directly involved in the investigation. Therefore, the criteria for an effective investigation according to the Court’s case-law ( Rantsev v. Cyprus and Russia, no. 25965/04, § 233, 7 January 2010) had been fulfilled. 140. As to the steps taken by the Bulgarian authorities, the Bulgarian Government reiterated their submissions under Article 3 (see paragraphs 121-123 above). Indeed both the Bulgarian and Italian authorities had reacted promptly. It followed that the actions of both States had been in accordance with Convention obligations ( Rantsev, cited above, § 289). 141. They further submitted that in so far as the case could be considered under Article 4 the Bulgarian authorities had fulfilled their positive obligations in an adequate and timely manner. The Bulgarian Government noted that the Trafficking Convention entered into force in respect of Bulgaria in 2007 and therefore was not applicable at the time of the events in the present case. However, the Government submitted that Bulgaria had fulfilled its positive obligation and taken the necessary measures to establish a workable and effective legislation on the criminalisation of human trafficking. 142. They had further put in place an appropriate legislative and administrative framework. They noted that by 2003 the following legislation was applicable, in connection with the prevention, combating and criminalisation of trafficking: - The United Nations Convention against Transnational Organised Crime, adopted on 15 November 2000, ratified by Bulgaria in 2001 - The Protocol to Prevent, Suppress and Punish Trafficking in persons, Especially Women and Children of 15 November 2000 - Recommendation No. R (85) 11 to the Member States on the position of the victim in the framework of criminal law and procedure, adopted by the Committee of Ministers of the Council of Europe on 28 June 1985 - Recommendation 1545 (2002) on the campaign against trafficking in women of January 21, 2002 - Council Directive 2004/81/EC of 29 April 2004 on the residence permit issued to third country nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration and who cooperate with the competent authorities. - European Parliament resolutions related to exploitation of prostitution and trafficking in people. Moreover, by means of amendments to the Criminal Code in 2002, human trafficking had been criminalised (see Relevant domestic law) and in 2003 a specific law on combating human trafficking establishing effective counter-action leverage was passed by parliament. Public information was also provided by the national media on the risks of trafficking in persons. Thus, the Bulgarian Government took all feasible positive measures on the creation of an effective domestic system for the prevention, investigation and prosecution of such offences. Moreover, the applicants had made no complaint in respect of this framework. 143. The Bulgarian Government also submitted that they had fulfilled their positive obligation to take protective measures. They submitted that there was no evidence that they had been particularly notified about any particular circumstances which could give rise to a justified and reasonable suspicion of a real and immediate risk to the first applicant before she left to Italy and later during her stay there. In consequence there had not been a positive obligation to take preliminary steps to protect her. 144. As to a procedural obligation to investigate potential trafficking, the Government reiterated that the applicants actions were voluntary, this notwithstanding that the Bulgarian and Italian joint efforts led to the desired result of the first applicant being released and returned to Bulgaria. 145. As to the forensic expertise presented, the Government noted that this could not be considered as valid evidence as it had not been produced according to the law, it having been compiled one month after the first applicant’s return to Bulgaria and not immediately at the time of the alleged events. B. The Court’s assessment 1. Application of Article 4 of the Convention 146. The Court has never considered the provisions of the Convention as the sole framework of reference for the interpretation of the rights and freedoms enshrined therein (see Demir and Baykara v. Turkey [GC], no. 34503/97, § 67, 12 November 2008). It has long stated that one of the main principles of the application of the Convention provisions is that it does not apply them in a vacuum (see Loizidou v. Turkey, 18 December 1996, Reports 1996-VI; and Öcalan v. Turkey [GC], no. 46221/99, § 163, ECHR 2005-IV). As an international treaty, the Convention must be interpreted in the light of the rules of interpretation set out in the Vienna Convention of 23 May 1969 on the Law of Treaties (see Rantsev, cited above, § 273). 147. Under that Convention, the Court is required to ascertain the ordinary meaning to be given to the words in their context and in the light of the object and purpose of the provision from which they are drawn (see Golder v. the United Kingdom, 21 February 1975, § 29, Series A no. 18; Loizidou, cited above, § 43). The Court must have regard to the fact that the context of the provision is a treaty for the effective protection of individual human rights and that the Convention must be read as a whole, and interpreted in such a way as to promote internal consistency and harmony between its various provisions (see Stec and Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01, § 48, ECHR 2005-X). Account must also be taken of any relevant rules and principles of international law applicable in relations between the Contracting Parties and the Convention should so far as possible be interpreted in harmony with other rules of international law of which it forms part (see Al-Adsani, cited above, § 55; Demir and Baykara, cited above, § 67; Saadi v. the United Kingdom [GC], no. 13229/03, § 62, ECHR 2008-...; and Ranstev, cited above, §§ 273-275). 148. The object and purpose of the Convention, as an instrument for the protection of individual human beings, requires that its provisions be interpreted and applied so as to make its safeguards practical and effective (see, inter alia, Soering, cited above, § 87; and Artico v. Italy, 13 May 1980, § 33, Series A no. 37). 149. In Siliadin, considering the scope of “slavery” under Article 4, the Court referred to the classic definition of slavery contained in the 1926 Slavery Convention, which required the exercise of a genuine right of ownership and reduction of the status of the individual concerned to an “object” (see Siliadin v. France, no. 73316/01, § 122, ECHR 2005 ‑ VII). With regard to the concept of “servitude”, the Court has held that what is prohibited is a “particularly serious form of denial of freedom” (see Van Droogenbroeck v. Belgium, Commission’s report of 9 July 1980, §§ 78-80, Series B no. 44). The concept of “servitude” entails an obligation, under coercion, to provide one’s services, and is linked with the concept of “slavery” (see Seguin v. France (dec.), no. 42400/98, 7 March 2000; and Siliadin, cited above, § 124). For “forced or compulsory labour” to arise, the Court has held that there must be some physical or mental constraint, as well as some overriding of the person’s will (see Van der Mussele v. Belgium, 23 November 1983, § 34, Series A no. 70; Siliadin, cited above, § 117). 150. The Court is not regularly called upon to consider the application of Article 4 and, in particular, has had only two occasions to date to consider the extent to which treatment associated with trafficking fell within the scope of that Article ( Siliadin and Rantsev, both cited above). In the former case, the Court concluded that the treatment suffered by the applicant amounted to servitude and forced and compulsory labour, although it fell short of slavery. In the latter case, trafficking itself was considered to run counter to the spirit and purpose of Article 4 of the Convention such as to fall within the scope of the guarantees offered by that Article without the need to assess which of the three types of proscribed conduct was engaged by the particular treatment in the case in question. 151. In Rantsev, the Court considered 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 victims, whose movements are often circumscribed. It involves the use of violence and threats against victims, who live and work under poor conditions. It is described in the explanatory report accompanying the Anti-Trafficking Convention as the modern form of the old worldwide slave trade. In those circumstances, the Court concluded that trafficking itself, within the meaning of Article 3(a) of the Palermo Protocol and Article 4(a) of the Anti-Trafficking Convention, fell within the scope of Article 4 of the Convention (see Rantsev, cited above, §§ 281-282). 2. Application to the present case 152. The Court once again highlights that it is confronted with a dispute over the exact nature of the alleged events. The parties to the case have presented diverging factual circumstances and regrettably the lack of investigation by the Italian authorities has led to little evidence being available to determine the case. Having said that, the Court cannot but take its decisions on the basis of the evidence submitted by the parties. 153. In this light, in so far as an objection ratione materiae can be inferred from the Governments’ submissions the Court considers that it is not necessary to deal with this objection since it considers that the complaint, in its various branches, is in any event inadmissible for the following reasons. (a) The complaint against Italy 1. The circumstances as alleged by the applicants 154. The Court has already held above that the circumstances as alleged by the applicants could have amounted to human trafficking. However, it considers that from the evidence submitted there is not sufficient ground to establish the veracity of the applicants’ version of events, namely that the first applicant was transferred to Italy in order to serve as a pawn in some kind of racket devoted to illegal activities. In consequence, the Court does not recognise the existence of circumstances capable of amounting to the recruitment, transportation, transfer, harbouring or receipt of persons for the purpose of exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs. It follows that the applicants’ allegation that there had been an instance of actual human trafficking has not been proved and therefore cannot be accepted by the Court. 155. Since it has not been established that the first applicant was a victim of trafficking, the Court considers that the obligations under Article 4 to penalise and prosecute trafficking in the ambit of a proper legal or regulatory framework cannot come into play in the instant case. 156. As to the Article 4 obligation on the authorities to take appropriate measures within the scope of their powers to remove the individual from that situation or risk, the Court notes that irrespective of whether or not there existed a credible suspicion that there was a real or immediate risk that the first applicant was being trafficked or exploited, the Court has already found under Article 3 of the Convention that the Italian authorities had taken all the required steps to free the applicant from the situation she was in (see paragraph 103 above). 157. In so far as Article 4 also provides for a procedural obligation to investigate situations of potential trafficking, the Court has already found in its assessment under the procedural aspect of Article 3 above (see paragraphs 107-108 above) that the Italian authorities failed to undertake an effective investigation into the circumstances of the present case. 158. In consequence the Court does not find it necessary to examine this limb of the complaint. 159. Given the above, the Court considers that the overall complaint under Article 4 against Italy based on the applicant’s version of events is inadmissible, as manifestly ill-founded pursuant to Article 35 §§ 3 and 4 of the Convention. ii. The circumstances as established by the authorities 160. The Court notes that the authorities concluded that the facts of the case amounted to a typical marriage according to the Roma tradition. The first applicant, who was aged seventeen years and nine months at the time of the alleged marriage, never denied that she willingly married Y. She did, however, deny that any payment had been made to her father for the marriage. Nevertheless, the photos collected by the police appear to suggest that an exchange of money in fact took place. Little has been established in respect of any ensuing treatment within the household. 161. The Court therefore considers that in relation to the events as established by the authorities, again, there is not sufficient evidence indicating that the first applicant was held in slavery. Even assuming that the applicant’s father received a sum of money in respect of the alleged marriage, the Court is of the view that, in the circumstances of the present case, such a monetary contribution cannot be considered to amount to a price attached to the transfer of ownership, which would bring into play the concept of slavery. The Court reiterates that marriage has deep-rooted social and cultural connotations which may differ largely from one society to another (see Schalk and Kopf v. Austria, no. 30141/04, § 62, ECHR 2010). According to the Court, this payment can reasonably be accepted as representing a gift from one family to another, a tradition common to many different cultures in today’s society. 162. Neither is there any evidence indicating that the first applicant was subjected to “servitude” or “forced or compulsory” labour, the former entailing coercion to provide one’s services (see Siliadin, cited above § 124) and the latter bringing to mind the idea of physical or mental constraint. 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 or she “has not offered himself or herself voluntarily” (see Van der Mussele, cited above, § 34, and Siliadin, cited above § 117). The court observes that despite the first applicant’s testimony claiming that she was forced to work, the third applicant explained in her complaint of 24 May 2003 that her family had been employed to do housework. 163. Furthermore, according to the Court the post facto medical records submitted are not sufficient to determine beyond reasonable doubt that the first applicant actually suffered some form of ill-treatment or exploitation as understood in the definition of trafficking. Neither can the Court consider that the sole payment of a sum of money suffices to consider that there had been trafficking in human beings. Nor is there evidence suggesting that such a union was contracted for the purposes of exploitation, be it sexual or other. Thus, there is no reason to believe that the union was undertaken for purposes other than those generally associated with a traditional marriage. 164. The Court notes with interest the Parliamentary Assembly of the Council of Europe’s resolutions (see Relevant international texts above) showing concern in respect of Roma women in the context of forced and child marriages (the latter defined as the union of two persons at least one of whom is under 18 years of age) and it shares these apprehensions. The Court, however, notes that the resolutions airing such concerns and encouraging action in this respect are dated 2005 and 2010 and therefore at the time of the alleged events not only was there not any binding instrument, as remains the case to date, but in actual fact there was not enough awareness and consensus among the international community to condemn such actions. The prevailing document at the time (which was not ratified by Italy or Bulgaria) was the Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages (1962) which determined that it was for the States to decide on an age limit for contracting marriage and allowed a dispensation as to age to be given by a competent authority in exceptional circumstances. This trend is reflected in the legislation of many of the member States of the Council of Europe which consider eighteen years to be the age of consent for the purposes of marriage, and provide for exceptional circumstances whereby a court or other authority (often on consulting the guardians) may allow a marriage to be contracted by a person who is younger (for example, Azerbaijan, Bulgaria, Croatia, Italy, Hungary, Malta, San Marino, Serbia, Slovenia, Spain, Sweden), the most common being at least sixteen years of age. 165. The Court notes that in 2003, when the first applicant appears to have undertaken this union, she was a few months away from adulthood. Indeed under Italian legislation, it is perfectly legal for a person aged sixteen or more to have consensual sexual intercourse (see by implication article 609 quarter in paragraph 40 above), even without the consent of the parent, and he or she may also leave the family home with the consent of the parents. Moreover, in the instant case there is not sufficient evidence indicating that the union was forced on the first applicant who had not testified that she had not consented to it and who emphasized that Y. had not forced her to have sexual intercourse with him. In this light it cannot be said that the circumstances as established by the authorities raise any issue under Article 4 of the Convention. 166. Accordingly, this part of the complaint under this provision, against Italy, is inadmissible as being manifestly ill-founded and must be rejected under Article 35 §§ 3 and 4 of the Convention. (b) The complaint against Bulgaria 167. The Court notes that had any alleged trafficking commenced in Bulgaria it would not be outside the Court’s competence to examine whether Bulgaria complied with any obligation it may have had to take measures within the limits of its own jurisdiction and powers to protect the first applicant from trafficking and to investigate the possibility that she had been trafficked (see Rantsev, cited above § 207). In addition, 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). 168. However, whether the matters complained of give rise to the Bulgarian’s State responsibility in the circumstances of the present case is a question which falls to be determined by the Court according to its examination of the merits of the complaint. 169. The Court has already established, above, that in respect of both the version of the events, the circumstances of the case did not give rise to human trafficking, a situation which would have engaged the responsibility of the Bulgarian State, had any trafficking commenced there. Moreover, the applicants did not complain that the Bulgarian authorities did not investigate any potential trafficking, but solely that the Bulgarian authorities did not provide them with the required assistance in their dealings with the Italian authorities. As suggested above in paragraph 119 in fine, the Court considers that the Bulgarian authorities assisted the applicants and maintained constant contact and co-operation with the Italian authorities. 170. It follows that the complaint under Article 4 against Bulgaria is also manifestly ill-founded and must be rejected under Article 35 §§ 3 and 4 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION 171. The applicants further complained that the treatment they suffered was due to their Roma origin. They relied on Article 14 of the Convention, which 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.” 172. The applicants submitted that they had been discriminated against by the authorities in the handling of their case. They noted that the fact that the offenders they accused had also been Roma had no relevance, since Roma of Serbian origin were wealthy enough to get away scot free after having made arrangements with corrupt police agents. 173. The Italian Government considered that had the applicants been discriminated against, no investigation would have ensued. However, as explained above, a full investigation had been undertaken and the conclusions of the authorities had been justified on the basis of an objective and reasonable approach. 174. The Bulgarian Government submitted that their authorities had taken prompt, adequate and comprehensive measures to protect the interests of the applicants, as confirmed by the evidence provided by the CRD. They noted that the database of the Ministry of Foreign affairs did not store data in relation to ethnicity. Thus, there could be no allegation that the applicants had been subjected to discriminatory attitudes due to their ethnic origin. Moreover, they noted that the family accused by the applicants of such treatment was of the same ethnicity, which in itself dispelled any ideas of a difference in treatment. 175. The Court’s case-law on Article 14 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). Racial violence is a particular affront to human dignity and, in view of its perilous consequences, requires from the authorities special vigilance and a vigorous reaction. It is for this reason that the authorities must use all available means to combat racism and racist violence, thereby reinforcing democracy’s vision of a society in which diversity is not perceived as a threat but as a source of its enrichment. (see Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 145, ECHR 2005-VII). 176. The Court further recalls that when investigating violent incidents, State authorities have the additional duty to take all reasonable steps to unmask any racist motive and to establish whether or not ethnic hatred or prejudice may have played a role in the events. Treating racially induced violence and brutality on an equal footing with cases that have no racist overtones would be turning a blind eye to the specific nature of acts that are particularly destructive of fundamental rights. A failure to make a distinction in the way in which situations that are essentially different are handled may constitute unjustified treatment irreconcilable with Article 14 of the Convention. Admittedly, proving racial motivation will often be extremely difficult in practice. The respondent State’s obligation to investigate possible racist overtones to a violent act is an obligation to use its best endeavours and is not absolute; the authorities must do what is reasonable in the circumstances of the case (see Nachova and others, cited above, § 160). 177. Faced with the applicants’ complaint under Article 14, the Court’s task is to establish first of all whether or not racism was a causal factor in the circumstances leading to their complaint to the authorities and in relation to this, whether or not the respondent State complied with its obligation to investigate possible racist motives. Moreover, the Court should also examine whether in carrying out the investigation into the applicants’ allegation of ill-treatment by the police, the domestic authorities discriminated against the applicants and, if so, whether the discrimination was based on their ethnic origin. 178. As to the first limb of the complaint, the Court notes that even assuming the applicants’ version of events was truthful, the treatment they claim to have suffered at the hands of third parties cannot be said in any way to have racist overtones or that it was instigated by ethnic hatred or prejudice because the alleged perpetrators belonged to the same ethnic group as the applicants. Indeed, the applicants did not make this allegation to the police when they complained about the events related to the Serbian family. It follows that there was no positive obligation on the State to investigate such motives. 179. As to the second limb, namely whether the domestic authorities discriminated against the applicants on the basis of their ethnic origin, the Court notes that while it has already held above that the Italian authorities failed to adequately investigate the applicants’ allegations, from the documents submitted, it does not transpire that such failure to act was a consequence of discriminatory attitudes. Indeed, there appears to be no racist verbal abuse by the police during the investigation, nor were any tendentious remarks made by the prosecutor in relation to the applicants’ Roma origin throughout the investigation or by the courts in the subsequent trials. Moreover, the applicants did not accuse the authorities of displaying anti-Roma sentiment at the relevant time. 180. Accordingly, in so far as the complaint is directed against Italy, it is manifestly ill-founded, and is to be rejected according to Article 35 §§ 3 and 4 of the Convention. 181. The Court considers that no such complaint has been directed against Bulgaria, and even if it were, the complaint is manifestly ill-founded and is to be rejected according to Article 35 §§ 3 and 4 of the Convention. IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 182. Lastly, the applicants complained that the first and third applicants were not provided with lawyers and interpreters during their questioning, were not informed in what capacity they were being questioned, and were forced to sign documents the content of which they were unaware. They invoked Article 13 of the Convention. 183. The Court considers that the complaint in so far as Article 13 is invoked is misconceived and would more appropriately be analysed under Article 6. 184. However, the Court reiterates that a person may not claim to be a victim of a violation of his right to a fair trial under Article 6 of the Convention which, according to him or her, took place in the course of proceedings in which he or she was acquitted or which were discontinued (see Osmanov and Husseinov v. Bulgaria (dec.), nos. 54178/00 and 59901/00, 4 September 2003, and the case-law cited therein). 185. The Court notes that the proceedings against the first applicant were discontinued (see paragraph 29 above) and that the third applicant was acquitted by a judgment of 8 February 2006 (see paragraph 32 above). The Court therefore considers that in these circumstances the two applicants cannot claim to be victims of a violation of their right to a fair trial under Article 6. 186. It follows that this complaint must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 187. 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.” 188. Although a request for just satisfaction (EUR 200,000) was made when the applicants lodged their application, they did not submit a claim for just satisfaction when requested by the Court. Accordingly, the Court considers that there is no call to award them any sum on that account. | The Court declared the applicants’ complaints under Article 4 (prohibition of slavery and forced labour) inadmissible (manifestly ill-founded). It found that there had been no evidence supporting the complaint of human trafficking. However, it found that the Italian authorities had not effectively investigated the applicants’ complaints that their daughter, a minor at the time, had been repeatedly beaten and raped in the villa where she was kept. The Court therefore held that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention under its procedural limb. The Court lastly held that there had been no violation of Article 3 of the Convention in respect of the steps taken by the Italian authorities to release the first applicant. |
1,015 | Cases concerning the international military operations in Iraq during the Second Gulf War | COMPLAINTS THE LAW I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION A. Admissibility 1. The Government ’ s preliminary objection 2. Conclusion on admissibility B. Jurisdiction 1. Arguments before the Court 2. The Court ’ s assessment C. Alleged breach of the investigative duty under Article 2 1. Arguments before the Court 2. The Court ’ s assessment II. APPLICATION OF ARTICLE 41 OF THE CONVENTION A. Damage B. Costs and expenses C. Default interest CONCURRING OPINION OF JUDGE SPIELMANN, JOINED BY JUDGE RAIMONDI JOINT CONCURRING OPINION OF JUDGES CASADEVALL, BERRO-LEFEVRE, ŠIKUTA, HIRVELÄ, LÓPEZ GUERRA, SAJÓ AND SILVIS CONCURRING OPINION OF JUDGE MOTOC ABBREVIATIONS AND ACRONYMS AOR Area of operational responsibility CD-ROM Compact disc, read-only memory CENTCOM American Central Command CFLCC Coalition Forces Land Component Commander CPA Coalition Provisional Authority DARIO Draft Articles on the Responsibility of International Organisations (International Law Commission) DR European Commission of Human Rights, Decisions and Reports ECHR European Court of Human Rights, Reports of Judgments and Decisions (1999-present) EUR Euro (currency) GC Grand Chamber GST Government support teams I.C.J. International Court of Justice ICDC Iraqi Civil Defence Corps LJN Landelijk Jurisprudentienummer (National Jurisprudence Number, Netherlands) LOC Lines of communication loc. cit. loco citato (in the place cited) MND (C-S) Multinational Division, Central-South MND (SE) Multinational Division, South-East MoU, MOU Memorandum of Understanding NATO North Atlantic Treaty Organization PJCC Provisional Joint Coordination Center (emergency and local governmental services in Iraq) POD Port of disembarkation Reports European Court of Human Rights, Reports of Judgments and Decisions (1996-1998) RoE, ROE Rules of Engagement SFIR Stabilization Force in Iraq UK United Kingdom of Great Britain and Northern Ireland UNPROFOR United Nations Protection Force (Bosnia and Herzegovina 1992-1995) UNSC United Nations Security Council UNSCR United Nations Security Council Resolution US, USA United States of America VCP Vehicle checkpoint In the case of Jaloud v. the Netherlands, The European Court of Human Rights, sitting as a Grand Chamber composed of: Dean Spielmann, President, Josep Casadevall, Guido Raimondi, Ineta Ziemele, Mark Villiger, Isabelle Berro-Lefèvre, Elisabeth Steiner, Alvina Gyulumyan, Ján Šikuta, Päivi Hirvelä, Luis López Guerra, András Sajó, Zdravka Kalaydjieva, Aleš Pejchal, Johannes Silvis, Valeriu Griţco, Iulia Antoanella Motoc, judges, and Michael O ’ Boyle, Deputy Registrar, Having deliberated in private on 19 February 2014 and on 10 September 2014, Delivers the following judgment, which was adopted on the last ‑ mentioned date: PROCEDURE 1. The case originated in an application (no. 47708/08) against the Kingdom of the Netherlands lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ( “ the Convention ” ) by an Iraqi national, Mr Sabah Jaloud ( “ the applicant ” ), on 6 October 2008. 2. The applicant was represented by Ms L. Zegveld and Mr A.W. Eikelboom, lawyers practising in Amsterdam. The Netherlands Government ( “ the Government ” ) were represented by their Agent, Mr R.A.A. Böcker of the Ministry of Foreign Affairs. 3. The applicant alleged, in particular, that Article 2 of the Convention had been violated in that the investigation into the death of his son, Mr Azhar Sabah Jaloud, had been inadequate. 4. On 6 December 2011 the application was communicated to the Government. 5. On 9 July 2013 a Chamber of the Third Section, composed of Josep Casadevall, President, Alvina Gyulumyan, Corneliu Bîrsan, Ján Šikuta, Luis López Guerra, Kristina Pardalos, Johannes Silvis, judges, and also of Santiago Quesada, Section Registrar, relinquished jurisdiction in favour of the Grand Chamber, neither of the parties having objected to relinquishment (Article 30 of the Convention and Rule 72 of the Rules of Court ). 6. The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24. Subsequently Elisabeth Steiner, substitute judge, replaced Judge Pardalos, who was unable to take part in the further consideration of the case. 7. The applicant and the Government each filed written observations. In addition, third-party comments were received from the Government of the United Kingdom, which had been given leave by the President to take part in the proceedings (Article 36 § 2 of the Convention and Rule 44 § 2). The intervening Government were represented by their Agent, Ms R. Tomlinson of the Foreign and Commonwealth Office. 8. A hearing took place in public in the Human Rights Building, Strasbourg, on 19 February 2014 (Rule 59 § 3). There appeared before the Court: (a) for the respondent GovernmentMr R. Böcker, Ministry of Foreign Affairs, Agent, Dr M. Kuijer, Ministry of Security and Justice, Adviser, Mr B. van Hoek, Public Prosecution Service, Adviser, Commander H. Warnar, Ministry of Defence, Military staff Adviser; (b) for the applicantMs L. Zegveld, Counsel, Mr A. W. Eikelboom, Counsel; (c) for the Third Party-State : the United Kingdom Government Ms R. Tomlinson, Foreign & Commonwealth Office, Agent, Mr J. Eadie QC, Counsel, Mr J. Benson, Foreign & Commonwealth Office, Adviser, Ms M. Addis, Foreign & Commonwealth Office, Observer. The Court heard addresses by Mr Böcker, Mr Eikelboom, Ms Zegveld and Mr Eadie, and also their replies to its questions. THE FACTS 9. The applicant, Mr Sabah Jaloud, is an Iraqi national who was born in 1943 and lives in An-Nasiryah, Iraq. He is the father of the late Mr Azhar Sabah Jaloud, who died on 21 April 2004 at the age of twenty-nine. A. The circumstances of the case 1. The death of Mr Azhar Sabah Jaloud 10. On 21 April 2004, at around 2.12 a.m., an unknown car approached a vehicle checkpoint (VCP) named “ B-13 ” on the main supply route “ Jackson ” north of the town of Ar Rumaytah, in the province of Al ‑ Muthanna, south-eastern Iraq. The car slowed down and turned. From inside the car shots were fired at the personnel guarding the VCP, all of them members of the Iraqi Civil Defence Corps (ICDC). The guards returned fire. No one was hit; the car drove off and disappeared into the night. 11. Called by the checkpoint commander, ICDC Sergeant Hussam Saad, a patrol of six Netherlands soldiers led by Lieutenant A. arrived on the scene at around 2.30 a.m. 12. Some fifteen minutes later a Mercedes car approached the VCP at speed. It hit one of several barrels which had been set out in the middle of the road to form the checkpoint, but continued to advance. Shots were fired at the car: Lieutenant A. fired 28 rounds from a Diemaco assault rifle; shots may also have been fired by one or more ICDC personnel armed with Kalashnikov AK-47 rifles ( see paragraphs 21 and 49-52 below). At this point the driver stopped the car. 13. The applicant ’ s son, Mr Azhar Sabah Jaloud, was in the front passenger seat of the car. He had been hit in several places, including the chest. Netherlands soldiers removed him from the car and attempted to administer first aid. Despite this, Mr Azhar Sabah Jaloud died. He was declared dead one hour after the incident. 14. The body was subjected to X-ray examination. The radiographs show objects identified as metallic inside the chest and elsewhere. 15. An autopsy was performed by an Iraqi physician, who drew up a brief report in Arabic. Metal objects identifiable as bullet fragments were found in the body. 16. It was not determined by whom the bullet or bullets had been fired, nor from what weapon. 2. The investigation a. Beginning of the investigation 17. An official record by Sergeant First Class ( wachtmeester 1e klasse ) Schellingerhout of the Royal Military Constabulary ( Koninklijke marechaussee ), As-Samawah detachment, shows that a telephone call was received at 3.25 a.m. from the batallion operations room, reporting the shooting incident. A car had crashed into the VCP. Shots had been fired by Netherlands and Iraqi armed forces and the car ’ s passenger had been wounded. He had been taken to hospital. The Royal Military Constabulary was asked to investigate. 18. A seven-person Royal Military Constabulary duty group ( piketgroep ), accompanied by an interpreter, had left at 3.50 a.m. and arrived on the scene at around 4.50. a.m. Royal Military Constabulary Sergeants First Class Broekman and Van Laar had begun securing evidence at 5 a.m. Also at 5 a.m., the Royal Military Constabulary staff in The Hague and the public prosecutor of the Regional Court ( rechtbank ) of Arnhem were informed of the incident. b. Seizure of the body, the car and the personal weapons of Lieutenant A. and ICDC Sergeant Hussam Saad 19. The body was seized by Royal Military Constabulary Warrant Officer ( adjudant-onderofficier ) Kortman at 7.30 a.m. and transported to the mobile hospital at Camp Smitty. At 11.45 a.m., after permission had been given in writing by a local court, the body was transported to the General Hospital in As-Samawah. The post - mortem examination was carried out in the absence of any police witness by an Iraqi physician. 20. The Mercedes car was seized at around 5.10 a.m. by Warrant Officer Kortman and later towed to Camp Smitty. 21. At around 7.50 a.m. Sergeant First Class Schellingerhout seized Sergeant Hussam Saad ’ s Kalashnikov AK-47 rifle; at around 11.55 a.m. he also seized Lieutenant A. ’ s Diemaco C7A1 rifle. Both weapons were later labelled and placed at the disposal of the Arnhem public prosecutor. c. Statements taken down by Royal Military Constabulary officers 22. The following statements were submitted to the investigating and judicial authorities in the domestic proceedings. i. Mr Dawoud Joad Kathim 23. On 21 April 2004, at around 5.05 a.m., Royal Military Constabulary Warrant Officer Mercx took a statement from the driver of the Mercedes car, Mr Dawoud Joad Kathim, with the aid of an interpreter. Mr Dawoud Joad Kathim admitted to having drunk two cans of beer, but no more, on the previous night, and did not consider himself to have been intoxicated. He stated that he had not noticed any checkpoint until it was too late to avoid hitting two barrels. It had been dark at the time, and there had been no lighting. To his complete surprise, his car had been fired at as he was driving through the checkpoint. His friend Mr Azhar Sabah Jaloud had been hit; Mr Dawoud Joad Kathim had heard him say that he was dying. He wished to submit a complaint because the checkpoint had not been clearly marked. ii. ICDC Sergeant Hussam Saad 24. On 21 April 2004, at around 5.15 a.m., Royal Military Constabulary Sergeant First Class Weerdenburg took a statement from ICDC Sergeant Hussam Saad The latter stated that he had reported shooting from a car at around 2.10 a.m.; Lieutenant A. had arrived at approximately 2.30 a.m. Sergeant Hussam Saad had gone to look for spent cartridges with Lieutenant A., another Netherlands soldier and the interpreter. He had suddenly heard a bang and seen a car approaching from the direction of Ar Ruyaythah. The car had continued to move forward, despite being ordered to stop. He had then heard shooting from the left side of the road. He had not, however, fired any rounds himself. iii. Other ICDC personnel 25. Sergeant First Class Weerdenburg next questioned the other Iraqi soldiers, but they provided no pertinent information. iv. Mr Walied Abd Al Hussain Madjied 26. On 21 April 2004, at around 7 a.m., Royal Military Constabulary Sergeant Klinkenberg took a statement from Mr Walied Abd Al Hussain Madjied, an interpreter working with the ICDC. The interpreter had been accompanying Lieutenant A. ’ s patrol between two checkpoints. After arriving at VCP B1.3 and being told about the first shooting incident by ICDC Sergeant Hussam Saad, he had joined Lieutenant A. and others in the search for spent cartridges. He had suddenly heard the sound of barrels falling over, turned around and seen a car approaching. He had shouted “ stop, stop, stop ” but the car had driven on. Across the road from where he was standing, a Netherlands soldier had fired at the car. After the car stopped, he had assisted its occupants by providing interpretation. The passenger ’ s left arm had been covered in blood and the driver had smelled of alcohol. v. Sergeant Teunissen 27. On 21 April 2004, at around 9.30 a.m., Royal Military Constabulary Sergeant First Class Van Laar and Sergeant Klinkenberg took a statement from Infantry Sergeant ( sergeant ) Teunissen. Arriving at VCP B1.3 at 2 a.m., he had been given information by the ICDC sergeant. Together with his lieutenant, the ICDC sergeant and the interpreter, he had gone up the road to look for spent cartridges. At a distance of approximately 100 metres from the VCP hut, he had turned around, startled by a sound. He had seen a car drive into the VCP at speed; when the car had passed the VCP, he had heard shooting from the VCP. The four of them had dived for cover. When the car had reached their level, shots had been fired from across the road, where the lieutenant was positioned. He had shouted “ Stop firing ”, but that had not been heard. When the firing stopped, the car had also stopped. The passenger had been bleeding from the lower body and the left shoulder. Sergeant Teunissen and Private Finkelnberg had removed him from the car, laid him on the ground and bandaged his wounds. He and Lieutenant A. had attempted to resuscitate the passenger until told by the doctor that there was no longer any point. vi. Lieutenant A., first statement 28. On 21 April 2004, at around 11.15 a.m., Royal Military Constabulary Sergeants First Class Broekman and Van Laar heard Lieutenant A. under caution. Lieutenant A. stated that he was responsible for monitoring two vehicle checkpoints, one of which was VCP B1.3 on the Jackson road north of Ar-Rumaythah. After the first shooting incident had been reported, he had arrived at VCP B1.3 at around 2.30 a.m.; he had been intending to reconnoitre the area on foot, together with Sergeant Teunissen and the ICDC sergeant. At around 2.45 a.m. he had been startled by a noise. Looking behind him, he had seen two blazing car headlights approaching. Shots had then been fired from the direction of the car; on hearing them, he had dived for cover on the verge of the road. He had been convinced that shots were being fired from inside the car. When the car had reached his level, he had cocked his weapon; when it had just passed, he had started to shoot at its rear. He had fired 28 cartridges in aimed fire. He had been responding to the danger arising from his having been fired at first. He had fired the entire contents of a magazine, 28 rounds; this had taken approximately seven seconds. The passenger being wounded, he and Sergeant Teunissen had attempted to resuscitate him until help arrived. By that time there had been no pulse. Shortly afterwards, the company commander had arrived; Lieutenant A. had briefed him. vii. Private Finkelnberg 29. On 23 April 2004, at around 1.50 p.m., Royal Military Constabulary Warrant Officer Kortman and Sergeant First Class Broekman took a statement from Private Finkelnberg. At 2 a.m. on 21 April 2004 he had arrived with Lieutenant A. and Sergeant Teunissen, among others, at VCP B1.4, where the ICDC sergeant reported to Lieutenant A. that there had been a shooting incident at VCP B1.3. The patrol had therefore gone to that checkpoint, arriving at 2.30 a.m. Lieutenant A., Sergeant Teunissen, the ICDC sergeant and the interpreter had gone up the road towards Hamza to look for spent cartridges. A dark-coloured motorcar had approached at high speed and driven past him through the checkpoint, hitting some barrels in the road. Through his image intensifier he had seen Lieutenant A., to the left of the road, going for cover; he had then seen muzzle flashes from several weapons on the left side of the road and heard shots from that direction. The firing was in single shots. At a certain moment he had seen the car stop. While the shots were being fired, he had heard Sergeant Teunissen shout “ Stop firing ”. He had gone up to the vehicle and cut the passenger ’ s clothes loose. While Sergeant Teunissen administered first aid, he had searched the car for weapons. He had found an icebox containing an almost empty bottle of alcoholic drink. He had then joined Sergeant Teunissen and Lieutenant A. in their attempts to resuscitate the passenger until the latter was declared dead. He was critical of Lieutenant A. for firing while his own troops were on the opposite side of the road and for firing so many rounds, and also of the ICDC for firing in the general direction of their own personnel. viii. Cavalry Sergeant Quist 30. On 23 April 2004, at around 1.50 p.m., Royal Military Constabulary Sergeant Major ( opperwachtmeester ) Wolfs and Sergeant First Class Van Laar took a statement from Cavalry Sergeant ( wachtmeester ) Quist. On 21 April 2004 at around 2 a.m. he had been at VCP B1.4 with Lieutenant A. and the other members of his patrol unit, which had been led by Sergeant Teunissen. There had been shooting at VCP B1.3 and they had gone there. Upon arrival, he had noticed no ICDC personnel manning the checkpoint, but had seen a group of people to the left of the road opposite the hut. After Cavalry Sergeant Quist had parked his vehicle, Lieutenant A., Sergeant Teunissen, the interpreter Walied and the ICDC sergeant had walked off north to look for spent cartridges. At a certain point, he had seen a car approaching at high speed from Ar-Rumaythah; when the car reached the checkpoint, it had hit some of the barrels or rocks placed there. He had heard automatic gunfire from where the ICDC members were, which had then stopped. There had been further firing approximately 100 metres distant from him, but he could not tell who was firing up ahead. He did think that there had been firing from a plurality of weapons. He had seen the vehicle stop 50 metres away. He had made a situation report. He had seen Lieutenant A. and Sergeant Teunissen trying to resuscitate the victim. ix. Lieutenant A., second statement 31. On 23 April 2004, at around 3.35 p.m., Royal Military Constabulary Sergeant First Class Broekman and Warrant Officer Kortman took a second statement from Lieutenant A. The latter stated that the very last time he had seen the ICDC sergeant the latter had been at the checkpoint, fiddling ( klungelen ) with his AK-47 rifle. Lieutenant A. had told the sergeant not to point the rifle at him. On the subject of the firing incident, he stated that as far as he remembered he had probably lain on a flat part of the road; he had not fired from a standing position. He had performed mouth-to-mouth resuscitation on the wounded passenger of the car and remembered him tasting of alcohol. The ICDC deputy company commander had given him a list of names of the ICDC personnel who had fired their weapons and the corresponding numbers of cartridges, and had asked for replacement ammunition. d. Other investigation reports i. Examination of the Mercedes car 32. On 22 April 2004 Royal Military Constabulary Warrant Officer Voorthuijzen and Sergeant Heijden examined the car seized by Warrant Officer Kortman the day before. It was a black Mercedes Benz 320 E AMG. It had black number plates with markings in Arabic script; these visibly covered white number plates bearing black letters in Latin script and numerals. The car had damage consistent with hitting foreign objects at speed. The rear window was shattered. Holes were found in the rear of the car, in the body on the right and left sides, and in the seats. Metal tips were found in various places; one, identified as a bullet fragment, had clearly passed through the passenger seat. The conclusion was that the car had been fired on from both the left and the right; from the left, with a weapon firing ammunition smaller than 6 mm calibre and, from the right, with a weapon firing ammunition larger than 6 mm calibre. The precise firing angles relative to the car could not, however, be determined. ii. X-rays and photographs 33. On 9 May 2004 Royal Military Constabulary Warrant Officer Voorthuijzen and Sergeant Klinkenberg took receipt of a CD-ROM containing X-rays of Azhar Sabah Jaloud ’ s body. These showed fragments of metal in the left chest cavity, the left hip and the left lower arm. The X ‑ rays had been made by Warrant Officer Dalinga, X-ray technician at Camp Smitty, As-Samawah, Al-Muthanna province. 34. The file contains photocopies of the above-mentioned X-rays and of photographs. They are accompanied by descriptions, contained in an official report by Warrant Officer Kortman. The photographs include pictures of a road and a checkpoint area, some taken by daylight, some apparently taken at night. Several of the photographs show cartridges lying on the ground, including some described as 7x39mm (as fired by the Kalashnikov AK-47 rifle) [1], both spent and live, and a quantity of spent cartridges stated to be 5.56x45mm (as fired by the Diemaco C7A1 rifle) in a pile close together. Others show a male body with wounds to an arm, the upper left quarter of the back and the right buttock. Further pictures show a dark-coloured Mercedes motorcar; details are included of holes in the bodywork and upholstery that could be bullet holes. iii. Report by ICDC Lieutenant Colonel Awadu Kareem Hadi 35. On 22 April 2004 ICDC Lieutenant Colonel Awadu Kareem Hadi, the commanding officer of 603 ICDC Battalion, sent a report from his batallion headquarters to the headquarters of the Iraqi police. It reads as follows ( rough handwritten translation, from Arabic into English, submitted by the applicant): “ The details of the accident which is happened at date (20/04/2004) and information coming from the first batallion (Ar-Rumaytha) and the details are: At the hour (21.05 [ sic ] after the midnight) from the date (20/04/2004) [ sic ] a car type (Mercedes) coming by high speed directed from (Al Hamza) to (Al Nassiriya) and when the car is reached to the location of the checkpoint does not stop and making a crash with the obstacles present in checkpoint and he was carelessness and the soldiers shouting on him and calling to stop and he is continued and does not stop and after that Dutch soldiers see that there is no way and shoot on him and then injured person ([Azhar Sabah Jaloud]) then he is died and he was sitting near the driver. With our greetings [signed] Lieutenant Colonel Awadu Kareem Hadi A copy to / PJCC ” iv. The metal fragments 36. An official report by Royal Military Constabulary Warrant Officer Voorthuizen, dated 21 June 2004, states that on 2 June 2004 a document was received in Arabic, which, translated orally by an interpreter, was identified as a report by the Baghdad police. The report stated that three metal fragments had been examined in Baghdad at the request of the Al ‑ Muthanna police with a view to identifying the ammunition from which they had come and the weapon from which they had been fired; however, the provenance of the metal fragments could not be determined, as they were too few in number. A copy of a document in Arabic was attached to Warrant Officer Voorthuijzen ’ s report. It is not stated in whose custody the metal fragments had been left or where they were being stored. e. Iraqi document 37. On 21 April 2004 Mr Dawoud Joad Kathim, the driver of the Mercedes car, lodged a complaint with the Iraqi police against the troops who had fired at his car. It appears from the statement, as taken down in writing, that Mr Dawoud Joad Kathim was under the misapprehension that the foreign troops involved had been Polish rather than Netherlands. Mr Dawoud Joad Kathim also put on record that he had been told by the interpreter to say that all of the shots had been fired by the ICDC, whereas in fact he had not seen any shots fired by ICDC personnel. f. Supplementary report, recording statements taken from the ICDC members 38. After the Chamber ’ s relinquishment of jurisdiction to the Grand Chamber, the Government provided an official record of the following statements taken from the ICDC members. The following is a sworn translation subsequently submitted by the applicant : “ Name: A Saad Mossah Weapon number: GL 5574 Ammunition: 4 X 30 cartridges ‘ During the second incident I was lying in a position with all-round security. I saw that a car was travelling at high speed towards the checkpoint from the direction of Ar Rumaytha. I saw that it rammed into two drums by the checkpoint and simply continued going. My commander [ICDC Sergeant Hussam Saad ] walked forwards together with the interpreter and two Dutch soldiers and then I heard a large number of shots fired. I myself did not fire any shots. I cannot tell you any more than this. ’ Name Haider Shareef Weapon number UE 0481 1984 Ammunition 4 Cartridge clips and 120 cartridges in total ‘ 1 cannot tell you anything about the first incident because I was asleep at the time in the watch hut. During the second incident I was standing by the vehicle checkpoint and I saw a Mercedes Benz driving towards the checkpoint. I saw that the Mercedes Benz rammed into two oil drums and drove on in the direction of Hamsa. I heard the Dutch soldiers shouting stop, stop, and then I heard shots being fired. I saw nothing else because I was standing behind a hut on the opposite side to the watch hut. ’ INTERPRETER Name Walied Abd Al Hussain Madjied Date of birth 25-10-1969 Kuwait / Hawalli ‘ We started at 0:00 hours and we drove on patrol. Up till 01:30 hours we were present here and then we drove on to the following checkpoint. When we arrived there the checkpoint commander said that shots had been fired at the previous checkpoint. I heard lieutenant V. [presumably Lieutenant A.] say that I should get into the car and we drove back to the checkpoint. When we arrived we asked for details. The checkpoint commander and sergeant Hossam of ICDC said that after we had left a truck had stopped there and its driver said that a vehicle, which was an Opel, was driving behind them. Then an Opel approached, which made a U-turn 100 metres before the checkpoint and switched off its lights. And then there were several shots fired at the checkpoint from this vehicle. Sergeant Hussam Saad then fired two of his magazines, each containing 30 cartridges, at the above-mentioned vehicle until they were empty. Sergeant Hossam ’ s men also fired shots. After I heard this report I went together with lieutenant V. to look for cartridge cases. We walked past the checkpoint and then I heard the sound of falling drums. I turned around and saw that a vehicle had driven into the drums and was driving towards us. I believe that the vehicle was not driving fast. I did see that the vehicle was swerving. I shouted in Arabic in a loud voice stop, stop, stop, but the vehicle continued going. The man appeared to be drunk and he closed his windows. After the vehicle had passed I heard shots being fired. A Dutch sergeant then told me to look for cover. This Dutch sergeant then shouted in a loud voice to stop firing. I also shouted this in the direction of the people from I.C.D.C. A Dutch soldier on the other side of the road continued firing. He did not stop firing, not even when the Dutch sergeant had called out to stop firing. When the vehicle stopped, on the instructions of the Dutch sergeant I tried to talk to the people in the vehicle. I told the driver to get out and to lie on the ground. He did this. When I started to talk to front-seat passenger, I heard the driver say that the front-seat passenger was injured. We then went straight to the vehicle and opened the front-seat passenger ’ s door. I saw that the front-seat passenger ’ s left arm was bloody. I then walked over to the driver of the vehicle and he said that they had been drinking and had not seen that there was a checkpoint. I could smell that the driver stank of alcohol. While the vehicle was stopped, shots were still being fired, but I do not know where these came from. When we went to pick up cartridge cases from the first incident everyone walked away from the checkpoint and there was no-one on the road and it was dark there. There were no lights showing up the checkpoint, which meant that it was not clear that there was a checkpoint there. I think it is strange that shots were fired at the vehicle because there was no firing at that moment. I think that they should have fired a warning shot, then the vehicle would have stopped. I can also tell you that, during the search for cartridge cases from the first shooting incident, I was walking on the same side together with the Dutch sergeant and the sergeant from I.C.D.C. The Dutch lieutenant was walking on the other side. I do not know how many other people were then walking behind me. I can also tell you that I do not know whether shots were fired at the checkpoint from the vehicle during the second shooting incident. ’ On 21 April 2004, at around 05:15 hours was interviewed: Name; Hussam Saad, the person in question is SGT [sergeant] and local CDT [ commandant, commander] of ICDC. Weapon number : 84MD5596 and is AK 47 and at the time of the interview not loaded. He also had in his possession 2x full magazines (2x30 cartridges). 1 magazine was empty. ‘ At the start of my duty I had 120 cartridges in my possession. At around 02:10 hours I fired 60 cartridges. At that moment a car came from the direction of Al Hamza and stopped before the Traffic Control Point. The lights of this vehicle were then turned off and then the car turned back in the direction of Al Hamza. I hear shots and see muzzles pointing out of the car. I fire back with my AK 47. My position at the start of this shooting incident was in front of the watch hut. After the shooting we ran in the direction of the vehicle, together with three colleagues. These colleagues are called: - Alla ’ a Adnan - Mohammad Khazem - Hameed Jaber. These three colleagues also fired shots. At around 02:15 hours this car suddenly drove away. After this we immediately called up the base. Lieutenant A. arrives by us about 20 to 25 minutes later. The CDT, interpreter, lieutenant A. and someone else go to look for cartridge cases. During the search a car approached the Traffic Control Point on the Main Supply Route Jackson from the direction Ruymaythah and heading in the direction of Al Hamza. The CDT was on the right-hand side of the road looking for cartridge cases, (looking in the direction of Al Hamza). Lieutenant A. was on the left-hand side of the road looking for cartridge cases, (looking in the direction of Al Hamza). Suddenly I heard the sound as if a car had driven into the drums at the Traffic Control Point. I saw that the car continued driving in the direction of Al Hamza. We tried to stop the car by shouting. Then we heard shots. I heard shots from the left-hand side of the road (looking in the direction of Al Hamza). As far as I am aware, no shots were fired from the Mercedes. A soldier from the Dutch army was standing on the right-hand side of the road. I did not fire a single shot myself in the direction of the Mercedes. ’ On 21 April 2004 at around 05:30 hours was interviewed; Name: Hameed Jaber Weapon number: 84MD0596 Ammunition: 1 cartridge clip containing 15 cartridges. 2 cartridge clips, each cartridge clip containing 30 cartridges. 1 cartridge clip containing 25 cartridges. ‘ At the time of the second incident I was lying behind the watch hut. I saw and I heard a car approaching from the direction of Ar Rumaytah. This vehicle drove at high speed through the checkpoint and rammed into two drums. Then I heard shooting. I do not know anything else. During the 1st incident I fired 15 cartridges. ’ On 21 April 2004 at around 06:15 hours was interviewed: Name: Haider Mohsen Weapon number: GB 4140 Ammunition: 4 magazines, each magazine containing 30 cartridges. ‘ I was asleep during the 1st incident. I could not go outside on account of the shots being fired at the watch hut. When I came outside I saw a car driving away in the direction of Al Hamza. During the 2nd incident I saw a Mercedes approaching. I was standing at the VCP. We had 360 degrees all-round security then. I heard the Mercedes driving into the oil drums and saw that it then drove away at high speed in the direction of Al Hamza. I heard a Dutch person shouting “ stop ”. However, the car did not stop. I heard shots. I heard the car stop. I heard voices coming from the car radio. This was playing very loudly. I did not see anything else. ’ On 21 April 2004 at around 06:00 hours was interviewed: Name Ali Hussein Weapon number S41297 Ammunition: 3 magazines, each magazine containing 30 cartridges. 1 magazine containing 26 cartridges. ‘ During the second incident I was lying within an all-round security. I saw a car driving at high speed through the VCP in the direction of Al Hamza. I heard a Dutch soldier shouting ‘ stop, stop ’. I did not want to shoot since our own people were walking in front of the VCP. Then I heard shots being fired. I fired 4 times during the first incident. I was standing outside the watch hut then. ’ On 21 April 2004 at around 05 45 hours was interviewed. Name: Ahmed Ghaleb Weapon number S54469 Ammunition: 4x30 cartridges. ‘ During the first incident I was asleep in the watch hut. I did not fire any shots then. During the second incident I was lying within an all-round security just next to the watch hut. I heard a car ramming into two drums. The car continued driving fast, (it was clearly accelerating). Then I heard shots in front of the VCP. I know nothing else. ’ Name Alâa A Dnan Weapon number 84 MD 0890 Ammunition 3 magazines with 30 cartridges and 1 magazine with 22 cartridges ‘ I fired shots during the first incident. These were shots. [ sic ] During the second incident I was situated in an all-round and was lying on the left-hand side of the road. I was looking in the direction of Hamza. I was [ sic ] that a car was driving from the direction of Ar Rumayta. It drove through the traffic control point and thereby rammed a couple of drums. I could not see what happened then, but I did hear shots being fired. ’ Name Ilia MOHAMMED KHAZEM, corporal 2nd rank Weapon number 84 MD 6151 Ammunition 4 magazines with 120 cartridges in total ‘ I did not fire a single shot last night because 1 did not receive any orders to do so. I was standing by the traffic control point facing the direction of Hamza. At a certain point I heard a car driving into an oil drum. The car continued driving in the direction of Hamza. I heard the Dutch people shouting stop at the driver of the car that had broken through. Then I heard shots. When I saw that the Mercedes had stopped I also ran in that direction. I could not see who was standing on the left and right-hand sides of the road because it was dark. Murtada Khazaat Yasser Abd Alaal Ahmed Shaker Ali Hussein The above-mentioned people came at 04:10 AM hours. ’ Name SAHIB JASSIM Weapon number 84 MV 7435 Ammunition 4 magazines with 120 cartridges in total ‘ During the first incident I was standing by the Traffic Control Point. I saw a truck driving from the direction of Hamza towards the traffic control point. The driver said that he was being followed by a car and he pointed to this car. The driver of the truck said that the car was an Opel. At a certain point there were many shots fired from the car. My colleagues reacted to this and all fired back at the car. We then moved into a 360 degree formation after which the car continued further. During the second incident I was lying on the ground in an all-round by the traffic control point. I saw a car coming from the direction of Ar Rumayta. The car was travelling at high speed and thereby rammed into an oil drum. The car then drove straight through the traffic point and I heard that shots were fired. I cannot tell you anything else that would further explain the situation. ” 3. Domestic proceedings 39. On 8 January 2007 the applicant ’ s counsel, Ms Zegveld, wrote via the registry of the Military Chamber to the public prosecution service attached to the Regional Court of Arnhem on behalf of the next-of- kin of Mr Azhar Sabah Jaloud. She asked to be informed of the outcome of the investigation into the latter ’ s death and any decisions made as to the prosecution of any suspects, with a view to bringing proceedings under Article 12 of the Code of Criminal Procedure ( Wetboek van Strafvordering ) (see below). 40. The public prosecutor replied on 11 January 2007, stating that the investigation had been closed in June 2004; that Mr Azhar Sabah Jaloud had presumably ( vermoedelijk ) been hit by an Iraqi bullet; that the Netherlands serviceman who had also fired at the vehicle was entitled to claim self-defence; and that for that reason no Netherlands service personnel had been designated as suspects. 41. On 1 February 2007 Ms Zegveld wrote to the public prosecutor asking, among other things, for the Rules of Engagement and any reports of investigations by the Iraqi authorities to be added to the file. 42. The public prosecutor replied on 14 February, declining to accede to Ms Zegveld ’ s requests. Referring to the Court ’ s Chamber judgment in the case of Ramsahai and Others v. the Netherlands, no. 52391/99, 10 November 2005, he stated that since the procedure under Article 12 of the Code of Criminal Procedure did not involve the determination of a “ criminal charge ”, Article 6 of the Convention did not apply and so arrangements for access to the case file in such cases were different from those applicable in ordinary criminal proceedings. 43. On 2 October 2007 the applicant, represented by his counsel Ms Zegveld and Mr Pestman, lodged a request under Article 12 of the Code of Criminal Procedure with the Arnhem Court of Appeal for the prosecution of Lieutenant A. He argued that there was nothing to support the suggestion that Mr Azhar Sabah Jaloud had been killed by an Iraqi bullet; that the number of shots fired by Lieutenant A. reflected disproportionate violence; that Lieutenant A. had failed to fire a warning shot and had failed to heed Sergeant Teunissen ’ s order to cease firing; that, in accordance with Article 50 of the First Additional Protocol to the Geneva Conventions, Mr Azhar Sabah Jaloud ought to have been considered a civilian in the absence of any indications to the contrary and ought therefore not to have been subjected to aimed rifle fire; and that the use of lethal force by Lieutenant A. had been unnecessary in any event. He also relied on the statement made to the Iraqi police by the driver of the car, to the effect that the latter had been told to keep quiet about the involvement of Netherlands military personnel. 44. On 28 January 2008 the Chief Public Prosecutor ( hoofdofficier van justitie ) to the Regional Court of Arnhem wrote to the Chief Advocate General ( hoofdadvocaat-generaal ) to the Court of Appeal of Arnhem, recommending that the applicant ’ s request be dismissed. He appended a detailed statement by the public prosecutor who had taken the decision (in July 2004) not to prosecute Lieutenant A. According to the public prosecutor, while it had to be accepted that Lieutenant A. had fired at the car, it could not be proved that Lieutenant A. had caused the death of Mr Azhar Sabah Jaloud; moreover, even if such were the case, Lieutenant A. could reasonably have believed that he was under attack and needed to defend himself. The public prosecutor ’ s statement also contained the following passage: “ On the basis of United Nations Security Council Resolution 1483 the special responsibilities of the United States and the United Kingdom as occupying powers were recognised. Unlike the British forces, however, the Netherlands were not to be considered an occupying power in Iraq: SFIR counts as a peacekeeping operation ( vredesoperatie ) for the Netherlands. The Government ’ s point of view was that the role of the Netherlands armed forces should remain limited to supporting the British in their appointed territory in southern Iraq (Lower House of Parliament, 2002-23, no. 23432, no. 16). The legitimisation for the use of functional force by SFIR is not to be found in ius in bello, but in the Security Council mandate, the Rules of Engagement (ROE) based thereon, and the Netherlands instruction card for the use of force which is derived from those. The ROE empower the use of force against any person who falls within the scope of the relevant rule. Accordingly, in certain cases such persons may be civilians. This also applies – as the instruction for the use of force reflects – to the inherent right of self-defence. The instructions and the objective of the commanding officer, seen in connection with the perceived threat, are decisive as to whether a soldier will make use of his powers to use force, and if so, how. ” 45. The public prosecutor further argued that no violation of Article 2 of the Convention under its procedural head could be found, since the Convention did not bind Netherlands troops in Iraq: the Netherlands troops had not exercised effective authority in Iraq. 46. On 1 February 2008 the Advocate General to the Court of Appeal of Arnhem submitted a written opinion expressing the provisional opinion that the decision not to prosecute had been sound. A Netherlands serviceman remained subject to Netherlands criminal jurisdiction wherever he might be in the world. However, UNSC Resolution 1483 indicated that co-operating States did not have the status of occupying powers, and the armed conflict had ended by the time of Mr Azhar Sabah Jaloud ’ s death. Moreover, even assuming the existence of an armed conflict in Iraq at the time, given the circumstances in which the incident had taken place, which were unrelated to the conflict as such, it would not be feasible to prosecute Lieutenant A. under war crimes legislation. Under ordinary criminal law, Lieutenant A. would be entitled to claim self-defence. However, even without a conviction the Netherlands State might be in a position in which monetary compensation ex gratia was appropriate. 47. The Court of Appeal held a hearing on 18 March 2008. The applicant ’ s representative, Ms Zegveld, asked for certain investigative measures, including the addition to the file of copies and, where necessary, translations of the Rules of Engagement and the pertinent instructions based thereon; the Iraqi autopsy report; the statement by Mr Dawoud Joad Kathim to the Iraqi police; and the questioning of the Iraqi interpreter Mr Madjied in connection with Mr Dawoud Joad Kathim ’ s allegation that the interpreter had told him to keep silent about the involvement of Netherlands troops. She also queried the finding that shots had been fired by Iraqi personnel and argued that Lieutenant A. ’ s actions had gone beyond legitimate self-defense. 48. The Court of Appeal gave its decision on 7 April 2008. It declined to order further investigative measures, taking the view that the lapse of time since the incident had made any further such measures pointless. It refused to order the prosecution of Lieutenant A. Its reasoning read, inter alia, as follows : “The legitimation for the functional use of force in the area in issue is laid down in the Rules of Engagement (RoE) and the SFIR Instructions on the use of force, revised version of 24 July 2003, which are derived from that document. Counsel has asked the Court of Appeal in camera to make the RoE available. These, however, are not included in the file, [and] neither the Court of Appeal nor the Advocate General have them. The test in the present case will be carried out under the SFIR Instructions on the use of force. It is indicated in this instruction that the use of force is permitted, inter alia, in self-defence and in defence of own troops and other persons designated by the MND (SE) Commander. On the subject of aimed fire, it is mentioned in this instruction that aimed fire may be given if [an SFIR member himself], own troops or persons under his protection are threatened with violence that may cause serious bodily harm or death and there are no other ways to prevent this. Examples given include cases in which a person fires or aims his weapon at the person concerned, own troops or persons under his protection and in which a person deliberately drives a car into the person concerned, own troops or persons under his protection. It appears from the file that [Lieutenant A.], who was investigating traces relating to a shooting incident that had taken place shortly before, in which shots had been fired from a car, was confronted on the spot with a car that ignored the VCP and came in his direction at high speed. At that moment shots were fired. [Lieutenant A.] assumed that the shots were being fired from the car. This assumption is entirely understandable, in view of the fact that [Lieutenant A.] was not required to expect that shots would be fired from own or friendly units – the Netherlands servicemen present, or the members of the ICDC present – in his direction. It makes no difference that counsel has argued that others present on the spot made a different assessment of the situation. After all, [Lieutenant A.] was in a different position and did not observe the situation in the same way as the other group on the opposite side of the road, which moreover was using an image intensifier. Nor does the fact that [Lieutenant A.] fired at the moment when the car had passed make any difference, given that shortly before the post had been fired at by a vehicle distancing itself therefrom and [Lieutenant A.] had, as he has indicated, to consider the fact that there were friendly troops on the other side of the road whom he did not wish to draw into his line of fire. Counsel has further suggested that [Lieutenant A.] could have fired a warning shot. Pursuant to the Instructions on the use of force a warning shot shall be fired only if the operational conditions admit of it and there is no need to do so for example if the person concerned or others in the direct vicinity are under armed attack. In view of the above the Court of Appeal considers that [Lieutenant A.] could reasonably [have] believe [d] that he and his own troops were under fire and that, on this assumption, he acted within the limits of the applicable Instructions on the use of force. The Court of Appeal therefore finds that the Public Prosecutor rightly declined to bring a prosecution.” B. Weapons used in the incident 1. Diemaco C7A1 49. The Diemaco C7A1 infantry rifle is the standard weapon issued to the Netherlands military. Of Canadian manufacture, it is a development of the better-known American-designed Armalite AR-15/Colt M16 rifle. It is capable of automatic and semiautomatic fire. The magazine issued to the Netherlands armed forces as standard holds up to thirty rounds. Its rate of fire in automatic mode is 700-940 rounds per minute. 50. Like the AR-15/M16, the Diemaco rifle fires the 5.56x45 mm (or 5.56 NATO) cartridge. The bullet yaws and frequently fragments when it hits a body at high velocity, causing severe damage to tissue. 2. Kalashnikov AK-47 51. The Kalashnikov AK-47 rifle was originally designed and manufactured in the Soviet Union but clones have been produced in many countries. Formerly the main weapon of Warsaw Pact infantry, it and its clones are today issued to the military of many countries, including local forces in Iraq. 52. Like the AK-47 itself, its ammunition, the 7.62x39 mm cartridge, is produced in large quantities by many manufacturers. The standard bullet has considerable penetrating power; however, when it hits a body without passing right through, it too can yaw and fragment, producing much the same effects as the 5.56 mm NATO bullet. C. The Netherlands military presence in Iraq 1. General background 53. From July 2003 until March 2005 Netherlands troops participated in the Stabilization Force in Iraq (SFIR) in battalion strength. They were stationed in the province of Al-Muthanna as part of Multinational Division South-East (MND-SE), which was under the command of an officer of the armed forces of the United Kingdom. 54. The participation of Netherlands forces in MND-SE was governed by a Memorandum of Understanding between the United Kingdom and the Kingdom of the Netherlands, to which Rules of Engagement were appended. Both documents were classified confidential and remain so. 55. Netherlands military personnel were issued with an aide-mémoire drawn up by the Netherlands Chief of Defence Staff ( Chef Defensiestaf ). This was a reference document containing a summary of the Rules of Engagement. They were also issued with Instructions on the Use of Force ( Geweldsinstructie ), likewise drawn up by the Chief of Defence Staff. 56. As to the occupation of Iraq between 1 May 2003 and 28 June 2004, see generally Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, §§ 9-19, 7 July 2011. 2. The letter to the Lower House of Parliament 57. On 6 June 2003 the Minister of Foreign Affairs ( Minister van Buitenlandse Zaken ) and the Minister of Defence ( Minister van Defensie ) together sent a letter to the Lower House of Parliament ( Tweede Kamer der Staten-Generaal ) on the situation in the Middle East (Lower House of Parliament, Parliamentary Year 2002-03, no. 23,432, no. 116), setting out, in particular, the reasons for which the Government had decided to send Netherlands forces to take part in SFIR and providing background information. This letter reads, inter alia : “ As requested by the British, the Netherlands units will be deployed in the south of Iraq, in the province of Al-Muthanna ... This province comes within the responsibility of a British division. The operational line of command thus runs via British divisional headquarters and then via American headquarters in Baghdad to American Central Command (CENTCOM) which co-ordinates military direction. ” and “ Mandate/Legal basis The basis for sending Netherlands troops to Iraq is to be found in United Nations Security Council Resolution 1483. The Government is of the opinion that the provisions of this resolution provide such a basis. The resolution is explicitly based on Chapter VII of the United Nations Charter, and in its first paragraph appeals to Member States and organisations ‘ to assist the people of Iraq in their efforts to reform their institutions and rebuild their country, and to contribute to conditions of stability and security in Iraq in accordance with this resolution ’. More generally, the penultimate operational paragraph of Resolution 1483 calls upon Member States and international and regional organisations ‘ to contribute to the implementation of this resolution ’. The report of the Security Council meeting at which this resolution was adopted makes it clear that there was broad consensus as regards the starting point that this resolution provides a basis for Member States to send troops to Iraq, within the framework drawn by the resolution. The resolution makes it clear in its preamble that there is a distinction to be drawn between the United States and the United Kingdom, which are active in Iraq in the capacity ( hoedanigheid ) of occupying powers, and states which do not have that capacity. This finding by the Security Council in a resolution adopted under Chapter VII of the United Nations Charter must be understood as an authoritative opinion as to the status of the participating states, an opinion that is binding on the United Nations Member States. Paragraph 5 of the resolution makes a clear appeal ( ‘ calls upon ’ ) to all the countries concerned (including the countries that are not present as occupying powers) ‘ to comply fully with their obligations under international law including in particular the Geneva Conventions of 1949 and the Hague Regulations of 1907 ’. The Netherlands will heed this call. ” and “ Influence The Stabilization Force will consist of a coalition of participating countries led by the United States and the United Kingdom. It is important that the other troop-contributing countries should be sufficiently involved in the determination of the security force ’ s general political-military policy and the exchange of information. To that end, the United Kingdom will set up a ‘ Committee of Contributors ’ for the British sector, which will enable close consultation between Government representatives, analogous to the procedure which the British have set up for ISAF [i.e. the International Security Assistance Force, deployed in Afghanistan] and which is now also followed by the Netherlands and Germany for ISAF. Troop-contributing countries will also be involved in military direction through national representatives in the operational headquarters. ” and “ Instructions for the use of force (Rules of Engagement) ‘ Rules of Engagement ’ (ROE) are instructions to military units which set out the circumstances, conditions, degree and modality of the permitted use of force. Their content is not made public. The ROE are drawn up on the basis of military-operational and legal considerations. These include considerations relating to humanitarian law and the laws of war, as well as political/diplomatic considerations. This is done with reference to a NATO document in which guidelines are set out for ROE. As is the practice in other peace operations, it is provided that the Netherlands shall take over the ROE of the ‘ lead nation ’, in this case the United Kingdom. The Netherlands can make changes to the instructions for the use of force based on domestic directives and considerations. Although the ROE have not yet been finalised, the Government intends them to be robust, which means among other things that there should be wide powers for ‘ force protection ’ and the creation of a safe and stable environment. On this basis, the Government assumes that the ROE will offer sufficient possibility for carrying out the tasks even in the face of hostilities or riots. Command structure The entire operation in Iraq is under the command of US CENTCOM, in which a Coalition Forces Land Component Commander (CFLCC) directs the operation from Baghdad. For that purpose, Iraq is divided into four sectors. The sectors in northern Iraq and around Baghdad will be led by the United States. Poland is in charge of a sector and the United Kingdom is in charge of the south of Iraq. The Netherlands battalion will be under the operational control of the British division as an independent unit ( zelfstandige eenheid ). Within the framework of NATO support for Poland it has been decided to station some Netherlands personnel in Polish headquarters. Besides, the Polish sector adjoins the American sector and the presence of Netherlands personnel facilitates better overall co-ordination. Incidentally ( Overigens ), the Netherlands will retain ‘ full command ’ [English in the original] over Netherlands military personnel at all times. The Chief of Defence Staff will guard the mandate and the military objective of the Netherlands troops. If necessary, he will give further directions in the name of the Minister of Defence. ” 3. Royal Military Constabulary presence in Iraq 58. There was a Royal Military Constabulary unit attached to the Netherlands forces in Iraq. It is stated by the applicant that they shared the living quarters of the regular troops. D. Instructions to Netherlands SFIR personnel 59. The respondent Government have submitted versions issued on 24 July 2003 of the aide-mémoire for SFIR commanders and the SFIR soldier ’ s card as issued to Netherlands personnel. As relevant to the case before the Court, they read as follows (translations by the Court, English-language expressions used in the Dutch original in italics throughout ): 1. The aide-mémoire for SFIR commanders “ This instruction sheet contains a simplified rendering, drawn up for commissioned and non-commissioned officers, of the Rules of Engagement (ROE) for MND (SE) and the Netherlands restrictions applied to them. In case of doubt, consult the English-language text of the ROE and the pertaining Netherlands declarations. Where this sheet differs from the ROE and the Netherlands declarations, the ROE and the Netherlands declarations shall take precedence. MISSION 1. Your mission is to contribute to the creation of a safe and stable environment in Iraq to make possible the reconstruction of the country and the transition to representative self-government. The use of strictly necessary force is permitted as set out below. GENERAL RULES 2. Use of force is permitted only if other means are insufficient. Note the following: (a) in all circumstances, use no greater force than is strictly necessary to carry out your task; (b) collateral damage (to persons or goods) must be prevented as much as possible. SELF-DEFENCE 4. The use of strictly necessary force, including force that may cause death or serious bodily harm ( deadly force ) and involving the use of permitted weapons, is permitted: (a) to defend yourself; (b) to prevent the theft or destruction of property belonging to SFIR that are essential for the execution of the mission. USE OF FORCE FOR OTHER REASONS 4. The use of strictly necessary force, including force that may cause death or serious bodily harm ( deadly force ) and involving the use of permitted weapons, apart from the right to self-defence, is permitted: (a) to defend own troops and other persons designated by the MND (SE) Commander ( designated persons ); (b) to prevent the theft or destruction of goods designated by the MND (SE) Commander ( designated property ); (c) to prevent unauthorised access to military installations belonging to SFIR and other places designated by the MND (SE) Commander (including designated property ) (for example Military Restricted Areas ); (d) for the purpose of apprehending, searching and disarming enemy units if they endanger the safety of SFIR units or other persons designated by the MND (SE) Commander in the execution of the mission; (e) against hostile acts and hostile intent; (f) as ordered by your on-scene commander. ... WARNING PROCEDURE 6. If operational circumstances permit, a warning that fire will be opened must be given beforehand. Some examples of situations in which it is permitted to open fire without warning are: (a) if you yourself or others in your immediate vicinity are under armed attack; or (b) if giving a warning will increase the risk that you or any other person may be killed or seriously wounded. 7. You give warning by calling out: in English: ‘ STABILIZATION FORCE! STOP OR I WILL FIRE! ’ followed by, in the local language, ‘ OEGAF DFEE-SJ! AU-OE ILLA ARMIE BILL NAAR! ’ [2] (Stop, army! Or I will fire!) 8. If the warning is not heeded, you may fire a warning shot as ordered by the on-scene commander or on the basis of existing standing orders. HOSTILE ACT AND HOSTILE INTENT 9. A hostile act is an aggressive act amounting to an attack or a threatened attack using force that may result in death or serious injury directed against own troops, designated persons or designated property. The following are examples (not an exhaustive enumeration) of hostile acts: (a) a person firing at you, at own troops or designated persons or designated property; (b) a person placing explosives or incendiary devices or throwing them at you, at own troops, or at designated persons or designated property; (c) a person deliberately driving a car into you, or into own troops, or designated persons, or designated property. ... REQUIREMENT TO USE ONLY STRICTLY NECESSARY FORCE 11. Whenever it is permitted to use force, you are obliged to limit the amount of force to what is strictly necessary. Take all possible precautions to prevent escalation and limit collateral damage as much as possible. It is forbidden to attack civilians as such, except in case of self-defence. It is forbidden to attack property which is strictly civilian or religious in character, unless this property is used for military purposes. 12. If you must open fire, you are obliged: (a) to fire only aimed shots; (b) to fire no more shots than is necessary; and (c) to take all necessary precautions to prevent collateral damage (to persons and property); and (d) to cease firing as soon as the situation so permits. You must then secure the area and take care of any wounded. OTHER COMMAND GUIDELINES ... 18. Prevent, and report up the line of command, any suspected crimes against the humanitarian laws of war. ” 2. The SFIR soldier ’ s card “ MISSION 1. Your mission is to contribute to the creation of a safe and stable environment in Iraq to make possible the reconstruction of the country and the transition to representative self-government. USE OF FORCE 2. Use of force is permitted in the following cases: (a) in self-defence; (b) in defence of own troops and other persons designated by the MND (SE) Commander; (c) to prevent the theft or destruction of property belonging to SFIR that are essential for the execution of the mission and other property designated by the MND (SE) Commander; (d) to prevent unauthorised access to military installations belonging to SFIR and other places designated by the MND (SE) Commander (including designated property) (for example Military Restricted Areas ); (e) for the purpose of apprehending, searching and disarming enemy units if they endanger the safety of SFIR units or other persons designated by the MND (SE) Commander in the execution of the mission; (f) as ordered by your on-scene commander. GENERAL RULES 3. Use of force is permitted only if other means are insufficient. Note the following: (a) try to avoid escalation; (b) in all circumstances, use no greater force than is strictly necessary to carry out your task; (c) collateral damage (to persons or goods) must be prevented as much as possible. 4. Persons who attack you or others, or who make or force unauthorised entry into SFIR military installations or other places designated by the MND (SE) Commander, may be apprehended and searched for the purpose of disarming them until it is established that they no longer dispose of weapons with which you or others can be killed or wounded. You may seize dangerous objects and if necessary disable them – for immediate use – if these objects endanger persons, property or the execution of the mission. 5. As soon as the execution of the mission so allows, apprehended persons must be handed over to the competent Iraqi or occupying (UK) authorities. 6. Treat everyone humanely. 7. Collect the wounded and take care of them, regardless of the faction to which they belong. 8. Do not collect ‘ war trophies ’. 9. Prevent violations of the humanitarian laws of war and report any violations and suspected violations to your commander. 10. Report all use of force to your commander. WARNINGS AND WARNING SHOTS 11. If the situation permits, you are obliged to give warning before firing aimed shots. You warn that you will fire if [the persons addressed] do not halt, or do not cease the endangering act. You give warning by calling out: in English: ‘ STABILIZATION FORCE! STOP OR I WILL FIRE! ’ followed by, in the local language, ‘ OEGAF DFEE-SJ! AU-OE ILLA ARMIE BILL NAAR! ’ (Stop, army! Or I will fire!) 12. If the warning is not heeded, you may fire a warning shot as ordered by the on-scene commander or on the basis of orders given to you. AIMED FIRE 13. You may open aimed fire if you yourself, own troops or persons under your protection are threatened with violence that may cause serious bodily harm or death and there are no other ways to prevent this. Here are some examples: MINIMUM FORCE 14. If you have to open fire, you must: 15. It is forbidden to use deliberate force against civilians, unless this is necessary for self-defence. 16. it is forbidden to attack property with a strictly civilian or religious character, unless: (a) this property is used for military purposes; and (b) your commander orders you to. 17. It is forbidden to simulate an attack or other aggressive actions. 18. It is forbidden to use tear gas. ” E. The Royal Military Constabulary 60. The Royal Military Constabulary is a branch of the armed forces, on a level with the Royal Navy ( Koninklijke Marine ), the Royal Army ( Koninklijke Landmacht ) and the Royal Air Force ( Koninklijke Luchtmacht ). Its members have military status and hold military rank. It has its own line of command; its commanding officer holds the rank of lieutenant general ( luitenant-generaal ) and is directly answerable to the Minister of Defence. 61. The duties of the Royal Military Constabulary, as relevant to the present case, include “ carrying out police duties for Netherlands and other armed forces, as well as international military headquarters, and persons belonging to those armed forces and headquarters ” (section 6(1)(b) of the 1993 Police Act ( Politiewet 1993 )). 62. Members of the Royal Military Constabulary undergo both military and police training. Non-commissioned officers holding the rank of sergeant ( wachtmeester ) or higher may be appointed as civil servants invested with investigative powers ( opsporingsambtenaren ), and certain categories of commissioned officers may be appointed as assistant public prosecutors ( hulpofficieren van justitie ). 63. In their capacity as military police or military police investigators, Royal Military Constabulary personnel are subordinate to the public prosecutor to the Regional Court of Arnhem. F. The Military Chamber of the Arnhem Court of Appeal 64. At the relevant time, Article 9 of the Code of Military Criminal Procedure ( Wet militaire strafrechtspraak ) provided that the benches of the Military Chamber of the Arnhem Court of Appeal should consist of two judges of the Court of Appeal, one of whom should preside, and one military member. The military member should be a serving officer holding the rank of captain ( kapitein ter zee, Royal Navy), colonel ( kolonel, Royal Army), group captain ( kolonel, Royal Air Force ) or higher, who was also qualified for judicial office; he was promoted to the titular rank of commodore ( commandeur, Royal Navy), brigadier ( brigadegeneraal, Royal Army) or air commodore ( commodore, Royal Air Force) if he did not already hold that substantive rank. He could not be a member of the Royal Military Constabulary. The military member was appointed for a term of four years, renewable once for a further such term; compulsory retirement was at the age of sixty (Article 6 § 4 of the Code of Military Criminal Procedure). 65. Section 68(2) of the Judiciary (Organisation) Act ( Wet op de rechterlijke organisatie ) provides that the military members of the Military Chamber of the Arnhem Court of Appeal participate as judges on an equal footing with their civilian colleagues and are subject to the same duties of confidentiality (sections 7 and 13 of that Act) and functional independence and impartiality (section 12); and also that they shall be subject to the same scrutiny of their official behaviour as civilian judges (sections 13a–13g). The latter involves review of specific behaviour by the Supreme Court ( Hoge Raad ), initiated, at the request of an interested party or proprio motu, by the Procurator General ( procureur-generaal ) to the Supreme Court. G. Relevant domestic law and procedure 66. The provisions of domestic law which are relevant to the case are the following: 1. The Constitution of the Kingdom of the Netherlands Article 97 “ 1. There shall be armed forces for the defence and protection of the interests of the Kingdom, and in order to maintain and promote the international legal order. 2. The Government shall have supreme authority over the armed forces. ” 2. The Criminal Code ( Wetboek van Strafrecht ) Article 41 “ 1. Anyone who commits an act which is necessary in order to defend his own or someone else ’ s physical integrity ( lijf ), sexual integrity ( eerbaarheid ) or property against immediate unlawful assault shall not be liable for punishment in respect of that act. 2. A transgression of the limits of necessary defence shall not be punishable if it has been caused by a strong emotion occasioned, with immediacy, by an assault. ” Article 42 “ Anyone who commits an act prescribed by law shall not be liable for punishment in respect thereof. ” Article 43 “ 1. Anyone who commits an act for the purpose of carrying out an official order given by the authority invested with the relevant competence shall not be liable for punishment in respect thereof. 2. An official order given without the necessary competence does not confer impunity unless it was considered by the subordinate in good faith as having been given [by an authority acting within their competence] and obedience thereto lay within the ambit of his subordination. ” 3. The Military Criminal Code ( Wetboek van Militair Strafrecht ) Article 4 “ Netherlands criminal law shall apply to military personnel who commit any punishable act outside the Netherlands. ” Article 38 “ 1. Anyone who commits an act permitted under the laws of war within the limits of his competence, or who could not be punished without violating a treaty in force between the Netherlands and the power with which the Netherlands is at war or any regulation adopted pursuant to such a treaty, shall not be liable for punishment. 2. A serviceman who uses force in the lawful execution of his task and consistent with the rules laid down for that task shall not be liable for punishment. ” Article 71 “ In this Code the expression ‘ war ’ shall be understood to include an armed conflict that cannot be considered a war properly so-called and in which the Kingdom is involved, whether for individual or collective self-defence or for the restoration of international peace and security. ” Article 135 “ The expression ‘ service instruction ’ ( dienstvoorschrift ) shall mean a written decision of general purport given in the form of, or pursuant to, an order in council for the Kingdom or for one of the countries of the Kingdom [3] ( bij of krachtens algemene maatregel van rijksbestuur of van bestuur dan wel een bij of krachtens landsverordening onderscheidenlijk landsbesluit gegeven schriftelijk besluit van algemene strekking ) that concerns a military service interest of whatever nature ( enig militair dienstbelang ) and comprises an order or a prohibition directed to military personnel. ” 4. The Military Criminal Procedure Act ( Wet Militaire Strafrechtspraak ) Section 1 “ ... 3. The Code of Criminal Procedure shall apply unless this Act deviates from it. ” Section 8 “ ... 2. Within the Court of Appeal of Arnhem a multi-judge chamber, to be called the Military Chamber, shall have exclusive competence to consider appeals against appealable judgments of the Military Chambers of the Regional Court mentioned in section 3 [i.e. the Arnhem Regional Court]. This Chamber shall also consider complaints under Article 12 of the Code of Criminal Procedure. ” 5. The Code of Criminal Procedure ( Wetboek van Strafvordering ) Article 12 “ 1. If the perpetrator of a punishable act is not prosecuted, or if the prosecution is not pursued to a conclusion, then anyone with a direct interest ( rechtstreeks belanghebbende ) may lodge a written complaint with the Court of Appeal within whose area of jurisdiction the decision has been taken not to prosecute or not to pursue the prosecution to a conclusion. ... ” Article 148 “ 1. The public prosecutor shall be charged with the investigation of criminal acts which are triable by the regional court to which he is appointed, as well as the investigation, within the area of that regional court ’ s jurisdiction, of criminal acts triable by other regional courts or district courts. 2. To that end, he shall give orders to the other persons charged with [such] investigation. ... ” H. Relevant domestic case-law 1. The Eric O. case 67. On 27 December 2007, Sergeant Major ( sergeant-majoor ) Eric O. of the Royal Marines ( Korps Mariniers ), while leading a unit charged with salvaging the contents of a container lying alongside the “ Jackson ” route, fired a warning shot into the ground to deter a group of looters. The bullet ricocheted off the surface, mortally wounding a looter. 68. Sergeant Major O. was prosecuted for disobeying official instructions in that he had allegedly used force going beyond what was permitted by the aide-mémoire and the Instructions on the Use of Force, or in the alternative, negligent killing. 69. Following an appeal by the prosecution against an acquittal at first instance, the Military Chamber of the Court of Appeal of Arnhem acquitted Sergeant Major O. In its judgment of 4 May 2005, Landelijk Jurisprudentie Nummer (National Jurisprudence Number, “ LJN ” ) AT4988, it held that the Rules of Engagement constituted official instructions despite their secrecy. It went on to find that Sergeant Major O. had acted within the constraints of the Rules of Engagement and had not been negligent. 2. The Mustafić and Nuhanović cases 70. In 1992 Bosnia and Herzegovina declared independence from the Socialist Federal Republic of Yugoslavia. A war ensued that was to continue until December 1995. By its Resolution 743 (1992) of 21 February 1992, the Security Council of the United Nations set up a United Nations Protection Force (UNPROFOR). Troop-contributing nations included the Netherlands, which provided a battalion of airmobile infantry. This battalion, known as Dutchbat, was deployed as a peacekeeping force under United Nations command in and around the town of Srebrenica in eastern Bosnia, which was then held by the Bosniac-dominated Government of the Republic of Bosnia and Herzegovina. 71. On 10 July 1995 Bosnian Serb forces attacked the Srebrenica “ safe area ” in overwhelming force. They overran the area and took control despite the presence of Dutchbat, which in the end was left in control only of a compound in the village of Potočari. In the days that followed, Bosniac men who had fallen into the hands of the Bosnian Serb forces were separated from the women and children and killed. It is now generally accepted as fact that upwards of 7,000, perhaps as many as 8,000 Bosniac men and boys died at the hands of the Bosnian Serb forces and of Serb paramilitary forces in what has come to be known as the “ Srebrenica massacre ”. 72. Civil cases have been brought in the Netherlands courts against the Netherlands State by surviving relatives of three men killed in the Srebrenica massacre in July 1995. 73. The plaintiffs in the first case ( Mustafić v. the State of the Netherlands ) are surviving kin of an electrician who was a de facto employee of Dutchbat but did not enjoy any status conferred to persons employed by the United Nations directly. They alleged that the Netherlands State committed a breach of contract in that the Dutchbat deputy commander had refused to let him stay with his family in the compound at Potočari, as a result of which he was made to leave the compound that same day, whereas the Dutchbat leadership ought to have protected him by keeping him inside and evacuating him with Dutchbat itself. In the alternative, they alleged a tort. The plaintiff in the second case ( Nuhanović v. the State of the Netherlands ) was himself a de facto employee of Dutchbat, for which he worked as an interpreter but also without the status of United Nations employee; he is the son of one man killed in the massacre and the brother of another. He alleged a tort in that the Dutchbat deputy commander had turned the two men out of the compound. 74. On 6 September 2013 the Supreme Court gave judgment in both cases (LJN BZ9225, Nuhanović, and LJN BZ9228, Mustafić ). As relevant to the case before the Court, these judgments, which in their essential parts are identical, read as follows (excerpt from the Nuhanović judgment, translation by the Supreme Court itself): “ 3.10.1. Part 1 of the cassation appeal submits that in findings of law 5.7 and 5.8 of the interim judgment the Court of Appeal has failed to recognize that a UN troop contingent that has been established in accordance with Chapter VII of the UN Charter and has been placed under the command and control of the United Nations – in this case UNPROFOR, of which Dutchbat formed part – is an organ of the United Nations. This means that attribution of the conduct of such a troop contingent should be made by reference to article 6 DARIO [i.e. the International Law Commission ’ s Draft Articles on the Responsibility of International Organizations (Sixty-third session of the International Law Commission, UN Doc A/66/10, to appear in Yearbook of the International Law Commission, 2011, vol. II, Part Two)] and not by reference to article 7 DARIO. According to this part of the appeal, application of article 6 DARIO means that Dutchbat ’ s conduct should, in principle, always be attributed to the United Nations. 3.10.2. It is apparent from the Commentary of article 7 DARIO ... that this attribution rule applies, inter alia, to the situation in which a State places troops at the disposal of the United Nations in the context of a UN peace mission, and command and control is transferred to the United Nations, but the disciplinary powers and criminal jurisdiction (the ‘ organic command ’ ) remain vested in the seconding State. It is implicit in the findings of the Court of Appeal that this situation occurs in the present case. After all, in finding of law 5.10 of the interim judgment the Court of Appeal has held – and this has not been disputed in the cassation appeal – that it is not at issue that the Netherlands, as the troop-contributing State, retained control over the personnel affairs of the military personnel concerned, who had remained in the service of the Netherlands, and retained the power to punish these military personnel under disciplinary and criminal law. The submission in part 1 of the cassation appeal that the Court of Appeal has failed to apply the attribution rule of article 6 DARIO and has instead wrongly applied the attribution rule of article 7 DARIO therefore fails. 3.11.1. Part 2 of the cassation appeal consists of a series of submissions directed against findings of law 5.8 – 5.20 of the interim judgment, in which the Court of Appeal has defined the criterion of effective control in applying the attribution rule of article 7 DARIO to the present case. 3.11.2. In so far as these grounds of appeal are based on the submission that international law excludes the possibility that conduct can be attributed both to an international organization and to a State and that the Court of Appeal therefore wrongly proceeded on the assumption that there was a possibility that both the United Nations and the State had effective control over Dutchbat ’ s disputed conduct, they are based on an incorrect interpretation of the law. As held above at 3.9.4., international law, in particular article 7 DARIO in conjunction with article 48 (1) DARIO, does not exclude the possibility of dual attribution of given conduct. It follows that the Court of Appeal was able to leave open whether the United Nations had effective control over Dutchbat ’ s conduct in the early evening of 13 July 1995. Even if this was the case, it does not necessarily mean that the United Nations had exclusive responsibility. 3.11.3. In so far as it is submitted in these grounds of the cassation appeal that the Court of Appeal has applied an incorrect criterion in assessing whether the State had effective control over Dutchbat at the moment of the disputed conduct, they too are based on an incorrect interpretation of the law. For the purpose of deciding whether the State had effective control it is not necessary for the State to have countermanded the command structure of the United Nations by giving instructions to Dutchbat or to have exercised operational command independently. It is apparent from the Commentary on article 7 DARIO ... that the attribution of conduct to the seconding State or the international organization is based on the factual control over the specific conduct, in which all factual circumstances and the special context of the case must be taken into account. In the disputed findings of law the Court of Appeal has examined, in the light of all circumstances and the special context of the case, whether the State had factual control over Dutchbat ’ s disputed conduct. The Court of Appeal has not therefore interpreted or applied the law incorrectly. ” It followed that the Court of Appeal ’ s judgment finding the Netherlands State responsible for the deaths of the three men could stand. I. Other domestic documents 1. Evaluation report on the application of military criminal procedure in operations abroad 75. This report, dated 31 August 2006, was drawn up by a committee consisting of a senior civil servant, a former chief advocate general to the Arnhem Court of Appeal and a judge. It was commissioned by the Minister of Defence at the request of the Lower House of Parliament in the wake of the commotion caused by the Eric O. case (see §§ 67-69 above ). 76. Among the subjects discussed in this report is jurisdiction within the meaning of Article 1 of the Convention. On this point, the report states (p. 30): “ The formal extraterritorial effect of the Convention would appear limited to certain specific cases. This does not alter the fact that the standards flowing from the Convention are of general importance to Netherlands military operations abroad. In particular, important basic standards arise from the Convention which can apply to criminal investigations into the use of force that has caused death or wounding. ... ” There follows an analysis of domestic case-law on the substantive and procedural aspects of Article 2 in the light of the Court ’ s case-law. 77. The report makes mention of changes already introduced in prosecution policy and the way in which Rules of Engagement and other instructions are relayed to field commanders following the Eric O. case. It suggests further adjustments. 78. Criticism of the lack of preparation of Royal Military Constabulary personnel for police work in foreign theatres of operation is confirmed, but by 2006 “ much has been invested in improving the quality of military policing ” and more is to be done in the months to come. 79. Similarly, the report states that the Public Prosecution Service, which is composed of civilian lawyers, has on occasion been found lacking in “ situational awareness ”. This has led to over-hasty decisions to prosecute military personnel, the Eric O. case being cited as a case in point. However, here also, improvements are observed. 80. The shooting incident which led to the present application is mentioned among the real-life cases studied by the committee, but is not discussed in detail. 2. The report of the Van den Berg Committee 81. In response to allegations that Iraqi citizens had been maltreated or even tortured by Netherlands military personnel, the Minister of Defence ordered an inquiry by an official committee. This committee included a former member of parliament (its chairman, Dr J.T. van den Berg, from whom the committee takes its name), a serving member of parliament, a retired lieutenant general and a retired rear admiral. 82. A report of the committee ’ s findings was published in June 2007. It is stated that an earlier version of the report was read and commented on by two legal experts, one of these being Ms Zegveld, now the applicant ’ s representative. 83. The report mentions frictions within the Royal Military Constabulary unit, which is stated inter alia to have been inadequately trained for police - type criminal investigations, and tensions between the Royal Military Constabulary unit and the Royal Marines battalions, which were the first Netherlands contingents to be sent to Iraq (preceding the Royal Army battalion stationed there at the time of the death of Mr Azhar Sabah Jaloud). 84. The report also states that the Netherlands was not an “ occupying power ” and for that reason had made certain caveats; among other things, Netherlands troops were not empowered to keep any persons interned or to prosecute crimes. Anyone arrested by Netherlands troops had to be handed over to either the United Kingdom military or to the Iraqi authorities, depending on the nature of the suspicion. “ Conversations ” with persons so arrested were permitted within the context of force protection. 85. The report addresses the question whether persons outside the Kingdom of the Netherlands in an area where Netherlands troops are operating in an armed conflict can be said to be within Netherlands jurisdiction. It answers this question in the affirmative. 86. The Minister of Defence presented this report to the Lower House of Parliament on 18 June 2007, with a covering letter commenting on some of its findings but endorsing the conclusions. 3. The final evaluation report 87. A final evaluation report was published after the completed withdrawal of the last Netherlands contingent. It states that the Netherlands Government added a number of “ caveats ” (limitations) to the tasks of the Netherlands troops. These “ caveats ” were that the Netherlands would not assume any administrative duties and would not deploy “ executive law enforcement development activities ”. They were inspired by the desire not to be considered a de facto occupying power. 88. As to the choice of methods, it is stated that initially the intention was not to lay any great stress on the military presence, and to avoid as much as possible the use of patrols and checkpoints. In practice, however, it turned out that security could best be provided by means of frequent patrols, both by day and by night, and by setting up vehicle checkpoints on routes potentially used by criminals or terrorists. 89. Elsewhere the report states that there were a number of incidents in which Netherlands troops were fired at, a number of which had taken place at vehicle checkpoints. In the cases where Iraqis were wounded or killed, no acts contravening the Rules of Engagement had been established. It is mentioned that one Iraqi wounded by Netherlands fire spent several weeks in the Netherlands for treatment. J. Relevant international law 1. The Hague Regulations 90. The definition of an Occupying Power, and its duties as relevant to the case before the Court, can be found primarily in Articles 42 to 56 of the Regulations concerning the Laws and Customs of War on Land (The Hague, 18 October 1907: hereafter, “ the Hague Regulations ” ). 91. Articles 42 and 43 of the Hague Regulations provide as follows: Article 42 “ Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised. ” Article 43 “ The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country. ” 2. The Fourth Geneva Convention 92. Articles 27 to 34 and 47 to 78 of the Convention (IV) relative to the Protection of Civilian Persons in Time of War (Geneva, 12 August 1949: hereafter, “ the Fourth Geneva Convention ” ) set out the obligations of an Occupying Power in detail. Articles 6 and 29 of the Fourth Geneva Convention provide as follows: Article 6 “ The present Convention shall apply from the outset of any conflict or occupation mentioned in Article 2. In the territory of Parties to the conflict, the application of the present Convention shall cease on the general close of military operations. In the case of occupied territory, the application of the present Convention shall cease one year after the general close of military operations; however, the Occupying Power shall be bound, for the duration of the occupation, to the extent that such Power exercises the functions of government in such territory, by the provisions of the following Articles of the present Convention: 1 to 12, 27, 29 to 34, 47, 49, 51, 52, 53, 59, 61 to 77, and 143. ” Article 29 “ The Party to the conflict in whose hands protected persons may be is responsible for the treatment accorded to them by its agents, irrespective of any individual responsibility which may be incurred. ” 3. United Nations Security Council Resolutions 93. The Security Council of the United Nations ( “ the Security Council ” ) adopted Resolution 1483 (2003) at its 4761st meeting on 22 May 2003. As relevant to the case before the Court, it reads as follows: “ The Security Council, Recalling all its previous relevant resolutions, Reaffirming the sovereignty and territorial integrity of Iraq, ... Noting the letter of 8 May 2003 from the Permanent Representatives of the United States of America and the United Kingdom of Great Britain and Northern Ireland to the President of the Security Council (S/2003/538) and recognizing the specific authorities, responsibilities, and obligations under applicable international law of these states as occupying powers under unified command (the ‘ Authority ’ ), Noting further that other States that are not occupying powers are working now or in the future may work under the Authority, Welcoming further the willingness of Member States to contribute to stability and security in Iraq by contributing personnel, equipment, and other resources under the Authority, ... Acting under Chapter VII of the Charter of the United Nations, 1. Appeals to Member States and concerned organizations to assist the people of Iraq in their efforts to reform their institutions and rebuild their country, and to contribute to conditions of stability and security in Iraq in accordance with this resolution; 2. Calls upon all Member States in a position to do so to respond immediately to the humanitarian appeals of the United Nations and other international organizations for Iraq and to help meet the humanitarian and other needs of the Iraqi people by providing food, medical supplies, and resources necessary for reconstruction and rehabilitation of Iraq ’ s economic infrastructure; ... 4. Calls upon the Authority, consistent with the Charter of the United Nations and other relevant international law, to promote the welfare of the Iraqi people through the effective administration of the territory, including in particular working towards the restoration of conditions of security and stability and the creation of conditions in which the Iraqi people can freely determine their own political future; 5. Calls upon all concerned to comply fully with their obligations under international law including in particular the Geneva Conventions of 1949 and the Hague Regulations of 1907; ... 8. Requests the Secretary-General to appoint a Special Representative for Iraq whose independent responsibilities shall involve reporting regularly to the Council on his activities under this resolution, coordinating activities of the United Nations in post-conflict processes in Iraq, coordinating among United Nations and international agencies engaged in humanitarian assistance and reconstruction activities in Iraq, and, in coordination with the Authority, assisting the people of Iraq through: (a) coordinating humanitarian and reconstruction assistance by United Nations agencies and between United Nations agencies and non-governmental organizations; (b) promoting the safe, orderly, and voluntary return of refugees and displaced persons; (c) working intensively with the Authority, the people of Iraq, and others concerned to advance efforts to restore and establish national and local institutions for representative governance, including by working together to facilitate a process leading to an internationally recognized, representative government of Iraq; (d) facilitating the reconstruction of key infrastructure, in cooperation with other international organizations; (e) promoting economic reconstruction and the conditions for sustainable development, including through coordination with national and regional organizations, as appropriate, civil society, donors, and the international financial institutions; (f) encouraging international efforts to contribute to basic civilian administration functions; (g) promoting the protection of human rights; (h) encouraging international efforts to rebuild the capacity of the Iraqi civilian police force; and (i) encouraging international efforts to promote legal and judicial reform; 9. Supports the formation, by the people of Iraq with the help of the Authority and working with the Special Representative, of an Iraqi interim administration as a transitional administration run by Iraqis, until an internationally recognized, representative government is established by the people of Iraq and assumes the responsibilities of the Authority; ... 26. Calls upon Member States and international and regional organizations to contribute to the implementation of this resolution; 27. Decides to remain seized of this matter. ” 94. The Security Council adopted Resolution 1511 (2003) at its 4844th meeting on 16 October 2003. As relevant to the case before the Court, it reads as follows: “ The Security Council, Reaffirming its previous resolutions on Iraq, including resolution 1483 (2003) of 22 May 2003 and 1500 (2003) of 14 August 2003, and on threats to peace and security caused by terrorist acts, including resolution 1373 (2001) of 28 September 2001, and other relevant resolutions, Underscoring that the sovereignty of Iraq resides in the State of Iraq, reaffirming the right of the Iraqi people freely to determine their own political future and control their own natural resources, reiterating its resolve that the day when Iraqis govern themselves must come quickly, and recognizing the importance of international support, particularly that of countries in the region, Iraq ’ s neighbours, and regional organizations, in taking forward this process expeditiously, Recognizing that international support for restoration of conditions of stability and security is essential to the well-being of the people of Iraq as well as to the ability of all concerned to carry out their work on behalf of the people of Iraq, and welcoming Member State contributions in this regard under resolution 1483 (2003), ... Acting under Chapter VII of the Charter of the United Nations, ... 13. Determines that the provision of security and stability is essential to the successful completion of the political process as outlined in paragraph 7 above and to the ability of the United Nations to contribute effectively to that process and the implementation of resolution 1483 (2003), and authorizes a multinational force under unified command to take all necessary measures to contribute to the maintenance of security and stability in Iraq, including for the purpose of ensuring necessary conditions for the implementation of the timetable and programme as well as to contribute to the security of the United Nations Assistance Mission for Iraq, the Governing Council of Iraq and other institutions of the Iraqi interim administration, and key humanitarian and economic infrastructure; 14. Urges Member States to contribute assistance under this United Nations mandate, including military forces, to the multinational force referred to in paragraph 13 above; ... 16. Emphasizes the importance of establishing effective Iraqi police and security forces in maintaining law, order, and security and combating terrorism consistent with paragraph 4 of resolution 1483 (2003), and calls upon Member States and international and regional organizations to contribute to the training and equipping of Iraqi police and security forces; ... 25. Requests that the United States, on behalf of the multinational force as outlined in paragraph 13 above, report to the Security Council on the efforts and progress of this force as appropriate and not less than every six months; 26. Decides to remain seized of the matter. ” 4. Case-law of the International Court of Justice a. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory 95. In Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I. C. J. Reports 2004, p. 136, the International Court of Justice held as follows: “ 109. The Court would observe that, while the jurisdiction of States is primarily territorial, it may sometimes be exercised outside the national territory. Considering the object and purpose of the International Covenant on Civil and Political Rights, it would seem natural that, even when such is the case, States parties to the Covenant should be bound to comply with its provisions. The constant practice of the Human Rights Committee is consistent with this. Thus, the Committee has found the Covenant applicable where the State exercises its jurisdiction on foreign territory. It has ruled on the legality of acts by Uruguay in cases of arrests carried out by Uruguayan agents in Brazil or Argentina (case No. 52/79, López Burgos v. Uruguay; case No. 56/79, Lilian Celiberti de Casariego v. Uruguay ). It decided to the same effect in the case of the confiscation of a passport by a Uruguayan consulate in Germany (case No. 106181, Montero v. Uruguay ). The travaux préparatoires of the Covenant confirm the Committee ’ s interpretation of Article 2 of that instrument. These show that, in adopting the wording chosen, the drafters of the Covenant did not intend to allow States to escape from their obligations when they exercise jurisdiction outside their national territory. They only intended to prevent persons residing abroad from asserting, vis-à-vis their State of origin, rights that do not fall within the competence of that State, but of that of the State of residence (see the discussion of the preliminary draft in the Commission on Human Rights, E/CN.4/SR.194, para. 46; and United Nations, Official record, of the General Assembly, Tenth Session, Annexes, Al2929, Part II, Chap. V, para. 4 (1955)). 11 0. The Court takes note in this connection of the position taken by Israel, in relation to the applicability of the Covenant, in its communications to the Human Rights Committee, and of the view of the Committee. In 1998, Israel stated that, when preparing its report to the Committee, it had had to face the question ‘ whether individuals resident in the occupied territories were indeed subject to Israel ’ s jurisdiction ’ for purposes of the application of the Covenant (CCPR/C/SR.1675, para. 21). Israel took the position that ‘ the Covenant and similar instruments did not apply directly to the current situation in the occupied territories ’ (ibid., para. 27). The Committee, in its concluding observations after examination of the report, expressed concern at Israel ’ s attitude and pointed ‘ to the long-standing presence of Israel in [the occupied] territories, Israel ’ s ambiguous attitude towards their future status, as well as the exercise of effective jurisdiction by Israeli security forces therein ’ (CCPR/C/79/Add.93, para. 10). In 2003 in face of Israel ’ s consistent position, to the effect that ‘ the Covenant does not apply beyond its own territory, notably in the West Bank and Gaza ... ’, the Committee reached the following conclusion: ‘ in the current circumstances, the provisions of the Covenant apply to the benefit of the population of the Occupied Territories, for all conduct by the State party ’ s authorities or agents in those territories that affect the enjoyment of rights enshrined in the Covenant and fall within the ambit of State responsibility of Israel under the principles of public international law ’ (CCPR/C0/78/1SR, para. 11). 111. In conclusion, the Court considers that the International Covenant on Civil and Political Rights is applicable in respect of acts done by a State in the exercise of its jurisdiction outside its own territory. ” b. Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda) 96. In Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Reports 2005, p. 168, the International Court of Justice held as follows: “ 172. The Court observes that, under customary international law, as reflected in Article 42 of the Hague Regulations of 1907, territory is considered to be occupied when it is actually placed under the authority of the hostile army, and the occupation extends only to the territory where such authority has been established and can be exercised (see Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 167, para. 78, and p. 172, para. 89). 173. In order to reach a conclusion as to whether a State, the military forces of which are present on the territory of another State as a result of an intervention, is an ‘ occupying Power ’ in the meaning of the term as understood in the jus in bello, the Court must examine whether there is sufficient evidence to demonstrate that the said authority was in fact established and exercised by the intervening State in the areas in question. In the present case the Court will need to satisfy itself that the Ugandan armed forces in the DRC were not only stationed in particular locations but also that they had substituted their own authority for that of the Congolese Government. In that event, any justification given by Uganda for its occupation would be of no relevance; nor would it be relevant whether or not Uganda had established a structured military administration of the territory occupied. ” and “ 179. The Court, having concluded that Uganda was an occupying Power in Ituri at the relevant time, finds that Uganda ’ s responsibility is engaged both for any acts of its military that violated its international obligations and for any lack of vigilance in preventing violations of human rights and international humanitarian law by other actors present in the occupied territory, including rebel groups acting on their own account. 1 80. The Court notes that Uganda at all times has responsibility for all actions and omissions of its own military forces in the territory of the DRC in breach of its obligations under the rules of international human rights law and international humanitarian law which are relevant and applicable in the specific situation. ” and “ 213. The Court turns now to the question as to whether acts and omissions of the UPDF and its officers and soldiers are attributable to Uganda. The conduct of the UPDF as a whole is clearly attributable to Uganda, being the conduct of a State organ. According to a well-established rule of international law, which is of customary character, ‘ the conduct of any organ of a State must be regarded as an act of that State ’ ( Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion, I.C.J. Reports 1999 (I), p. 87, para. 62). The conduct of individual soldiers and officers of the UPDF is to be considered as the conduct of a State organ. In the Court ’ s view, by virtue of the military status and function of Ugandan soldiers in the DRC, their conduct is attributable to Uganda. The contention that the persons concerned did not act in the capacity of persons exercising governmental authority in the particular circumstances, is therefore without merit. 214. It is furthermore irrelevant for the attribution of their conduct to Uganda whether the UPDF personnel acted contrary to the instructions given or exceeded their authority. According to a well-established rule of a customary nature, as reflected in Article 3 of the Fourth Hague Convention respecting the Laws and Customs of War on Land of 1907 as well as in Article 91 of Protocol I additional to the Geneva Conventions of 1949, a party to an armed conflict shall be responsible for all acts by persons forming part of its armed forces. ” c. Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) 97. In Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 43, the International Court of Justice held as follows: “ 399. This provision [i.e. Article 8 of the International Law Commission ’ s Articles on State responsibility] must be understood in the light of the Court ’ s jurisprudence on the subject, particularly that of the 1986 Judgment in the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) referred to above (paragraph 391). In that Judgment the Court, as noted above, after having rejected the argument that the contras were to be equated with organs of the United States because they were ‘ completely dependent ’ on it, added that the responsibility of the Respondent could still arise if it were proved that it had itself ‘ directed or enforced the perpetration of the acts contrary to human rights and humanitarian law alleged by the applicant State ’ ( I.C.J. Reports 1986, p. 64, para. 115); this led to the following significant conclusion: ‘ For this conduct to give rise to legal responsibility of the United States, it would in principle have to be proved that that State had effective control of the military or paramilitary operations in the course of which the alleged violations were committed. ’ (Ibid., p. 65.) 400. The test thus formulated differs in two respects from the test — described above — to determine whether a person or entity may be equated with a State organ even if not having that status under internal law. First, in this context it is not necessary to show that the persons who performed the acts alleged to have violated international law were in general in a relationship of ‘ complete dependence ’ on the respondent State; it has to be proved that they acted in accordance with that State ’ s instructions or under its ‘ effective control ’. It must however be shown that this ‘ effective control ’ was exercised, or that the State ’ s instructions were given, in respect of each operation in which the alleged violations occurred, not generally in respect of the overall actions taken by the persons or groups of persons having committed the violations. ” and “ 406. It must next be noted that the ‘ overall control ’ test has the major drawback of broadening the scope of State responsibility well beyond the fundamental principle governing the law of international responsibility: a State is responsible only for its own conduct, that is to say the conduct of persons acting, on whatever basis, on its behalf. That is true of acts carried out by its official organs, and also by persons or entities which are not formally recognized as official organs under internal law but which must nevertheless be equated with State organs because they are in a relationship of complete dependence on the State. Apart from these cases, a State ’ s responsibility can be incurred for acts committed by persons or groups of persons — neither State organs nor to be equated with such organs — only if, assuming those acts to be internationally wrongful, they are attributable to it under the rule of customary international law reflected in Article 8 cited above [i.e. Article 8 of the International Law Commission ’ s Articles on State responsibility]. This is so where an organ of the State gave the instructions or provided the direction pursuant to which the perpetrators of the wrongful act acted or where it exercised effective control over the action during which the wrong was committed. In this regard the ‘ overall control ’ test is unsuitable, for it stretches too far, almost to breaking point, the connection which must exist between the conduct of a State ’ s organs and its international responsibility. ” 5. The International Law Commission ’ s Articles on State Responsibility 98. Articles on State Responsibility with commentaries were adopted by the International Law Commission at its fifty-third session, in 2001, and submitted to the General Assembly of the United Nations as a part of the International Law Commission ’ s report covering the work of that session (A/56/10). The report appeared in the Yearbook of the International Law Commission, 2001, vol. II, Part Two. As relevant to the present case, the Articles and their commentaries (adopted together with the Articles themselves) read as follows (footnote references omitted): Article 2 Elements of an internationally wrongful act of a State “ There is an internationally wrongful act of a State when conduct consisting of an action or omission: (a) is attributable to the State under international law; and (b) constitutes a breach of an international obligation of the State. ” The commentary on this Article includes the following: “ (5) For particular conduct to be characterized as an internationally wrongful act, it must first be attributable to the State. The State is a real organized entity, a legal person with full authority to act under international law. But to recognize this is not to deny the elementary fact that the State cannot act of itself. An ‘ act of the State ’ must involve some action or omission by a human being or group: ‘ States can act only by and through their agents and representatives. ’ The question is which persons should be considered as acting on behalf of the State, i.e. what constitutes an ‘ act of the State ’ for the purposes of State responsibility. (6) In speaking of attribution to the State what is meant is the State as a subject of international law. Under many legal systems, the State organs consist of different legal persons (ministries or other legal entities), which are regarded as having distinct rights and obligations for which they alone can be sued and are responsible. For the purposes of the international law of State responsibility the position is different. The State is treated as a unity, consistent with its recognition as a single legal person in international law. In this as in other respects the attribution of conduct to the State is necessarily a normative operation. What is crucial is that a given event is sufficiently connected to conduct (whether an act or omission) which is attributable to the State under one or other of the rules set out in chapter II. (7) The second condition for the existence of an internationally wrongful act of the State is that the conduct attributable to the State should constitute a breach of an international obligation of that State ... (12) In subparagraph (a), the term ‘ attribution ’ is used to denote the operation of attaching a given action or omission to a State. In international practice and judicial decisions, the term ‘ imputation ’ is also used. But the term ‘ attribution ’ avoids any suggestion that the legal process of connecting conduct to the State is a fiction, or that the conduct in question is ‘ really ’ that of someone else. (13) In subparagraph (b), reference is made to the breach of an international obligation rather than a rule or a norm of international law. What matters for these purposes is not simply the existence of a rule but its application in the specific case to the responsible State. The term ‘ obligation ’ is commonly used in international judicial decisions and practice and in the literature to cover all the possibilities. The reference to an ‘ obligation ’ is limited to an obligation under international law, a matter further clarified in article 3. ” Article 6 Conduct of organs placed at the disposal of a State by another State “ The conduct of an organ placed at the disposal of a State by another State shall be considered an act of the former State under international law if the organ is acting in the exercise of elements of the governmental authority of the State at whose disposal it is placed. ” The commentary on this Article includes the following: “ (2) The words ‘ placed at the disposal of ’ in article 6 express the essential condition that must be met in order for the conduct of the organ to be regarded under international law as an act of the receiving and not of the sending State. The notion of an organ ‘ placed at the disposal of ’ the receiving State is a specialized one, implying that the organ is acting with the consent, under the authority of and for the purposes of the receiving State. Not only must the organ be appointed to perform functions appertaining to the State at whose disposal it is placed, but in performing the functions entrusted to it by the beneficiary State, the organ must also act in conjunction with the machinery of that State and under its exclusive direction and control, rather than on instructions from the sending State. Thus article 6 is not concerned with ordinary situations of inter-State cooperation or collaboration, pursuant to treaty or otherwise. (3) Examples of situations that could come within this limited notion of a State organ ‘ placed at the disposal ’ of another State might include a section of the health service or some other unit placed under the orders of another country to assist in overcoming an epidemic or natural disaster, or judges appointed in particular cases to act as judicial organs of another State. On the other hand, mere aid or assistance offered by organs of one State to another on the territory of the latter is not covered by article 6. For example, armed forces may be sent to assist another State in the exercise of the right of collective self-defence or for other purposes. Where the forces in question remain under the authority of the sending State, they exercise elements of the governmental authority of that State and not of the receiving State. Situations can also arise where the organ of one State acts on the joint instructions of its own and another State, or there may be a single entity which is a joint organ of several States. In these cases, the conduct in question is attributable to both States under other articles of this chapter. (4) Thus, what is crucial for the purposes of article 6 is the establishment of a functional link between the organ in question and the structure or authority of the receiving State. The notion of an organ ‘ placed at the disposal ’ of another State excludes the case of State organs, sent to another State for the purposes of the former State or even for shared purposes, which retain their own autonomy and status: for example, cultural missions, diplomatic or consular missions, foreign relief or aid organizations. Also excluded from the ambit of article 6 are situations in which functions of the ‘ beneficiary ’ State are performed without its consent, as when a State placed in a position of dependence, territorial occupation or the like is compelled to allow the acts of its own organs to be set aside and replaced to a greater or lesser extent by those of the other State. (5) There are two further criteria that must be met for article 6 to apply. First, the organ in question must possess the status of an organ of the sending State; and secondly its conduct must involve the exercise of elements of the governmental authority of the receiving State. The first of these conditions excludes from the ambit of article 6 the conduct of private entities or individuals which have never had the status of an organ of the sending State. For example, experts or advisers placed at the disposal of a State under technical assistance programmes do not usually have the status of organs of the sending State. The second condition is that the organ placed at the disposal of a State by another State must be ‘ acting in the exercise of elements of the governmental authority ’ of the receiving State. There will only be an act attributable to the receiving State where the conduct of the loaned organ involves the exercise of the governmental authority of that State. By comparison with the number of cases of cooperative action by States in fields such as mutual defence, aid and development, article 6 covers only a specific and limited notion of ‘ transferred responsibility ’. Yet, in State practice the situation is not unknown. ” Article 8 Conduct directed or controlled by a State “ The conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct. ” The commentary on this Article includes the following: “ (2) The attribution to the State of conduct in fact authorized by it is widely accepted in international jurisprudence. In such cases it does not matter that the person or persons involved are private individuals nor whether their conduct involves ‘ governmental activity ’. Most commonly, cases of this kind will arise where State organs supplement their own action by recruiting or instigating private persons or groups who act as ‘ auxiliaries ’ while remaining outside the official structure of the State. These include, for example, individuals or groups of private individuals who, though not specifically commissioned by the State and not forming part of its police or armed forces, are employed as auxiliaries or are sent as ‘ volunteers ’ to neighbouring countries, or who are instructed to carry out particular missions abroad. ” and “ (5) The Appeals Chamber of the International Tribunal for the Former Yugoslavia has also addressed these issues. In the Tadić case, the Chamber stressed that: The requirement of international law for the attribution to States of acts performed by private individuals is that the State exercises control over the individuals. The degree of control may, however, vary according to the factual circumstances of each case. The Appeals Chamber fails to see why in each and every circumstance international law should require a high threshold for the test of control. The Appeals Chamber held that the requisite degree of control by the Yugoslavian ‘ authorities over these armed forces required by international law for considering the armed conflict to be international was overall control going beyond the mere financing and equipping of such forces and involving also participation in the planning and supervision of military operations ’. In the course of their reasoning, the majority considered it necessary to disapprove the ICJ approach in the Military and Paramilitary Activities in and against Nicaragua case. But the legal issues and the factual situation in the Tadić case were different from those facing the Court in that case. The tribunal ’ s mandate is directed to issues of individual criminal responsibility, not State responsibility, and the question in that case concerned not responsibility but the applicable rules of international humanitarian law. In any event it is a matter for appreciation in each case whether particular conduct was or was not carried out under the control of a State, to such an extent that the conduct controlled should be attributed to it. ” K. Documents relevant to the occupation of Iraq 1. Coalition Provisional Authority Order no. 28 99. Coalition Provisional Authority Order no. 28, entitled “ Establishment Of The Iraqi Civil Defense Corps ”, was promulgated by the Administrator of the Coalition Provisional Authority, Ambassador L. Paul Bremer, on 9 March 2003. As relevant to the case before the Court, it provides as follows: “ Pursuant to my authority as head of the Coalition Provisional Authority (CPA), under the laws and usages of war, and consistent with relevant United Nations Security Council resolutions, including Resolution 1483(2003), Noting that Resolution 1483 appeals to Member States to assist the people of Iraq in their efforts to reform their institutions, rebuild their country, and to contribute to conditions of stability and security in Iraq, Understanding the need to address promptly threats to public security and stability resulting from wrongful acts or disasters, Recognizing that continued attacks and acts of sabotage by Ba`athist remnants and terrorists intent on undermining security in Iraq necessitate the temporary establishment of an Iraqi constabulary force to operate with Coalition Forces to counter the threat and maintain security in Iraq, I hereby promulgate the following: Section 1 Establishment of the Iraqi Civil Defense Corps 1) The Iraqi Civil Defense Corps is established as a temporary institution, subject to a decision by an internationally recognized, representative government, established by the people of Iraq, to continue or disband the Corps. 2) The Iraqi Civil Defense Corps is a security and emergency service agency for Iraq. The Iraqi Civil Defense Corps is composed of Iraqis who will complement operations conducted by Coalition military forces in Iraq to counter organized groups and individuals employing violence against the people of Iraq and their national infrastructure. 3) In support of Coalition operations to provide security and stability to the people of Iraq, the Iraqi Civil Defense Corps is authorized to perform constabulary duties, including the following tasks: patrolling urban and rural areas; conducting operations to search for and seize illegal weapons and other contraband; providing fixed site, check point, area, route and convoy security; providing crowd and riot control; disaster response services; search and rescue services; providing support to humanitarian missions and disaster recover (sic) operations including transportation services; conducting joint patrols with Coalition Forces; and, participating in other activities designed to build positive relationships between the Iraqi people and Coalition authorities including serving as community liaisons. 4) The Iraqi Civil Defense Corps is distinct from the Iraqi police force and the New Iraqi Army. The Iraqi Civil Defense Corps will complement the police force, but will be designed to perform operations that exceed the capacity of the police. a) While on duty and under the supervision of Coalition Forces, members of the Iraqi Civil Defense Corps will not be subject to the direction or control of the Iraqi Police. Except as provided herein, the Iraqi Civil Defense Corps will not have, or exercise, domestic law enforcement functions. b) The Iraqi Civil Defense Corps is not a component of the New Iraqi Army established by CPA Order 22, Creation of a New Iraqi Army (CPA/ORD/9 August 2003/22) and is not subject to the orders of the New Iraqi Army chain of command. ... Section 4 Functioning of the Iraqi Civil Defense Corps 1) The Iraqi Civil Defense Corps shall operate under the authority of the Administrator of the CPA and shall be subject to the supervision of Coalition Forces. The Administrator of the CPA may delegate to the senior military commander of Coalition Forces in Iraq responsibility and authority for the recruiting, training, organization, and control of the Iraqi Civil Defense Corps. This responsibility and authority may be redelegated pursuant to Section 7 below. 2) Operational or tactical command of units of the Iraqi Civil Defense Corps operating with Coalition Forces shall be vested in an officer of Coalition Forces designated by the senior military commander of Coalition Forces in Iraq pursuant to Section 7 below. ... ... Section 7 Delegation of Authority The Administrator of the Coalition Provisional Authority may delegate responsibilities under this Order, as determined by the Administrator, to the senior military commander of Coalition Forces in Iraq. The senior military commander of Coalition Forces in Iraq may further delegate responsibilities under this Order to those under his command. ” 2. The MND (SE) (Multinational Division, South East) Memorandum of Understanding 100. The respondent Government have submitted the following excerpt from the Memorandum of Understanding governing the arrangement between the Netherlands and the United Kingdom: “ 14.1 Members of MND (SE) may possess and carry arms and ammunition in Iraq according to their respective national operations rules and procedures for the purposes of carrying out the MND (SE) mission and when authorized to do so by Comd MND (SE). 14.2 ROE for the MND (SE) are at Annex F. The fundamental driver for the level of permissiveness in the ROE profile is Force Protection rather than the MND (SE) mission. Participants may indicate their intention to apply different levels of permissiveness to their own forces by means of national direction or clarifications to their National Contingent Commanders provided that: a. All differences are communicated to Comd MND (SE) Legal Adviser prior to implementation of such ROE in Iraq. b. No difference is more permissive than that authorized by MND (SE) ROE. 14.3 Due to its classification, Annex E [presumably Annex F is meant] is issued separately on restricted circulation. Signature of this MOU, however, signifies accession to the ROE contained within Annex F. ” 101. According to the Government, the Memorandum of Understanding also provided that the Netherlands would exercise exclusive disciplinary and criminal jurisdiction over its personnel. 102. The Agent of the respondent Government, speaking at the hearing, stated that the Memorandum of Understanding was a classified document and that the Minister of Defence had declined to declassify it in order that it be submitted to the Court. 3. The MND (C-S) (Multinational Division, Central-South) Memorandum of Understanding 103. Latvian troops participated in SFIR as part of the multinational division stationed in Central-South Iraq under Polish command. The Government of the Republic of Latvia published the applicable Memorandum of Understanding in the Latvian Herald (Latvijas Vēstnesis) the official publication of legal acts and official announcements, on 11 January 2005 (no. 5 (3163)). In its relevant parts, it reads as follows: “ SECTION FOUR — MANDATE 4.1. In accordance with the UNSCR 1483, the mandate of the SFIR MND (C-S) will be to assist the Authority in maintaining stability and security in Iraq by contributing personnel, equipment and other resources to work under its unified command in accordance with arrangements set out in section five below. Main tasks of the MND (C-S) are set out in the Mission Statement annexed to this MOU ... 4.2. Members of MND (C-S) will carry out their duties in a strict, fair and equitable manner and will refrain from any action incompatible with the independent nature of their duties. This does not interfere with the right of SFIR to act in self-defence, extended self - defence as well as force protection and mission enforcement. SECTION FIVE — COMMAND AND CONTROL OF MND (C-S) 5.1. The post of Commander MND (C-S) will be held by the Republic of Poland. The Republic of Poland will co-ordinate the introduction of the MND (C-S) structure and will be responsible for ensuring that the Participants remain informed of progress in implementing that structure. 5.2. Members of National Contingents will remain under Full Command of their participant through their National Contingent Commander/Senior National Representative. Operational Control of all National Contingents contributed to MND (C-S) will be assigned to a superior Commander. 5.3. Participants are responsible for planning and execution of movements of their forces and sustainment from home stations to PODs [ports of disembarkation] along the strategic LOCs [lines of communication]. This responsibility can be delegated to other agencies who act on behalf of the Participants. Reception, Staging and Onward Movements (RSOM) operations including Port Clearance will be conducted in line with existing Standard Operating Procedures unless otherwise decided. Tactical Control of all aspects of the Strategic and Tactical LOCs will be assigned to the respective Movements Control Organisations at the theatre level (CJTF-7). 5.4. Comd MND (C-S) has Co-ordinating Authority over National Support Element logistic assets in order to meet operational requirements or to ensure deconfliction of use of limited infrastructure or assets. In such circumstances the provisions of Section eleven may be applied. Those logistic assets that form all or part of a Participant ’ s contribution to MND (C-S) will be controlled in accordance with para 5.2 above. 5.5. Transfer of Authority (TO A) of Forces to Comd MND (C-S) in accordance with the Command Status above, will take place at declared Full Operational Capability (FOC) by the National Contingent Commanders (NCCs). Participants will confirm the Command Status of their Forces by signal to Comd MND (C-S) on TOA. 5.6. National Contingent Commanders/Senior National Representatives are responsible for the maintenance of order and discipline within the National Contingent under his or her command. 5.7. Comd MND (C-S) may request the withdrawal of any personnel contributed to MND (C-S). National Contingent Commanders/Senior National Representatives will review any such request and will seek to comply where permissible in accordance with their own National regulations. 5.8. Comd MND (C-S) is responsible for coordination with CPA in the MND (C-S) AOR. Brigade Commanders after consultation with concerned Participants will nominate representatives to be the military point of contact with CPA inside their Brigade AOR, keeping informed MND (C-S) Commander. These representatives will also sit on a Joint Co-ordination Board. 5.9. English will be the official working and command language in the MND (C-S) down to the battalion level, except for the Battle Group 1. SECTION FOURTEEN — RULES OF ENGAGEMENT (ROE)/CARRIAGE OF ARMS AND AMMUNITION 14.1. Members of MND (C-S) may possess and carry arms and ammunition in Iraq for the purposes of carrying out the MND (C-S) mission when authorised to do so by Comd MND (C-S). 14.2. ROE for the MND (C-S) will be a part of MND (C-S) operational order. The fundamental driver for the level of permissiveness in the ROE Profile is Force Protection rather than the MND (C-S) mission. Participants may indicate their intention to apply different levels of permissiveness to their own forces by means of national direction or clarifications to their National Contingent Commanders/Senior National Representatives provided that: a. Initial differences are to be communicated to Comd MND (C-S) before TO A. Other differences can be communicated if there is a need. b. No difference is more permissive than that authorised MND (C-S) ROE. SECTION SIXTEEN — CLAIMS 16.1. Except as covered elsewhere in this MOU, each Participant waives any claim it may have against any other Participant for injury (including injury resulting in death) suffered by its National Contingent personnel and damage or loss of property owned by it, its National Contingent personnel caused by acts of omissions of any other Participant or its National Contingent personnel in the performance of official duties in connection with this MOU. 16.2. Where the relevant Participants mutually determine in respect of any claim that damage, loss, injury or death was caused by reckless acts, reckless omissions, wilful misconduct or gross negligence of only one of the Participants, its service personnel, servants or agents the costs of any liability will be borne by that Participant alone. 16.3. Where more than one Participant is responsible for the injury, death, loss or damage or it is not possible to attribute responsibility for the injury, death, loss or damage specifically to one Participant, the handling and settling of the claim will be approved by the relevant Participants. The costs of handling and settling the claims will be equally shared between the Participants concerned. 16.4. Third party claims including those for property loss or damage and for personal injury, illness or death or in respect of any other matter arising from or attributed to MND (C-S) personnel or any persons employed by it, whether normally resident in Iraq or not and that do not arise in connection with military combat operations, shall be submitted and dealt with by the Participant whose National Contingent personnel, property, activities or other assets are alleged to have caused the claimed damage, in a manner consistent with the national laws of the Participant state. 16.5. Third party claims will be received initially by HQ MND (C-S) and will be forwarded to the Participant deemed to be responsible. Where more than one Participant is responsible for the injury, death, loss or damage or it is not possible to attribute responsibility for the injury, death, loss or damage specifically to one Participant; the cost of handling and settling the third party claims will be distributed equally between the Participants concerned. ANNEX ATO THE MND (C-S) MOU THE STABILIZATION FORCE MND (C-S) MISSION STATEMENT Introduction 1. The Mission will involve the Participants in assisting with the conduct of key tasks. Furthermore, these tasks will increasingly involve working with the Coalition Provisional Authority (CPA) and the local people of Iraq with respect to restoration and establishment of local institutions. MND C-S Area of Operational Responsibility (AOR) 2. The Area of Operational Responsibility (AOR) for the Stabilization Force in Iraq (SFIR) in MND (C-S) comprises five provinces: Babil, Karbala, Wasit, Al Qadistyah, An Najaf A provisional map of the MND (C-S) AOR is at Appendix 1 to this Annex. Key Tasks 3. The SFIR MND (C-S) will undertake a range of tasks in the AOR in support of its Mission and these will be determined in response to the changing situation. Key tasks, will include: a. External Security/Border Security. SFIR MND (C-S) led. Protection of key points, including monitoring the land border and assisting in the establishment and training of an Iraqi Border Security Force. b. Internal Security. SFIR MND (C-S) led. The maintenance of a safe and secure environment, including intelligence-led operations to dislocate the threat from subversive and armed groups. c. Force Protection. SFIR MND (C-S) led. This will include all aspects of current operations to ensure the security of SFIR and, for a limited period, CPA personnel throughout the AOR d. Fixed Site Security. SFIR MND (C-S) led. This will include responsibility for maintaining security at the critical and sensitive sites within the AOR e. Governance and Support for Infrastructure. CPA led. SFIR MND (C-S) will, for a limited period of time, support CPA (C-S) efforts to establish local governance based on the rule of law that affords equal rights and justice to all Iraqi citizens in the AOR without regard to ethnicity, religion, or gender. SFIR MND (C-S) will support this by working at the local and regional level to establish mechanisms for governance and civil administration until the CPA has the capability of working with the local Iraqi people to establish full governance. SFIR MND (C-S) will continue to support this within the AOR with Government Support Teams (GST) until the CPA Local Government Teams (LGT) are operational within the AOR Com SFIR MND (C-S) will continue to provide liaison to the GST after the CPA assumes control and will work closely with CPA (C-S) to ensure military operations are synchronised with Coalition activities. Further support may be provided for a limited period to assist in the establishment and maintenance of Iraqi infrastructure. f. Law Enforcement Development. CPA led. SFIR MND (C-S) will provide support for a limited period. SFIR MND (C-S) will continue to assist with the development of the Civilian Police Force, including the conduct of joint patrols, the establishment of a Police Evaluation Team, the development of a Complaints Procedure, and support to the local Iraqi courts and judiciary in maintaining law & order. After successful transition to the CPA and the local Iraqis, SFIR MND (C-S) will maintain a liaison role in order to coordinate law enforcement operations, training and oversight with the military. g. War Criminals. CPA led. SFIR MND (C-S) may need to provide support to facilitate the detention of suspected war criminal in the AOR. h. Restoration of Essential Services. CPA led. SFIR MND (C-S) will provide support for a limited period until civilian contracted and Iraqi personnel can assume responsibility. SFIR MND (C-S) will be responsible with the support of CPA for facilitating the provision of essential services within the AOR. i. Building the Iraqi Military. CPA led. SFIR MND (C-S) will provide nominal military support but the manning, training and equipping of an Iraqi Military Structure are a CPA function. 4. Under the Fourth Geneva Convention (the Civilian convention) the only authority to act as the ‘ detaining power ’ in the AOR is the Comd SFIR MND (C-S) on behalf of the Authority. 5. The Commander of SFIR MND (C-S) will liaise with such political, social and religious leaders as necessary in the AOR to ensure that religious, ethnic and cultural sensitivities in Iraq are appropriately respected by the members of the SFIR MND (C-S). Identification 6. SFIR MND (C-S) military and paramilitary personnel will wear uniforms and carry arms as authorised by their orders. The Iraqi Civilian Police Force, when on duty, will be visibly identified by uniform or other distinctive markings and may carry arms as authorised by CPA Regulations and Orders and once the Iraqi (Administration) is established. Threat Assessment 7. Coalition Forces assess that the internal threat to stability in Iraq is from armed factions jostling for political power and influence, remnants of the Baath Party and its splinter organisations, criminals and terrorists. Externally, the threat is limited and neighbouring countries are supportive. The situation is dynamic and may change. The SFIR MND (C-S) force posture may need to be adjusted as the situation develops and Participants will need to be flexible. 8. The Participants must understand the need to provide the Commander of SFIR MND (C-S) with any information relevant to the security of the mission, its personnel, equipment and locations. Membership of SFIR in MND (C-S) 9. It is understood that once the MND (C-S) is established, its membership may change Final Authority to Interpret 10. The Commander of MND (C-S) is the final authority regarding operational interpretation of this Mission statement. Summary 11. This Mission Statement sets out the obligations and responsibilities of the Participants and outlines main tasks of the SFIR MND (C-S) mission in the AOR. ” 104. The signatories to this document are the Republic of Latvia, the Ministry of Defence of the Republic of Bulgaria, the Ministry of Defence of the Kingdom of Denmark, the Secretary of the Armed Forces of the Dominican Republic, the Department of National Defence of the Philippines, the Secretary of Defence of the Republic of Honduras, the Ministry of Defence of the Republic of Hungary, the Ministry of Defence of the Republic of Kazakhstan, the Ministry of National Defence of the Republic of Lithuania, the Ministry of Defence of Mongolia, the Minister of Defence of the Kingdom of the Netherlands, the Ministry of Defence of the Republic of Nicaragua, the Ministry of Defence of the Kingdom of Norway, the Ministry of National Defence of Romania, the Ministry of Defence of the Republic of El Salvador, the Ministry of Defence of the Slovak Republic, the Ministry of Defence of the Kingdom of Spain, the Ministry of Defence of the Kingdom of Thailand, the Ministry of Defence of Ukraine and the Minister of National Defence of the Republic of Poland. COMPLAINTS 105. The applicant alleged violations of Article 2 in its procedural aspect. 106. He complained that the investigation had been insufficiently independent, for the following reasons: ( a) The Royal Military Constabulary unit in Iraq had been under the sole command of the Netherlands battalion commander; there had been no presence of the public prosecution service. Since the members of the unit shared their living quarters with the regular troops, the distance between them and the individuals they might be called upon to investigate had been insufficient. ( b) The Arnhem public prosecutor ’ s decision not to prosecute Lieutenant A. had been based entirely on the reports of the Royal Military Constabulary, on which the public prosecutor had placed excessive reliance. ( c) The Military Chamber of the Arnhem Court of Appeal, which included in its composition a serving Army officer who did not belong to the judiciary, also placed full reliance on the results of the very limited investigations by the Royal Military Constabulary. 107. The applicant also complained that the investigation had been insufficiently effective, for the following reasons: ( a) No statements had been taken from the ICDC personnel who had witnessed the incident, a Royal Military Constabulary investigator having decided that the information which they gave was of no pertinence. ( b) The questioning of the key witness, Mr Dawoud Joad Kathim, the driver of the Mercedes car, had been extremely cursory. His evidence was important because he was the only civilian witness available, and thus the only witness without any hierarchical or otherwise functional link to Lieutenant A. Moreover, his statement as recorded by the Royal Military Constabulary investigators was inconsistent with the statement which he made later the same day to an Iraqi official. ( c) Lieutenant A. had not been questioned for the first time until seven hours after the incident, and had not been separated from the other witnesses during that period. He would therefore have had ample opportunity to discuss the incident with the other witnesses beforehand and adapt his statement accordingly. ( d) The day after the incident, Lieutenant A. stated that he had been able to obtain from the ICDC deputy commander a list of the names of ICDC personnel who had fired their weapons and the corresponding number of rounds fired. The fact that he, as the prime suspect, had been able to obtain this information from a key witness also affected the effectiveness of the investigation. ( e) Furthermore, the list obtained by Lieutenant A. had not been added to the file, despite its potential importance to the case. ( f) The Royal Military Constabulary had held the body of Mr Azhar Sabah Jaloud for some hours, yet no autopsy was performed during that period. The body was transferred to an Iraqi civilian hospital, where an autopsy was carried out in the absence of Royal Military Constabulary officials. The autopsy report, such as it was, was added to the file but not translated. ( g) Other forensic evidence had been treated in a similarly careless fashion. In particular, no detailed translation had been made of the report concerning the bullet fragments taken from the body. 108. Finally, the applicant complained that Mr Azhar Sabah Jaloud ’ s next-of-kin had been insufficiently involved in the investigation and informed of its progress. In particular, no attempt had ever been made to contact Mr Azhar Sabah Jaloud ’ s family; nor had anyone taken the trouble to inform them of the decision not to prosecute Lieutenant A. THE LAW I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION A. Admissibility 1. The Government ’ s preliminary objection 109. The Government disputed the admissibility of the application on the ground that Mr Azhar Sabah Jaloud had not fallen within the “ jurisdiction ” of the respondent Contracting Party within the meaning of Article 1 of the Convention. 110. As it did in Al- Skeini and Others v. the United Kingdom [GC], no. 55721/07, § 102, ECHR 2011, the Court will join this objection to the merits. 2. Conclusion on admissibility 111. The Court considers, in the light of the parties ’ submissions, that the application 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 the application 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. Without prejudice to its decision on the Government ’ s preliminary objection, which it will decide below, the Court will therefore declare the application admissible. B. Jurisdiction 1. Arguments before the Court a. The respondent Government 112. The Netherlands Government argued that the events complained of did not fall within the “ jurisdiction ” of the Netherlands within the meaning of Article 1 of the Convention. They asked the Court to distinguish the present case from Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07, ECHR 2011. 113. Firstly, the Netherlands was not an “ occupying power ” in terms of international humanitarian law. Only the United States and the United Kingdom were “ occupying powers ”, having been so designated by United Nations Security Council Resolution 1483; this distinguished them from the other States working under the Coalition Provisional Authority. 114. Nor had the Netherlands assumed in Iraq any of the public powers normally to be exercised by a sovereign government. These powers were entirely in the hands of the United States and the United Kingdom, which had set up the Coalition Provisional Authority. 115. The Netherlands contingent had at all times been under the operational control of the commander of MND (SE), an officer from the United Kingdom. 116. Although in the early stages of SFIR operations Netherlands troops had had to involve themselves in law enforcement, in the course of 2003 that responsibility had passed into the hands of Iraqi authorities. By the time of the events complained of, therefore, police powers were not exercised by Netherlands authorities or troops. 117. In Al-Skeini and Others, the Court had found the United Kingdom to have “ jurisdiction ” within the meaning of Article 1 of the Convention because the deaths in issue had occurred as a result of the actions of United Kingdom soldiers during the course of, or contiguous to, security operations, notably military patrols, carried out by them. In contrast, the death of Mr Azhar Sabah Jaloud had occurred at a vehicle checkpoint established and manned by the ICDC. Although Netherlands military personnel had been there at the relevant time to observe and advise, this did not imply a hierarchical relationship such as would render the Netherlands responsible : authority rested with the Iraqi security forces. 118. Netherlands forces had not at any time exercised physical authority or control over Mr Azhar Sabah Jaloud, since he had never been in their custody. More generally, Netherlands forces had been present in south-eastern Iraq in limited strength and they had not had the degree of control needed to bring the area within Netherlands “ jurisdiction ” for purposes of Article 1. 119. The fact of a serviceman firing at a person, even assuming it could be established that the shot was fatal, was not in itself sufficient for jurisdiction in this sense to arise. The respondent Government pointed to Banković and Others v. Belgium and Others (GC) (dec.), no. 52207/99, ECHR 2001-XII, in which the Court had found that the mere fact of being the victim of an attack by bomber aircraft of a particular State did not suffice to bring a person within the jurisdiction of that State. 120. Finally, even assuming that at the relevant time the Netherlands exercised effective control over the vehicle checkpoint, the area in question was so limited that there would no longer be any meaningful difference between “ effective overall control of an area ” and “ State agent authority and control ”. b. The intervening Government 121. The United Kingdom Government stressed the “ essentially territorial ” nature of jurisdiction within the meaning of Article 1; any extension outside the territory of a Contracting State was exceptional. They interpreted the above-mentioned Banković decision, in particular its § 65, as implying that the notion of “ jurisdiction ” should not be allowed to “ evolve ”, or “ incrementally develop ”, in the same way as the law in respect of the substantive rights and freedoms guaranteed by the Convention; in their words, the “ living instrument ” doctrine was inapplicable. 122. They argued that a Contracting State which exercised “ effective control over an area ” outside its national territory, whether as a result of lawful or unlawful military action, had the responsibility under Article 1 to secure within that area the entire range of substantive rights set out in the Convention and those additional Protocols which it had ratified. From this it followed, in their submission, that the circumstances in which this exception to the territorial nature of jurisdiction might be applied were necessarily very limited. 123. Even so, in § 80 of Al-Skeini and Others the Court had agreed with the British Court of Appeal that it would have been unrealistic for United Kingdom forces in Basrah City and elsewhere in Iraq to be expected to guarantee the entire gamut of substantive Convention rights to the local population. 124. In Al-Skeini and Others and in other cases the Court had found Article 1 jurisdiction to exist based on exclusive physical power and control and actual or purported legal authority over an individual (hypothetically in Issa and Others v. Turkey, no. 31821/96, 16 November 2004, but in reality in Öcalan v. Turkey [GC], no. 46221/99, ECHR 2005 ‑ IV; Al-Saadoon and Mufdhi v. the United Kingdom, no. 61498/08, ECHR 2010; and Medvedyev and Others v. France [GC], no. 3394/03, ECHR 2010 ). In contrast, in the above-mentioned Banković and Others decision the physical act of bombing had not been seen as an example of physical power and control such as might give rise to extra-territorial jurisdiction; consequently, neither should the physical act of shooting at a moving vehicle occupied by individuals not in detention. 125. An essential difference between the present case and Al-Skeini and Others was the fact that in the latter case the United Kingdom was recognised as an “ occupying power ” within the meaning of Article 42 of the Hague Rules and therefore had the attendant duty under Article 43 of those Rules to exercise the powers normally belonging to the State. 126. Finally, if the Court were to conclude that the Netherlands had jurisdiction in the present case, there was a “ real risk ” that Contracting States might in future be “ deterred from answering the call of the United Nations Security Council to contribute troops to United Nations mandated forces, to the detriment of the United Nations Security council ’ s mission to secure international peace and security ”. c. The applicant 127. In the applicant ’ s submission the matters complained of came within the jurisdiction of the Netherlands. 128. In the first place, jurisdiction arose by virtue of the control enjoyed by the Netherlands over its own servicemen. Through them, the Netherlands exercised some key public powers. The Coalition Provisional Authority was not run by the United States and the United Kingdom alone; while these two States had taken upon themselves tasks of an administrative and coordinative nature, other States – including the Netherlands – participated by enforcing the CPA ’ s authority and providing security. This comprised “ the exercise of some of the public powers normally to be exercised by a sovereign government ”. 129. Netherlands troops were exercising such public powers when, with the “ consent, invitation or acquiescence ” of the CPA, it oversaw the ICDC at the checkpoint. 130. As was reflected in the official position of the Netherlands Government, the Netherlands at all times retained full command over Netherlands military personnel. 131. In the second place, the Netherlands enjoyed jurisdiction by virtue of its effective military control over the area in question. Citing Issa and Others v. Turkey, no. 31821/96, 16 November 2004, the applicant argued that jurisdiction could arise even if military control was limited in time and geographical projection. 132. In the third place, the Netherlands enjoyed jurisdiction as an “ occupying power ” within the meaning of Article 42 of the Hague Rules. Although admittedly only the United States and the United Kingdom were actually named as “ occupying powers ” by United Nations Security Council resolution 1483, the determination of that status within the meaning of the Hague Rules was a question of fact, not of choice. 133. The MND (C-S) Memorandum of Understanding (see paragraph 103 above) – which the applicant took to be the same, for present purposes, as the Memorandum of Understanding applicable in the present case – actually referred to the Hague Rules, from which it followed that those Rules were applicable. 134. In the fourth place, no other State had control over the events in issue. The United Kingdom had no direct military responsibility in Al ‑ Muthanna province; nor in any case had the Netherlands ever sought to defer jurisdiction to it. Nor did any Iraqi civilian administration or military or police forces exist at the relevant time; during this period, it was the CPA which exercised the powers of government, alongside other members of the military coalition, including the Netherlands. 135. As to the facts of the case, Netherlands military personnel had been in control of the vehicle checkpoint, and had authority over the Iraqi personnel manning it. Moreover, the Netherlands Royal Military Constabulary had carried out the investigation : they had seized ICDC Sergeant Hussam Saad ’ s rifle, Mr Dawoud Joad Kathim ’ s car and Mr Azhar Sabah Jaloud ’ s body. This meant that the Netherlands had exercised “ some of the public powers normally to be exercised by a sovereign government ”. 136. Finally, the Netherlands Minister of Defence, in his letter of 18 June 2007 transmitting the report of the Van den Berg Committee to Parliament, had endorsed that committee ’ s conclusion that the Convention applied to Netherlands troops in their dealings with Iraqi nationals in Iraq. 2. The Court ’ s assessment a. The MND (C-S) (Multinational Division, Central-South) Memorandum of Understanding 137. Speaking at the Court ’ s hearing, the Agent of the Government stated, in response to a question from the Court, that the Netherlands defence authorities had declined to declassify the Memorandum of Understanding applicable between the United Kingdom and the Netherlands in Al-Muthanna Province for the Court ’ s use; however, the MND (C-S) ) Memorandum of Understanding “ [gave] a good idea of the kind of document we [were] talking about ”. 138. The Court notes that the signatories to the MND (C-S) Memorandum of Understanding include the defence authorities of a multitude of SFIR troop contributors, including the Netherlands Minister of Defence (see paragraph 104 above). It also observes that the section of the MND (SE) Memorandum of Understanding that the Government have been prepared to divulge (see paragraph 100 above) is very similar, though not identical, to the corresponding section of the MND (C-S) Memorandum of Understanding (see paragraph 10 3 above), and that the Agent of the respondent Government has not made mention of, or even suggested, the existence of any significant substantive difference between the two memoranda. In these circumstances, the Court will proceed on the basis that the two documents are in the relevant respects the same. It will nonetheless use the MND (C-S) Memorandum of Understanding with appropriate caution. b. Applicable principles 139. The Court would observe that, while the jurisdiction of States is primarily territorial, it may sometimes be exercised outside the national territory (compare Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 136, § 109, see paragraph 95 above). The Court reiterates that in Al ‑ Skeini, cited above, §§ 130-1 39, it summarised the principles on the exercise of jurisdiction within the meaning of Article 1 of the Convention outside the territory of the Contracting States as follows: “ 130. ... As provided by [Article 1 of the Convention] 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; 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). (α) The territorial principle 131. A State ’ s jurisdictional competence under Article 1 is primarily territorial (see Soering, cited above, § 86; Banković, cited above, §§ 61 and 67; Ilaşcu, cited above, § 312). Jurisdiction is presumed to be exercised normally throughout the State ’ s territory ( Ilaşcu, 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 ( Banković, cited above, § 67). 132. To date, the Court in its case-law has recognised a number of exceptional circumstances capable of giving rise to the exercise of jurisdiction by a Contracting State outside its own territorial boundaries. In each case, the question whether exceptional circumstances exist which require and justify a finding by the Court that the State was exercising jurisdiction extra-territorially must be determined with reference to the particular facts. (β) State agent authority and control 133. The Court has recognised in its case-law that, as an exception to the principle of territoriality, a Contracting State ’ s jurisdiction under Article 1 may extend to acts of its authorities which produce effects outside its own territory (see Drozd and Janousek v. France and Spain, judgment of 26 June 1992, Series A no. 240, § 91; Loizidou v. Turkey (preliminary objections), 23 March 1995, § 62, Series A no. 310; Loizidou v. Turkey (merits), 18 December 1996, § 52, Reports of Judgments and Decisions 1996 ‑ VI; and Banković, cited above, 69) ... 135. .. [T] he Court has recognised the exercise of extra-territorial jurisdiction by a Contracting State when, through the consent, invitation or acquiescence of the Government of that territory, it exercises all or some of the public powers normally to be exercised by that Government ( Banković, cited above, § 71). Thus where, in accordance with custom, treaty or other agreement, authorities of the Contracting State carry out executive or judicial functions on the territory of another State, the Contracting State may be responsible for breaches of the Convention thereby incurred, as long as the acts in question are attributable to it rather than to the territorial State (see Drozd and Janousek, cited above; Gentilhomme and Others v. France, nos. 48205/99, 48207/99 and 48209/99, judgment of 14 May 2002; and also X and Y v. Switzerland, nos. 7289/75 and 7349/76, Commission ’ s admissibility decision of 14 July 1977, DR 9, p. 57). 136. In addition, the Court ’ s case-law demonstrates that, in certain circumstances, the use of force by a State ’ s agents operating outside its territory may bring the individual thereby brought under the control of the State ’ s authorities into the State ’ s Article 1 jurisdiction. This principle has been applied where an individual is taken into the custody of State agents abroad. For example, in Öcalan v. Turkey [GC], no. 46221/99, § 91, ECHR 2005 ‑ IV, the Court held that ‘ directly after being handed over to the Turkish officials by the Kenyan officials, the applicant was effectively under Turkish authority and therefore within the “ jurisdiction ” of that State for the purposes of Article 1 of the Convention, even though in this instance Turkey exercised its authority outside its territory ’. In Issa and Others v. Turkey, no. 31821/96, 16 November 2004, the Court indicated that, had it been established that Turkish soldiers had taken the applicants ’ relatives into custody in Northern Iraq, taken them to a nearby cave and executed them, the deceased would have been within Turkish jurisdiction by virtue of the soldiers ’ authority and control over them. In Al ‑ Saadoon and Mufdhi v. the United Kingdom (dec.), no. 61498/08, §§ 86-89, 30 June 2009, the Court held that two Iraqi nationals detained in British-controlled military prisons in Iraq fell within the jurisdiction of the United Kingdom, since the United Kingdom exercised total and exclusive control over the prisons and the individuals detained in them. Finally, in Medvedyev and Others v. France [GC], no. 3394/03, § 67, ECHR 2010-..., the Court held that the applicants were within French jurisdiction by virtue of the exercise by French agents of full and exclusive control over a ship and its crew from the time of its interception in international waters. The Court does not consider that jurisdiction in the above cases arose solely from the control exercised by the Contracting State over the buildings, aircraft or ship in which the individuals were held. What is decisive in such cases is the exercise of physical power and control over the person in question. ... (γ) Effective control over an area 138. Another exception to the principle that jurisdiction under Article 1 is limited to a State ’ s own territory occurs when, as a consequence of lawful or unlawful military action, a Contracting State exercises effective control of an area outside that national territory. The obligation to secure, in such an area, the rights and freedoms set out in the Convention, derives from the fact of such control, whether it be exercised directly, through the Contracting State ’ s own armed forces, or through a subordinate local administration ( Loizidou (preliminary objections), cited above, § 62; Cyprus v. Turkey [GC], no. 25781/94, § 76, ECHR 2001 ‑ IV, Banković, cited above, § 70; Ilaşcu, cited above, §§ 314-316; Loizidou (merits), cited above, § 52). Where the fact of such domination over the territory is established, it is not necessary to determine whether the Contracting State exercises detailed control over the policies and actions of the subordinate local administration. The fact that the local administration survives as a result of the Contracting State ’ s military and other support entails that State ’ s responsibility for its policies and actions. The controlling State has the responsibility under Article 1 to secure, within the area under its control, the entire range of substantive rights set out in the Convention and those additional Protocols which it has ratified. It will be liable for any violations of those rights ( Cyprus v. Turkey, cited above, §§ 76-77). 139. It is a question of fact whether a Contracting State exercises effective control over an area outside its own territory. In determining whether effective control exists, the Court will primarily have reference to the strength of the State ’ s military presence in the area (see Loizidou (merits), cited above, §§ 16 and 56; Ilaşcu, 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, cited above, §§ 388-394). ... ” c. Application of the above principles to the facts of the case 140. The respondent Party relied heavily on the argument that the Netherlands could not be blamed for the events complained of since authority lay elsewhere: either with the United States and the United Kingdom together, designated as “ occupying powers ” by United Nations Security Council Resolution 1483, or with the United Kingdom alone as “ lead nation ” in south-eastern Iraq, holding command over the Netherlands contingent of SFIR. 141. For the purposes of establishing jurisdiction under the Convention, the Court takes account of the particular factual context and relevant rules of international law. 142. Turning first to the international - law background, the Court points out that the status of “ occupying power ” within the meaning of Article 42 of the Hague Regulations, or lack of it, is not per se determinative. Although it found that concept relevant in Al-Skeini ( cited above, § 143) and in Al ‑ Jedda v. the United Kingdom [GC], no. 27021/08, § 77, ECHR 2011, the Court did not need to have recourse to it in finding that the responsibility of Turkey was engaged in respect of events in northern Cyprus (see, inter alia, Loizidou v. Turkey (preliminary objections), 23 March 1995, Series A no. 310, and Cyprus v. Turkey [GC], no. 25781/94, ECHR 2001 ‑ IV), or that of Russia in respect of the situation in Moldovan territory east of the Dniester (see, inter alia, Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99, ECHR 2004 ‑ VII, and Catan and Others v. the Republic of Moldova and Russia [ GC], nos. 43370/04, 8252/05 and 18454/06, ECHR 2012 (extracts) ). 143. Furthermore, the fact of executing a decision or an order given by an authority of a foreign State is not in itself sufficient to relieve a Contracting State of the obligations which it has taken upon itself under the Convention (see, mutatis mutandis, Pellegrini v. Italy, no. 30882/96, § 40, ECHR 2001-VIII, and K. v. Italy, no. 38805/97, § 21, ECHR 2004 ‑ VIII). The respondent Party is therefore not divested of its “ jurisdiction ”, within the meaning of Article 1 of the Convention, solely by dint of having accepted the operational control of the commander of MND (SE), a United Kingdom officer. The Court notes that the Netherlands retained “ full command ” over its military personnel, as the Ministers of Foreign Affairs and of Defence pointed out in their letter to Parliament (see paragraph 57 above). 144. United Nations Security Council Resolution 1483 reflected the presence in Iraq of forces from a plurality of United Nations Member States working under an “ Authority ” (the Coalition Provisional Authority) comprised of the United States and the United Kingdom. While reaffirming “ the sovereignty and territorial integrity of Iraq ”, this Resolution called upon “ all concerned ”, regardless of Occupying Power status, to “ comply fully with their obligations under international law including in particular the Geneva Conventions of 1949 and the Hague Regulations of 1907 ” (see paragraph 93 above). 145. In the wake of Resolution 1483, United Nations Security Council Resolution 1511 also “ underscored ” the sovereignty of the State of Iraq. It urged United Nations Member States to contribute to this multinational force for the purpose of restoring stability and security and called upon Member States, as well as international and regional organisations, to contribute to the training and equipping of Iraqi police and security forces (see paragraph 94 above). 146. The practical elaboration of the multinational force was shaped by a network of Memoranda of Understanding defining the interrelations between the various armed contingents present in Iraq. The letter sent to the Lower House of Parliament on 6 June 2003 by the Ministers of Foreign Affairs and Defence (see paragraph 57 above) emphasises that the Netherlands Government retained full command over the Netherlands contingent in Iraq. The Court understands, in view of the wording of paragraph 5.2 of the MND (C-S) Memorandum of Understanding (see paragraph 10 3 above), that this information was based on the MND-SE Memorandum of Understanding. 147. It appears from the Memorandum of Understanding for MND ( C ‑ S), as well as the excerpt of the Memorandum of Understanding for MND-SE to which the Government have afforded the Court access (see paragraph 100 above), that while the forces of nations other than the “ lead nations ” took their day-to-day orders from foreign commanders, the formulation of essential policy – including, within the limits agreed in the form of Rules of Engagement appended to the Memoranda of Understanding, the drawing up of distinct rules on the use of force – remained the reserved domain of individual sending States. 148. Thus it was on this basis that an aide-mémoire for SFIR commanders and a soldier ’ s card were issued to Netherlands personnel by the Netherlands Government (see paragraph 59 above). 149. Although Netherlands troops were stationed in an area in south-eastern Iraq where SFIR forces were under the command of an officer from the United Kingdom, the Netherlands assumed responsibility for providing security in that area, to the exclusion of other participating States, and retained full command over its contingent there. 150. It is not decisive either that the checkpoint was nominally manned by Iraqi ICDC personnel. The Court notes that under Coalition Provisional Authority Order no. 28 (“Establishment Of The Iraqi Civil Defense Corps”, see paragraph 99 above) the duties of the ICDC did not include enforcement of domestic law in subordination of the Iraqi authorities; in fact, the ICDC was supervised by, and subordinate to, officers from the Coalition forces (see paragraphs 1(4)(a), 4(1) and 7). 151. That being so, the Court cannot find that the Netherlands troops were placed “ at the disposal ” of any foreign power, whether it be Iraq or the United Kingdom or any other power, or that they were “ under the exclusive direction or control ” of any other State (compare, mutatis mutandis, Article 6 of the International Law Commission ’ s Articles on State Responsibility, see paragraph 98 above; see also Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 43, § 406, paragraph 9 7 above) ). 152. The Court now turns to the circumstances surrounding the death of Mr Azhar Sabah Jaloud. It notes that Mr Azhar Sabah Jaloud met his death when a vehicle in which he was a passenger was fired upon while passing through a checkpoint manned by personnel under the command and direct supervision of a Netherlands Royal Army officer. The checkpoint had been set up in the execution of SFIR ’ s mission, under United Nations Security Council Resolution 1483 (see paragraph 93 above), to restore conditions of stability and security conducive to the creation of an effective administration in the country. The Court is satisfied that the respondent Party exercised its “ jurisdiction ” within the limits of its SFIR mission and for the purpose of asserting authority and control over persons passing through the checkpoint. That being the case, the Court finds that the death of Mr Azhar Sabah Jaloud occurred within the “ jurisdiction ” of the Netherlands, as that expression is to be construed within the meaning of Article 1 of the Convention. 153. The Court has established jurisdiction in respect of the Netherlands. It is not called upon to establish whether the United Kingdom, another State Party to the Convention, might have exercised concurrent jurisdiction. d. Attribution 154. The Court reiterates that 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 general international law (see Catan, cited above, § 115). Furthermore, in Al-Skeini the Court emphasised that “ whenever the State through its agents exercises control and authority over an individual, and thus jurisdiction, the State is under an obligation under Article 1 to secure to that individual the rights and freedoms under Section 1 of the Convention that are relevant to the situation of that individual. In this sense, therefore, the Convention rights can be ‘ divided and tailored ’ (compare Banković, cited above, § 75). ” 155. The facts giving rise to the applicant ’ s complaints derive from alleged acts and omissions of Netherlands military personnel and investigative and judicial authorities. As such they are capable of giving rise to the responsibility of the Netherlands under the Convention. e. The Government ’ s preliminary objection 156. The Court dismisses the Government ’ s preliminary objection, which it had joined to the merits (see paragraph 110 above). It must now consider the validity of the applicant ’ s complaints. C. Alleged breach of the investigative duty under Article 2 157. The applicant alleged that the respondent State had failed to meet its obligations properly to investigate the death of his son with a view to bringing the person responsible to justice. He relied on Article 2 of the Convention, which 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. ” The respondent Government denied that there had been any such violation. 158. The intervening Government did not address the merits of the applicant ’ s complaints. 1. Arguments before the Court a. The applicant 159. The applicant called into question the independence of the investigation into the death of Mr Azhar Sabah Jaloud and the ensuing proceedings. 160. Firstly, he questioned the independence of the Royal Military Constabulary unit in Iraq. He asked the Court to note that members of this unit shared the living quarters with the Netherlands SFIR troops and were therefore in close proximity with them. He also stated that since the public prosecutor to whom it was required to report was stationed in the Netherlands, the Royal Military Constabulary unit was, on a day-to-day basis, under the control of the Netherlands battalion commander. 161. The lack of independence of the Royal Military Constabulary unit had also tainted the decision of the public prosecution service not to prosecute Lieutenant A. That decision had been based overwhelmingly on the Royal Military Constabulary ’ s investigation. The applicant relied on Ergi v. Turkey, 28 July 1998, Reports 1998 ‑ IV, in which the Court had found a violation of Article 2 under its procedural head, in that the public prosecutor responsible for the decision to decline jurisdiction had relied heavily on a conclusion drawn in an incident report by the gendarmerie. 162. The Military Chamber of the Arnhem Court of Appeal too had placed full reliance on the results of the very limited investigations by the Royal Military Constabulary. Instead, it ought to have ordered an investigation by an independent judge. 163. Finally, the presence of a serving military officer in the composition of the Military Chamber of the Arnhem Court of Appeal meant that the decision of that body could not be independent. The applicant cited Akkoç v. Turkey, nos. 22947/93 and 22948/93, ECHR 2000 ‑ X, and Incal v. Turkey, 9 June 1998, Reports 1998 ‑ IV. 164. The applicant also argued that the investigation had been inadequate. 165. He pointed in the first place to the failure to include in the domestic case- file the statements taken from the ICDC personnel who had been present at the checkpoint at the time of the shooting. The report of the Royal Military Constabulary, as submitted to the public prosecutor and the Military Chamber of the Arnhem Court of Appeal, had indicated only that these persons had been unable to state anything of relevance. In actual fact, detailed statements had been taken from individual ICDC members. These, however, had been withheld from the applicant and the Military Chamber of the Arnhem Court of Appeal and produced only during the proceedings before the Court. 166. The questioning of Mr Dawoud Joad Kathim, whom the applicant described as a “ key witness ” because he was the only civilian witness and the only survivor of the incident who had not been under the orders of Lieutenant A., had been extremely cursory. Moreover, his statement, as recorded by the Royal Military Constabulary investigators, was inconsistent with the statement recorded later the same day by an Iraqi official. 167. Lieutenant A. had not been questioned until seven hours after the incident and not kept separate from other witnesses during that period. He would therefore have had ample opportunity to discuss the incident with the other witnesses beforehand and to adapt his statement accordingly. 168. The day after the incident, Lieutenant A. stated that he had been able to obtain from the ICDC deputy commander a list of the names of ICDC personnel who had fired their weapons, and the corresponding number of rounds fired. The fact that he, as the prime suspect, had been able to obtain this information from a key witness also affected the effectiveness of the investigation. Furthermore, the list obtained by Lieutenant A. was not added to the file, despite its potential importance to the case. 169. The Royal Military Constabulary had held the body of Mr Azhar Sabah Jaloud for some hours, yet no autopsy had been performed during that period. The body had been transferred to an Iraqi civilian hospital, where an autopsy had been carried out in the absence of Royal Military Constabulary officials. The autopsy report, such as it was, had been added to the file but not translated. 170. Other forensic evidence had been treated in a similarly careless fashion. In particular, no detailed translation had been made of the report on the bullet fragments removed from the body. 171. Finally, the applicant complained that Mr Azhar Sabah Jaloud ’ s next-of-kin had been insufficiently involved in the investigation and informed of its progress. In particular, no attempt had ever been made to contact Mr Azhar Sabah Jaloud ’ s family; nor had anyone taken the trouble to inform them of the decision not to prosecute Lieutenant A. b. The respondent Government 172. The respondent Government submitted that there had been no violation of Article 2. 173. In their submission, no question of independence arose. 174. The Royal Military Constabulary had its own chain of command, and in conducting investigations answered only to the Public Prosecution Service; it was inevitable that the decision not to prosecute Lieutenant A. should be based on the report of their investigation. In any case, there was nothing to suggest a lack of independence on the part of the Military Chamber of the Arnhem Court of Appeal. 175. Likewise, the investigation had been sufficiently effective. 176. The Royal Military Constabulary had examined the scene of the incident and secured the available evidence immediately on arrival. 177. Lieutenant A., having himself reported the incident, had taken full responsibility for the shooting from the outset and there was no appearance of any attempt on his part to manipulate the evidence. 178. The ICDC personnel had in fact been questioned, but had been unable to report anything of significance. In any event, they were not suspects. 179. The statements taken from Mr Dawoud Joad Kathim by the Royal Military Constabulary and the Iraqi police were not contradictory, although the suggestion made in the latter statement that the interpreter had instructed him to claim that only ICDC personnel had fired was implausible. 180. The facilities for an autopsy not being available at the Netherlands camp, the body had had to be transferred into Iraqi care. It had been a decision of the Iraqi authorities to exclude Netherlands personnel from the autopsy. 181. In any event, the investigation had been sufficient to determine that, of the Netherlands soldiers present, only Lieutenant A. had fired at the car, and the criminal proceedings had focused on him. 182. Finally, the applicant had been sufficiently involved in the proceedings. He had been informed through his lawyer as soon as the latter so requested; and the information given had been sufficient for him to participate effectively in the complaint proceedings in which he had challenged the decision not to prosecute Lieutenant A. 2. The Court ’ s assessment a. As to whether shots were fired by Lieutenant A. only, or also by ICDC personnel 183. The Court must deal first with the applicant ’ s submission that the available evidence, including in particular the statements which were taken from ICDC personnel but not added to the file of the domestic proceedings, shows that shots were fired only by Lieutenant A. 184. It is true that no ICDC member has admitted to having fired at the car in which Mr Azhar Sabah Jaloud was a passenger. The Court notes, however, that, according to the Royal Military Constabulary investigators, the car in which Mr Azhar Sabah Jaloud was a passenger was hit by bullets of different calibres, some smaller than 6 mm, others larger (see paragraph 32 above). This would appear consistent with the use of at least two different types of firearms, quite conceivably the Diemaco C7A1 rifle issued to the Netherlands military (which fires the 5.56mm NATO round, see paragraph 50 above ) and the Kalashnikov AK47 rifle carried by the ICDC (which fires a 7.62 mm round, see paragraph 52 above ). In these circumstances, the applicant ’ s allegation that shots were fired only by Lieutenant A. cannot be verified. 185. In any event, the Court is called upon only to consider whether the procedural obligations resulting from Article 2 of the Convention have been met. There is therefore no need for it to make any findings of fact on this point. b. Relevant principles 186. As the Court held in its above-cited Al-Skeini and Others judgment: “ 163. The general legal prohibition of arbitrary killing by agents of the State would be ineffective in practice if there existed no procedure for reviewing the lawfulness of the use of lethal force by State authorities. The obligation to protect the right to life under this provision, read in conjunction with the State ’ s general duty under Article 1 of the Convention to ‘ secure to everyone within their jurisdiction the rights and freedoms defined in [the] Convention ’, requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force by, inter alios, agents of the State (see McCann, cited above, § 161). The essential purpose of such an investigation is to secure the effective implementation of the domestic laws safeguarding the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility (see Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 110, ECHR 2005-VII). However, the investigation should also be broad enough to permit the investigating authorities to take into consideration not only the actions of the State agents who directly used lethal force but also all the surrounding circumstances, including such matters as the planning and control of the operations in question, where this is necessary in order to determine whether the State complied with its obligation under Article 2 to protect life (see, by implication, McCann and Others, cited above, §§ 150 and 162; Hugh Jordan v. the United Kingdom, no. 24746/94, § 128, ECHR2001 ‑ III (extracts); McKerr, cited above, §§ 143 and 151; Shanaghan v. the United Kingdom, no. 37715/97, §§ 100-125, 4 May 2001; Finucane v. the United Kingdom, no. 29178/95, §§ 77-78, ECHR 2003 ‑ VIII; Nachova, cited above, §§ 114-115; and also, mutatis mutandis, Tzekov v. Bulgaria, no. 45500/99, § 71, 23 February 2006). 164. The Court has held that the procedural obligation under Article 2 continues to apply in difficult security conditions, including in a context of armed conflict (see, amongst other examples, Güleç v. Turkey, 27 July 1998, § 81, Reports of Judgments and Decisions 1998 ‑ IV; Ergi v. Turkey, 28 July 1998, §§ 79 and 82, Reports 1998 ‑ IV; Ahmet Özkan and Others v. Turkey, no. 21689/9 3, §§ 85-90 and 309-320 and 326 ‑ 330, 6 April 2004; Isayeva v. Russia, no. 57950/00, §§ 180 and 210, 24 February 2005; Kanlıbaş v. Turkey, no. 32444/96, §§ 39-51, 8 December 2005). It is clear that where the death to be investigated under Article 2 occurs in circumstances of generalised violence, armed conflict or insurgency, obstacles may be placed in the way of investigators and, as the United Nations Special Rapporteur has also observed ..., concrete constraints may compel the use of less effective measures of investigation or may cause an investigation to be delayed (see, for example, Bazorkina v. Russia, no. 69481/01, § 121, 27 July 2006). Nonetheless, the obligation under Article 2 to safeguard life entails that, even in difficult security conditions, all reasonable steps must be taken to ensure that an effective, independent investigation is conducted into alleged breaches of the right to life (see, amongst many other examples, Kaya v. Turkey, 19 February 1998, §§ 86 ‑ 92, Reports of Judgments and Decisions 1998 ‑ I; Ergi, cited above, §§ 82-85; Tanrıkulu v. Turkey [GC], no. 23763/94, §§ 101-110, ECHR 1999 ‑ IV; Khashiyev and Akayeva v. Russia, nos. 57942/00 and 57945/00, §§ 156-166, 24 February 2005; Isayeva, cited above, §§ 215 ‑ 224; Musayev and Others v. Russia, nos. 57941/00, 58699/00 and 60403/00, §§ 158-165, 26 July 2007). 165. What form of investigation will achieve the purposes of Article 2 may vary depending on the circumstances. However, whatever mode is employed, the authorities must act of their own motion once the matter has come to their attention. They cannot leave it to the initiative of the next ‑ of ‑ kin either to lodge a formal complaint or to take responsibility for the conduct of any investigative procedures (see Ahmet Özkan and Others, cited above, § 310; Isayeva, cited above, § 210). Civil proceedings, which are undertaken on the initiative of the next-of-kin, not the authorities, and which do not involve the identification or punishment of any alleged perpetrator, cannot be taken into account in the assessment of the State ’ s compliance with its procedural obligations under Article 2 of the Convention (see, for example, Hugh Jordan, cited above, § 141). Moreover, the procedural obligation of the State under Article 2 cannot be satisfied merely by awarding damages (see McKerr, cited above, § 121; Bazorkina, cited above, § 117). 166. As stated above, the investigation must be effective in the sense that it is capable of leading to a determination of whether the force used was or was not justified in the circumstances and to the identification and punishment of those responsible. This is not an obligation of result, but of means. The authorities must take the reasonable steps available to them to secure the evidence concerning the incident, including inter alia eye-witness testimony, forensic evidence and, where appropriate, an autopsy which provides a complete and accurate record of injury and an objective analysis of clinical findings, including the cause of death. Any deficiency in the investigation which undermines its ability to establish the cause of death or the person or persons responsible will risk falling foul of this standard (see Ahmet Özkan and Others, cited above, § 312; Isayeva, cited above, § 212 and the cases cited therein). 167. For an investigation into alleged unlawful killing by State agents to be effective, it is necessary for the persons responsible for and carrying out the investigation to be independent from those implicated in the events. This means not only a lack of hierarchical or institutional connection but also a practical independence (see, for example, Shanaghan, cited above, § 104). A requirement of promptness and reasonable expedition is implicit in this context. While there may be obstacles or difficulties which prevent progress in an investigation in a particular situation, a prompt response by the authorities in investigating a use of lethal force may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts. For the same reasons, there must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory. The degree of public scrutiny required may well vary from case to case. In all cases, however, the victim ’ s next-of-kin must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests (see Ahmet Özkan and Others, cited above, §§ 311 ‑ 314; Isayeva, cited above, §§ 211-214 and the cases cited therein). ” c. Independence of the investigation i. The Royal Military Constabulary unit in Iraq 187. The applicant questioned the independence of the Royal Military Constabulary unit which undertook the initial investigation, on the ground that they lived in close proximity to the Royal Army personnel whom he blames for his son ’ s death. The Government submitted that the Royal Military Constabulary was sufficiently independent. 188. The Court notes that the independence, and hence the effectiveness, of an investigation into an allegedly unlawful killing may be called into question if the investigators and the investigated maintain close relations with one another (compare Ramsahai and Others v. the Netherlands [GC], no. 52391/99, § 337, ECHR 2007 ‑ II). 189. The Government did not deny that at the relevant time the Royal Military Constabulary unit shared its living quarters with Royal Army personnel. However, no circumstances have been suggested, or become apparent, that might lead the Court to find that this in itself affected the independence of the Royal Military Constabulary unit to the point of impairing the quality of its investigations. 190. Nor does the Court find it established that the physical distance separating the Royal Military Constabulary unit stationed in Iraq from the public prosecutor in charge of its investigations, who was based in Arnhem, led to the subordination of the Royal Military Constabulary unit to the Netherlands Royal Army battalion commander on a day-to-day basis. The applicant has not submitted any evidence capable of supporting this suggestion. ii. Dependence on Royal Military Constabulary reports 191. The applicant submitted that the public prosecution service had placed excessive reliance on the Royal Military Constabulary reports. The Government disputed this. 192. Public prosecutors inevitably rely on the police for information and support. This does not in itself suffice to conclude that they lack sufficient independence vis-à-vis the police (see, mutatis mutandis, Ramsahai, cited above, § 344). 193. Moreover, the Royal Military Constabulary unit was stationed in Iraq precisely to carry out police work such as that here in issue. The Public Prosecutor ’ s reliance on its reports therefore raises no issue in itself. 194. The Court understands the main thrust of this complaint to be that the investigation was ineffective and the resulting reports unreliable. It will address the applicant ’ s concerns about the quality of the Royal Military Constabulary investigation separately below. iii. The military member of the Military Chamber of the Arnhem Court of Appeal 195. The applicant argued that the independence of the Military Chamber of the Court of Appeal was tainted by the presence of a serving military officer in its midst. The Government argued that the independence of the Military Chamber of the Court of Appeal was guaranteed. 196. In the present case, the Court has had regard to the composition of the Military Chamber as a whole. It sits as a three-member chamber composed of two civilian members of the Arnhem Court of Appeal and one military member. The military member is a senior officer qualified for judicial office; he is promoted to titular flag, general or air rank if he does not already hold that substantive rank (see paragraph 64 above). In his judicial role he is not subject to military authority and discipline; his functional independence and impartiality are the same as those of civilian judges (see paragraph 65 above). That being so, the Court is prepared to accept that the Military Chamber offers guarantees sufficient for the purposes of Article 2 of the Convention. d. Effectiveness of the investigation i. The statements by the ICDC personnel 197. In his application the applicant complained of the Royal Military Constabulary ’ s failure to take statements from the ICDC personnel who had been guarding the checkpoint at the time of the shooting incident. The report as submitted to the Military Chamber of the Arnhem Court of Appeal stated only that they had provided “ no pertinent information ” (see paragraph 25 above). 198. Following the Chamber ’ s relinquishment of jurisdiction to the Grand Chamber, the Government submitted an official record of the questioning of the ICDC members by Royal Military Constabulary officers (see paragraph 38 above). It transpires that this document contains information that might potentially have been of assistance to the Military Chamber of the Arnhem Court of Appeal, including accounts of the number of shots fired by each serviceman and the amount of ammunition remaining, and a far more detailed rendering of the statement made by the interpreter Mr Walied Abd Al Hussain Madjied. 199. As the Court has held on many occasions, the use of the term “absolutely necessary” in Article 2 § 2 indicates that a stricter and more compelling test of necessity must be employed from that normally applicable when determining whether State action is “necessary in a democratic society” under paragraph 2 of Articles 8 to 11 of the Convention. In particular, the force used must be strictly proportionate to the achievement of the aims set out in sub-paragraphs 2 (a), (b) and (c) of Article 2 (see, among many other authorities, McCann and Others v. the United Kingdom, 27 September 1995, § 149, Series A no. 324; Kelly and Others v. the United Kingdom, no. 30054/96, § 93, 4 May 2001; and Isayeva v. Russia, no. 57950/00, § 173, 24 February 2005). It follows that no domestic investigation can meet the standards of Article 2 of the Convention if it does not determine whether the use of lethal force by agents of the State went no further than the circumstances demanded (see Kaya v. Turkey, 19 February 1998, § 87, Reports 1998-I). 200. Although the investigation must be effective in the sense that it is capable of leading to the identification and, if necessary, punishment of those responsible (see, inter alia, Hugh Jordan v. the United Kingdom, no. 24746/94, § 107, ECHR 2001 ‑ III (extracts); McKerr v. the United Kingdom, no. 28883/95, § 113, ECHR 2001 ‑ III; Finucane v. the United Kingdom, no. 29178/95, § 69, ECHR 2003 ‑ VIII; Makaratzis v. Greece [GC], no. 50385/99, § 74, ECHR 2004 ‑ XI; Tahsin Acar v. Turkey [GC], no. 26307/95, § 223, ECHR 2004 ‑ III; and Giuliani and Gaggio v. Italy [GC], no. 23458/02, § 301, ECHR 2011 ), the Court would also point out that an investigation sufficient to inform a judicial finding as to whether the force used was or was not justified in the circumstances is crucial to the exercise, by any State agent prosecuted in ensuing criminal proceedings, of the rights of the defence (see, inter alia and mutatis mutandis, Edwards v. the United Kingdom, 16 December 1992, § 36, Series A no. 247 ‑ B; Rowe and Davis v. the United Kingdom [GC], no. 28901/95, § 60, ECHR 2000 ‑ II; I.J.L. and Others v. the United Kingdom, nos. 295 22/95, 30056/96 and 30574/96, § 112, ECHR 2000 ‑ IX; and Dowsett v. the United Kingdom, no. 39482/98, § 41, ECHR 2003 ‑ VII ). 201. The Military Chamber of the Arnhem Court of Appeal was called upon to consider whether Lieutenant A. had acted in accordance with the instructions given to him by the competent authority (Article 38 of the Military Criminal Code, see paragraph 66 above). Lieutenant A. ’ s instructions on the use of force, as set out on the soldier ’ s card ( see paragraph 57 above) under the heading “minimum force”, included the following ( loc. Cit. , paragraph 14): “If you have to open fire, you must: • fire only aimed shots; • fire no more shots than is necessary; and • cease firing as soon as the situation allows.” 202. The Military Chamber of the Court of Appeal confined itself to establishing as fact that Lieutenant A. had mistakenly reacted to friendly fire from across the road and to holding that Lieutenant A. was for that reason entitled to claim putative self-defence (see paragraph 48 above). It did not, however, address aspects relevant to the question whether Lieutenant A. had acted within the confines of his instructions as regards the proportionality of the force used. In particular, it made no findings as to whether more shots had been fired than was necessary and whether firing had ceased as soon as the situation allowed. 203. The Court takes the view that a proper assessment in the sense outlined above would have required the Military Chamber of the Arnhem Court of Appeal to have access to the official record of the questioning of the ICDC members by Royal Military Constabulary officers (see paragraph 38 above). As it is, the absence of that document from the Court of Appeal ’ s file seriously impaired the effectiveness of its examination of the case. ii. The questioning of Mr Dawoud Joad Kathim 204. The applicant submitted that the brevity of the statement made by the driver of the car, Mr Dawoud Joad Kathim, as taken down by a Royal Military Constabulary investigator (see paragraph 23 above), also reflected on the quality of the investigation. He also pointed to the differences between this statement and the statement which Mr Dawoud Joad Kathim made later the same day to an Iraqi official (see paragraph 37 above). In the Government ’ s view, in contrast, any differences between the two statements were insufficient to cast doubt on the effectiveness of the investigation. 205. The Court considers that no conclusion can be drawn from the brevity of Mr Dawoud Joad Kathim ’ s first statement, as such. The discrepancies between the first and second statements may justify doubts as to the reliability of either statement, as recorded, but the Court cannot conclude on that ground alone that the investigation was inadequate. iii. The delay in questioning Lieutenant A. 206. The applicant drew the Court ’ s attention to the delay in questioning Lieutenant A. after the incident, during which he was not kept separate from other witnesses to the incident. The Government submitted that Lieutenant A. did nothing to interfere with the investigation. 207. Lieutenant A. was only questioned after Royal Military Constabulary personnel had been on the scene for over six hours (see paragraph 28 above). Although, as the Government correctly point out, there is no suggestion of foul play on his part (or that of any Netherlands soldier), such a lapse of time would have allowed him sufficient opportunity to collude with others to distort the truth had he been minded to do so. No precautions seem to have been taken to prevent this from happening. 208. As in Ramsahai, cited above, the Court finds the mere fact that appropriate steps were not taken to reduce the risk of such collusion to amount to a shortcoming in the adequacy of the investigation ( loc. cit., § 330). iv. The list of ICDC personnel who had fired their weapons 209. The applicant submitted that Lieutenant A. apparently obtained from the ICDC deputy commander a list of the names of ICDC personnel who had fired their weapons, and the corresponding number of rounds fired (see paragraph 31 above). 210. The fact that Lieutenant A. was able to obtain this list does not in itself raise any issue. Until the company commander arrived he was the highest-ranking Coalition officer on the spot and moreover responsible not only for the Netherlands patrol but also for the ICDC personnel present. It follows that it was Lieutenant A. ’ s duty to take measures aimed at facilitating the investigation. 211. However, this list, once it was available, ought to have been added to the file. The information which it contained might have proved useful, especially in comparison with the statements taken from the ICDC members themselves. The Court finds that the investigation was inadequate on this point. v. The autopsy 212. The applicant complained about the conditions under which the autopsy had taken place and about the resulting report. The Government argued that the autopsy had been as effective as it could have been in the circumstances. 213. The Court notes that the autopsy seems to have been carried out in the absence of any qualified Netherlands official. Nothing is known of the qualifications of the Iraqi pathologist who performed it. 214. Moreover, the pathologist ’ s report had serious shortcomings; extremely brief, it was lacking in detail and there were not even any pictures included. 215. More generally, it does not appear that any alternative arrangement was considered for the autopsy. For example, it does not appear unlikely that either or both of the Occupying Powers, or perhaps another Coalition power, had facilities and qualified personnel available. 216. The Court finds therefore that the investigation was deficient on this point also. vi. The bullet fragments 217. The applicant criticised the absence of a detailed report on any examination of the bullet fragments. In the Government ’ s view, the investigation was nonetheless adequate. 218. The Court notes that fragments of metal identified as bullet fragments were taken from the body of Mr Azhar Sabah Jaloud. The Netherlands investigators seem to have lost all trace of them since that point (see paragraph 36 above). 219. Whether or not the bullet fragments were capable of yielding useful information, the Court finds it unacceptable that they were not stored and examined in proper conditions, in the Netherlands if need be. 220. For this reason too the investigation was inadequate. e. The alleged failure to involve the applicant in the investigation 221. The applicant claimed that no effort was made to contact the next-of-kin of the deceased. 222. The Government alleged that Netherlands Royal Military Constabulary investigators spoke to the applicant and other next-of-kin at the time of the autopsy, but left when it appeared that the family were preparing to take them hostage. 223. The applicant disputed the Government ’ s account, which, since no pertinent written record has been submitted, cannot be verified. 224. Whatever the truth of either version of events, the Court finds it established that the applicant was, at his request, granted access to the investigation file; he was in fact in a position to submit it to the Court. Access to the file was also sufficient to enable him to bring proceedings under Article 12 of the Code of Criminal Procedure, in the course of which he was in a position to put up a very effective challenge to the decision not to prosecute Lieutenant A. 225. The Court therefore finds no indication that the proceedings were deficient on this point (see Ramsahai, cited above, §§ 349-350). f. Conclusion 226. The Court is prepared to make reasonable allowances for the relatively difficult conditions under which the Netherlands military and investigators had to work. In particular, it must be recognised that they were engaged in a foreign country which had yet to be rebuilt in the aftermath of hostilities, whose language and culture were alien to them, and whose population – witness the first shooting incident on 21 April 2004 (see paragraph 10 above) – clearly included armed hostile elements. 227. Even so, the Court must conclude that the investigation into the circumstances surrounding Mr Azhar Sabah Jaloud ’ s death failed, for the following reasons, to meet the standards required by Article 2 of the Convention: firstly, documents containing important information were not made available to the judicial authorities and the applicant (the official record of statements taken from the ICDC personnel and the list, compiled by Lieutenant A., recording which ICDC members had fired their weapons and the number of rounds fired by each); secondly, in that no precautions were taken to prevent Lieutenant A. from colluding, before he was questioned, with other witnesses to the events; thirdly, in that no attempt was made to carry out the autopsy under conditions befitting an investigation into the possible criminal responsibility of an agent of the State, and in that the resulting report was inadequate; and fourthly, in that important material evidence – the bullet fragments taken from the body – was mislaid in unknown circumstances. It cannot be found that these failings were inevitable, even in the particularly difficult conditions prevailing in Iraq at the relevant time. 228. The above failings lead the Court to find that there has been a failure to meet the procedural obligations flowing from Article 2 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 229. Article 41 of the Convention provides as follows: “ If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party. ” 230. The applicant submitted claims in respect of non-pecuniary damage and costs and expenses. 231. The intervening Government did not comment on the applicant ’ s just-satisfaction claims. A. Damage 232. The applicant asked the Court to order the Government to “ remedy the violations of Article 2 which [had] occurred by, to the extent possible, performing another, thorough investigation into the death of [his] son, to prosecute those involved, and to keep the applicant fully informed of both the investigation and the prosecution, if applicable ”. He also claimed 25,000 euros (EUR) in respect of non-pecuniary damage. 233. The respondent Government considered an order such as that sought by the applicant inappropriate. They left the award of monetary compensation to the Court ’ s discretion, while pointing out that the awards made in Al-Skeini had been lower. 234. As regards the applicant ’ s request to order an effective investigation followed by a prosecution, the Court reiterates the general principle that the respondent State remains free to choose the means by which it will discharge its legal obligation under Article 46 of the Convention, provided that such means are compatible with the conclusions set out in the Court ’ s judgment, and that it is only in exceptional circumstances that the Court will indicate what steps should be taken ( see, for example, Assanidze v. Georgia [GC], no. 71503/01, §§ 202-203, ECHR 2004 ‑ II, and Hutten-Czapska v. Poland [GC], no. 35014/97, §§ 238 ‑ 239, ECHR 2006 ‑ VIII ). Consequently it considers that it falls to the Committee of Ministers of the Council of Europe acting under Article 46 of the Convention to address the issues as to what, if anything, may be required in practical terms by way of compliance (see, among many other references, Al-Skeini, § 181 ). 235. As regards the monetary claims, the Court points out that in Al ‑ Skeini, which also concerned a violation of the procedural head of Article 2, it awarded the applicants the sums which they claimed ( ibid., § 182). In the present case, the Court considers it equitable to award to the applicant the sum which he claims, namely EUR 25,000. B. Costs and expenses 236. The applicant claimed a total of EUR 13,200 for 120 hours of work by his lawyers. He stated, however, that he had requested domestic legal aid and would not maintain his claim if this were granted. 237. The applicant submitted a further statement of travel and subsistence expenses, incurred by his two counsel to enable them to attend the hearing, and for postage. The total of these sums, for which vouchers were submitted, came to EUR 1,372.06. 238. The respondent Government submitted that no issue could arise in so far as the sums claimed were covered by domestic legal aid and declined to comment on the additional sum. 239. The applicant has not informed the Court that domestic legal aid has been refused in respect of the sum referred to in paragraph 236 above. It cannot therefore be established that it concerns expenses “ actually incurred ”. That being so, no corresponding award can be made. 240. The Court accepts the additional claim set out in paragraph 237 above in full. C. Default interest 241. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court established that the complaint about the investigation into the incident – which had occurred in an area under the command of an officer of the armed forces of the United Kingdom – fell within the jurisdiction of the Netherlands within the meaning of Article 1 (obligation to respect human rights) of the Convention. It noted in particular that the Netherlands had retained full command over its military personnel in Iraq. The Court further held that there had been a violation of Article 2 (right to life) of the Convention under its procedural limb, as regards the failure of the Netherlands authorities to carry out an effective investigation into the death of the applicant’s son. The Court came to the conclusion that the investigation had been characterised by serious shortcomings, which had made it ineffective. In particular, records of key witness statements had not been submitted to the judicial authorities; no precautions against collusion had been taken before questioning the Netherlands Army officer who had fired at the car carrying the victim; and the autopsy of the victim’s body had been inadequate. The Court recognised that the Netherlands military and investigators, being engaged in a foreign country in the aftermath of hostilities, had worked in difficult conditions. Nevertheless, the shortcomings in the investigation, which had seriously impaired its effectiveness, could not be considered inevitable, even in those conditions. |
823 | Right to vote (Article 3 of Protocol No. 1) | II. RELEVANT DOMESTIC LAW AND THE INTERNATIONAL LEGAL INSTRUMENTS CONSIDERED 11. Article 70(5 ) of the Hungarian Constitution provides inter alia that persons placed under total or partial guardianship do not have a right to vote. 12. The Civil Code provides : Section 1 “(1) This Act regulates the pecuniary and certain personal relations of citizens ... ” Section 14 “ (4) Persons of legal age may be placed under partial guardianship by a court if their faculties necessary to conduct their affairs are – owing to their mental state, unsound mind or pathological addiction – permanently or recurrently diminished to a great extent in general or in relation to certain groups of matters. (5) If the limitation of discretionary ability is only partial, the person under guardianship may make valid legal statements independently in all matters in relation to which the court did not limit his/her capacity in its decision. (6) The court may limit the full capacity of a person placed under guardianship in particular in respect of the following groups of matters: iii. making certain legal statements in family law matters, namely: a) legal statements concerning matrimonial property rights or property rights related to a registered partnership, b) making statements in relation to the establishment of parentage, c) defining the name of one's child and its alteration, d) giving consent to the adoption of one's child; THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF PROTOCOL NO. 1 TO THE CONVENTION 18. The applicant complained that the disenfranchisement, imposed on him because he was under partial guardianship for manic depression, constituted an unjustified deprivation of his right to vote, which was not susceptible to any remedy since it was prescribed by the Constitution, and which was discriminatory in nature. He relied on Article 3 of Protocol No. 1, read alone or in conjunction with Articles 13 and 14 of the Convention. 19. The Government contested those arguments. 20. The Court considers that the application falls to be examined under Article 3 of Protocol No. 1 (see, mutatis mutandis, Hirst v. the United Kingdom (no. 2), no. 74025/01, § § 53 and 54, 30 March 2004 ) which provides as relevant: “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. Admissibility 21. The Government submitted that the application should be rejected for non-exhaustion of domestic remedies, since the applicant had not appealed against his placement under guardianship (see paragraph 7 above). 22. The applicant submitted that he had accepted the necessity of his placement under partial guardianship in view of his mental ailment; therefore, he had not appealed against the District Court's decision. The purpose of the present application was solely to challenge the fact that as a person placed under guardianship he had automatically lost his right to vote. To challenging his guardianship was not an effective remedy to this problem; guardianship proceedings are not concerned as such with one's right to vote. Only a full restoration of the applicant's legal capacity would restore his right to vote, which however was neither possible (since he suffers from a mental disability) nor desirable (since he would lose the legal protection provided by guardianship ). 23. The Court notes that the applicant accepted the necessity of his placement under partial guardianship and that, therefore, he did not appeal against it. It observes that the subject matter of the application is not the guardianship measure, but its automatic consequence prescribed in the Constitution (see paragraph 11 above), namely the applicant's disenfranchisement. The Government have not pointed to any remedy capable of redressing this latter issue. It follows that the application cannot be rejected for non-exhaustion of domestic remedies. Moreover, it 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 parties'submissions a. The Government 24. The Government submitted that the rights under Article 3 of Protocol No. 1 are not absolute and might be restricted under certain conditions. The Contracting States might specify the conditions of active and passive suffrage in their domestic law and enjoyed a wide margin of appreciation in this respect, although those conditions must not restrict the rights in question to such an extent that their very substance was affected. The grounds for exclusion from the right to vote ( Article 70(5) of the Constitution, see paragraph 11 above ) had been incorporated into the Constitution by Act no. 31 of 1989. According to the reasoning of the Act, its purpose had been to regulate the basic rights and obligations in the spirit of international human rights instruments, including the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. 25. In identifying those eligible to vote, the general practice was to set a minimum age requirement, normally that of majority, whereby States automatically excluded from the right to vote all underage citizens (although assessed individually, several minors could be found mature enough to participate in public affairs ). The objective was to ensure that only citizens capable of assessing the consequences of their decisions, capable of making conscious and judicious decisions and vested with other rights linked to the age of majority, should participate in public affairs. 26. The exclusion from the right to vote of persons under guardianship pursued the same legitimate aim. These persons, although adults, lacked the capacity to manage their affairs, including the exercise of their right to vote, owing to their mental state, unsound mind or pathological addiction. When assessing whether to place the applicant under guardianship, the District Court factored into its decision the applicant's resultant exclusion from the right to vote, pursuant to the constitutional rule disenfranchising those citizens who were incapable of assessing the consequences of their decisions or of making conscious or judicious decisions. 27. Furthermore, in the Government's view, the prohibition complained of was in compliance with the Venice Commission's Opinion no. 190/2002 (see paragraph 16 above) and cannot therefore be considered disproportionate, all the more so since the applicant's right to vote would be statutorily restored if his placement under guardianship was rescinded at one of the periodical judicial reviews of his condition, or if a motion of the applicant to the same end succeeded in view of his improved mental status. b. The applicant 28. The applicant accepted in principle that the restriction in question pursued a legitimate aim, as suggested by the Government ( see paragraphs 25 and 26 above), without subscribing to the view that people under guardianship in general could not make the responsible choices required for participation in elections. However, he argued that States should enjoy a narrow margin of appreciation in the matter, essentially because any exclusion of people with disabilities from public life must be subject to scrutiny as to whether it was compatible with relevant international human rights requirements, particularly where there had been no substantive debate at the domestic level on the appropriateness of the measure. He added that, with regard to the voting rights of people with disabilities, the historical or political specifics of particular electoral systems played no role. 29. The applicant also submitted that the restriction in question affected 0.75% of the Hungarian population of voting age, which was a substantial group. In reply to the Government's argument in paragraph 25 above, he emphasised that there were important distinctions between minors and people with disabilities, the most significant being that, while an individual assessment of the maturity of all minors would be an unreasonable burden on the authorities, the same could not be said about the fitness to vote of adults under guardianship, whose status was in any event determined in individual judicial proceedings. 30. He further argued that the judicial decision resulting in his placement under guardianship had not been preceded by any particular scrutiny establishing a connection between his mental ailment and his capacity to vote. In his view, there was indeed no such connection, since his condition in no way impeded his capacity to orient himself in political matters. The absence of such scrutiny could be explained by the fact that, in any event, the District Court had no discretion in this regard, the restriction being directly prescribed by the Constitution. This was different from the legislation of several Member States of the Council of Europe including Germany, Austria, Switzerland, France, Italy, Sweden and Spain, where persons under partial guardianship could vote. 31. As regards international law, the applicant submitted, in reply to the Government's argument in paragraph 27 above, that Opinion no. 190/2002 was in fact silent on the issue of whether persons under guardianship could be excluded from the right to vote, but this silence could not be interpreted as permitting a blanket and automatic prohibition on all persons under guardianship. He drew attention to Principle 3.2 of Recommendation R(99)4 (see paragraph 15 above) and Articles 12 and 29 of the CRPD (see paragraph 14 above). 32. The applicant further rejected as outdated the Government's approach according to which all persons with intellectual and psycho-social disability, placed under guardianship, were incapable of independent decision-making. In his view, modern legislation accepted that the decision-making capacity of people with intellectual or mental disabilities should be recognised as much as possible, especially in the field of the right to vote. This approach was reflected in trends in international law, such as the CRPD (see paragraph 14 above). If one were to accept that a blanket and automatic prohibition on the right to vote of people under guardianship was justified because they were, based on their legal status, unable to make conscious and judicious decisions and were unfit to vote, then a large class of citizens would be deprived of the protection provided by Article 3 of Protocol No. 1, without due consideration given to their individual circumstances. This was incompatible with the Court's case-law on the matter (see Hirst v. the United Kingdom (no. 2 ) [GC], no. 74025/01, ECHR 2005 ‑ IX ). 33. Lastly, the applicant submitted that the impugned restriction could be replaced by a less restrictive alternative, such as allowing the courts to address this particular issue in guardianship proceedings or establishing a separate procedure with a view to assessing the fitness to vote of a person under guardianship. c. The third party 34. The intervener emphasised that the prohibition in question was not only at variance with Recommendation R(2006)5 (see paragraph 17 above), but was also not in compliance with Articles 12 and 29 of the CRPD (see paragraph 14 above), which was the first legally binding instrument in international law guaranteeing the comprehensive protection of the rights of persons with disabilities. This convention, signed by the European Community on 30 March 2007, represented the practice of European States which should be considered when interpreting Article 3 of Protocol No. 1. d. The applicant's comments on the third-party intervention 35. The applicant agreed with the intervener that the rights under the Convention of those with disabilities should be interpreted in the light of the CRPD (see paragraph 14 above). He considered himself mentally disabled and, as such, should benefit from the protection afforded by the CRPD. The restriction imposed on him is incompatible with the CRPD's spirit and text, in particular its Articles 12 and 29. 2. The Court's assessment a. General principles 36. The Court refers to its case-law in the matter, as outlined in the judgment of Hirst v. the United Kingdom (no. 2) [GC], (op.cit.): “57. [T]he Court has established that [Article 3 of Protocol No. 1] guarantees individual rights, including the right to vote and to stand for election (see Mathieu-Mohin and Clerfayt v. Belgium, judgment of 2 March 1987, Series A no. 113, pp. 22-23, §§ 46-51). ... 58. The ... rights guaranteed under Article 3 of Protocol No. 1 are crucial to establishing and maintaining the foundations of an effective and meaningful democracy governed by the rule of law ... 59. ... [T]he right to vote is not a privilege. In the twenty-first century, the presumption in a democratic State must be in favour of inclusion. ... Universal suffrage has become the basic principle (see Mathieu-Mohin and Clerfayt, cited above, p. 23, § 51, citing X v. Germany, no. 2728/66, Commission decision of 6 October 1967, Collection 25, pp. 38-41). 60. Nonetheless, the rights bestowed by Article 3 of Protocol No. 1 are not absolute. There is room for implied limitations and Contracting States must be allowed a margin of appreciation in this sphere. 61. ... The Court reaffirms that the margin in this area is wide (see Mathieu-Mohin and Clerfayt, cited above, p. 23, § 52, and, more recently, Matthews v. the United Kingdom [GC], no. 24833/94, § 63, ECHR 1999-I; see also Labita v. Italy [GC], no. 26772/95, § 201, ECHR 2000-IV, and Podkolzina v. Latvia, no. 46726/99, § 33, ECHR 2002-II). ... 62. It is, however, 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 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 (see Mathieu-Mohin and Clerfayt, p. 23, § 52). In particular, any conditions imposed must not thwart the free expression of the people in the choice of the legislature – in other words, they must reflect, or not run counter to, the concern to maintain the integrity and effectiveness of an electoral procedure aimed at identifying the will of the people through universal suffrage. For example, the imposition of a minimum age may be envisaged with a view to ensuring the maturity of those participating in the electoral process or, in some circumstances, eligibility may be geared to criteria, such as residence, to identify those with sufficiently continuous or close links to, or a stake in, the country concerned (see Hilbe v. Liechtenstein (dec.), no. 31981/96, ECHR 1999-VI, and Melnychenko v. Ukraine, no. 17707/02, § 56, ECHR 2004-X). Any departure from the principle of universal suffrage risks undermining the democratic validity of the legislature thus elected and the laws it promulgates. Exclusion of any groups or categories of the general population must accordingly be reconcilable with the underlying purposes of Article 3 of Protocol No. 1 (see, mutatis mutandis, Aziz v. Cyprus, no. 69949/01, § 28, ECHR 2004-V).” b. Application of those principles to the present case 37. The Court will therefore determine whether the measure in question pursued a legitimate aim in a proportionate manner having regard to the principles identified above. (i) Legitimate aim 38. The Court points out that Article 3 of Protocol No. 1 does not, like other provisions of the Convention, specify or limit the aims which a restriction must pursue and that a wide range of purposes may therefore be compatible with Article 3. The Government submitted that the measure complained of pursued the legitimate aim of ensuring that only citizens capable of assessing the consequences of their decisions and making conscious and judicious decisions should participate in public affairs (see paragraphs 25 and 26 above). The applicant accepted this view (see paragraph 28 above) and the Court sees no reason to hold otherwise. It is therefore satisfied that the measure pursued a legitimate aim. (ii) Proportionality 39. The Court notes that the restriction in question does not distinguish between those under total and those under partial guardianship (see paragraph 11 above), and is removed once guardianship is terminated (see the Government's submission in paragraph 27 above, not disputed by the applicant). However, it observes the applicant's assertion in paragraph 29 above, not refuted by the Government, that 0.75% of the Hungarian population of voting age is concerned by disenfranchisement on account of being under guardianship in a manner which is indiscriminate. It finds this to be a significant figure, and it cannot be claimed that the bar is negligible in its effects. 40. The Government argued, relying on the margin of appreciation, that it must be permissible for the legislature to establish rules ensuring that only those who are capable of assessing the consequences of their decisions and making conscious and judicious decisions should participate in public affairs. 41. The Court accepts that this is an area in which, generally, a wide margin of appreciation should be granted to the national legislature in determining whether restrictions on the right to vote can be justified in modern times and, if so, how a fair balance is to be struck. In particular, it should be for the legislature to decide as to what procedure should be tailored to assessing the fitness to vote of mentally disabled persons. The Court observes that there is no evidence that the Hungarian legislature has ever sought to weigh the competing interests or to assess the proportionality of the restriction as it stands. 42. The Court cannot accept, however, that an absolute bar on voting by any person under partial guardianship, irrespective of his or her actual faculties, falls within an acceptable margin of appreciation. Indeed, while the Court reiterates that this margin of appreciation is wide, it is not all-embracing ( Hirst v. the United Kingdom (no. 2) [GC], op. cit., § 82 ). In addition, if a restriction on fundamental rights applies to a particularly vulnerable group in society, who have suffered considerable discrimination in the past, such as the mentally disabled, then the State's margin of appreciation is substantially narrower and it must have very weighty reasons for the restrictions in question (cf. also the example of those suffering different treatment on the ground of their gender - Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 78, Series A no. 94, race - D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 182, ECHR 2007 ‑ ..., or sexual orientation - E.B. v. France [GC], no. 43546/02, § 94, ECHR 2008 ‑ ... ). 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 may entail legislative stereotyping which prohibits the individualised evaluation of their capacities and needs (cf. Shtukaturov v. Russia, no. 44009/05, § 95, 27 March 2008). 43. The applicant in the present case lost his right to vote as the result of the imposition of an automatic, blanket restriction on the franchise of those under partial guardianship. He may therefore claim to be a victim of the measure. The Court cannot speculate as to whether the applicant would still have been deprived of the right to vote even if a more limited restriction on the rights of the mentally disabled had been imposed in compliance with the requirements of Article 3 of Protocol No. 1 (see mutatis mutandis Hirst v. the United Kingdom (no. 2), op.cit, § § 48 to 52). 44. The Court further considers that the treatment as a single class of those with intellectual or mental disabilities is a questionable classification, and the curtailment of their rights must be subject to strict scrutiny. This approach is reflected in other instruments of international law, referred to above (paragraphs 14-17). The Court therefore concludes that an indiscriminate removal of voting rights, without an individualised judicial evaluation and solely based on a mental disability necessitating partial guardianship, cannot be considered compatible with the legitimate grounds for restricting the right to vote. There has accordingly been a violation of Article 3 of Protocol No. 1 to the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 45. 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 46. The applicant claimed 10,000 euros (EUR) in respect of non-pecuniary damage. 47. The Government contested this claim. 48. The Court considers that the applicant must have suffered some non-pecuniary damage and awards him, on an equitable basis, EUR 3,000 under this head. B. Costs and expenses 49. The applicant also claimed EUR 7,500 for the costs and expenses incurred before the domestic authorities and the Court. This sum corresponds to 75 hours of legal work, according to the time-sheet submitted, billable by his representative and charged at an hourly rate of EUR 100. 50. The Government contested this claim. 51. 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 covering costs under all heads. C. Default interest 52. 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 3 (right to free elections) of Protocol No. 1, finding that the indiscriminate removal of voting rights without an individualised judicial evaluation, solely on the grounds of mental disability necessitating partial guardianship, could not be considered compatible with the legitimate grounds for restricting the right to vote. The Court observed in particular that the State had to have very weighty reasons when applying restrictions on fundamental rights to particularly vulnerable groups in society, such as the mentally disabled, who were at risk of legislative stereotyping, without an individualised evaluation of their capacities and needs. The applicant had lost his right to vote as a result of the imposition of an automatic, blanket restriction. It was questionable to treat people with intellectual or mental disabilities as a single class and the curtailment of their rights had to be subject to strict scrutiny. |
70 | Filiation | II. RELEVANT DOMESTIC LAW 13. The relevant provisions of the Family Act ( Obiteljski zakon, Official Gazette nos. 116/2003, 17/2004, 136/2004 and 107/2007) read: Section 56 “(1) ... paternity may be recognised before a registrar of a registry office, a social welfare centre or a court ... ... ” Section 61 “(1) The child ’ s mother shall give consent to the registering of the recognition of paternity. ... ” Section 73 “A social welfare centre may lodge a civil claim seeking ... to establish paternity up until the child ’ s eighteenth birthday.” Section 1 59 “(1) An adult who, owing to mental illness or for other reasons, is not able to care for his or her own needs, rights and interests, or who presents a risk for the rights and interests of others, shall be partially or completely divested of his or her legal capacity by a court of law in non-contentious proceedings. (2) Before adopting a decision under paragraph 1 of this section, a court shall obtain the expert opinion of a medical expert about the health conditions of the person concerned ... ” Section 162 “ The competent social welfare centre shall place under guardianship any person ... divested of his or her legal capacity ... ” Section 179 “ (1) The guardian shall take care of the person, rights, obligations and well-being of the ward with due diligence, manage his or her assets and take measures to enable the ward to have an independent working and personal life. ... ” Section 184 “(1) The guardian represents the ward. ... ” Section 185 “In order to undertake more extensive measures concerning the person, personal status or health of the ward, the guardian shall obtain prior consent from a social welfare centre.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 14. The applicant complained that he had been denied the right to be registered as the father of his biological child. He relied on Article 8 of the Convention, the relevant part of which reads 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.” A. Admissibility 1. Applicability of Article 8 15. The Government argued that the applicant ’ s statement that he was the father of K. could not produce any legal consequences and that therefore there had been no violation of his right to respect for his private life. Consequently, Article 8 was not applicable to the facts of the present case. 16. The applicant contested that argument. 17. The Court must determine whether the right asserted by the applicant falls within the scope of the concept of “respect” for “private and family life” set forth in Article 8 of the Convention. 18. As regards the issue of paternity, the Court has held on numerous occasions that paternity proceedings do fall within the scope of Article 8 (see, for example, Rasmussen v. Denmark, 28 November 1984, § 33, Series A no. 87, and Keegan v. Ireland, 26 May 1994, § 45, Series A no. 290). In this connection, the Court has held that the notion of “family life” in Article 8 is not confined solely to marriage-based relationships but may also encompass other de facto “family ties” where sufficient constancy is present (see, for example, Kroon and Others v. the Netherlands, 27 October 1994, § 30, Series A no. 297 ‑ C). 19. The present case differs from the paternity cases cited above in so far as the applicant himself has not instituted any proceedings before the national courts to establish his paternity, but simply claims, with the consent of the child ’ s mother, that he is the biological father of the child K. 20. The Court has already held that the legal relationship between a child born out of wedlock and his or her natural father falls within the ambit of Article 8 of the Convention (see Mikulić v. Croatia, no. 53176/99, §§ 50 ‑ 55, ECHR 2002 ‑ I. ). There is no reason to hold otherwise in the present case. 21. The facts of the case accordingly fall within the ambit of Article 8. 2. Exhaustion of domestic remedies 22. The Government argued that the complaint under Article 8 of the Convention was premature because the proceedings concerning his paternity were still pending. 23. The applicant argued that these proceedings had been instituted only after the present application had been communicated to the respondent Government and that his legal position, irrespective of the proceedings the Government referred to, was incompatible with the requirements of Article 8 of the Convention. 24. The Court considers that the question of exhaustion of domestic remedies should be joined to the merits, since it is closely linked to the substance of the applicant ’ s complaint about the State ’ s alleged failure to ensure that his paternity was promptly recognised in law. 25. The Court further considers that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. Moreover, it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 26. The applicant argued that he had no possibility of having his paternity of K. established and that in that respect he was left in a legal void. The fact that a competent social welfare centre could institute court proceedings to establish his paternity was irrelevant since there was no obligation or time-limit for a centre to do so. Nor was his guardian obliged to take any action in that regard. He had repeatedly asked the Opatija Social Welfare Centre to take legal action in order to have his paternity of K. registered, but to no avail. A situation where his paternity had not been registered for more than two and a half years could not be in the interests of the child either. 27. The Government argued that the applicant had been divested of his legal capacity because it had been established that he could not care for his own interests and, therefore, placing the applicant under guardianship was in his best interests. A person divested of his legal capacity could not undertake any legal act and it was in the best interests of the applicant and K. that he could not give any legally binding statement concerning his paternity of K. His paternity could only be established in court proceedings by DNA analysis. Proceedings for establishing the applicant ’ s paternity before a regular court had been instituted and were still pending. Such proceedings could be instituted up until the child ’ s eighteenth birthday. 28. 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 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, 26 March 1985, § 23, Series A no. 91; Botta v. Italy, 24 February 1998, § 33, Reports of Judgments and Decisions 1998 ‑ I; and Mikulić, cited above, § 57 ). 29. However, 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 determining whether or not such an obligation exists, regard must be had to the fair balance which has to be struck between the general interest and the interests of the individual; and in both contexts the State enjoys a certain margin of appreciation (see Mikulić, cited above, § 58 ). Nevertheless, Article 8 does not give the Contracting States an unlimited power of appreciation. The Court is responsible for ensuring the observance of those States ’ engagements and is empowered to give the final ruling on whether a “restriction” is reconcilable with the guarantees of Article 8 of the Convention. The domestic margin of appreciation thus goes hand in hand with European supervision. 30. As regards the issues pertinent to the present case, the Court accepts that restrictions on the rights of persons divested of legal capacity, even when they occur in the sphere of their private and family life, are not in principle in contradiction with the requirements of Article 8 of the Convention. 31. However, these restrictions should, in principle, be subject to the relevant procedural safeguards. At this juncture the Court reiterates the fundamentally subsidiary role of the Convention. Under the system of protection established by the Convention it is thus for the national authorities to make the initial assessment both of the existence of a problem of public concern warranting measures of restriction of the personal rights and of the remedial action to be taken (see, mutatis mutandis, Handyside v. the United Kingdom, 7 December 1976, § 48, Series A no. 24, and James and Others v. the United Kingdom, 21 February 1986, § 46, Series A no. 98). In line with the same principle, it is also primarily for the national authorities to ensure by whatever means they deem appropriate compliance with their obligations under the Convention. This Court is concerned with the supervision of the implementation by Contracting States of their obligations under the Convention. 32. Thus, the Court ’ s task is not to substitute itself for the competent Croatian authorities in determining the most appropriate methods for establishing paternity through judicial proceedings in Croatia, but rather to review under the Convention the decisions that those authorities have taken in the exercise of their power of appreciation. The Court will therefore examine whether Croatia, in its handling of the issue of the applicant ’ s paternity of K., is in breach of its positive obligation under Article 8 of the Convention (see, for instance, Hokkanen v. Finland, 23 September 1994, § 55, Series A no. 299-A, and, mutatis mutandis, Handyside v. the United Kingdom, cited above, § 49 ). 33. The Court notes in the present case that under the relevant domestic law the applicant has no possibility of giving any statement as to his paternity of K. As a person divested of his legal capacity he is not allowed to institute any proceedings to have his paternity established. In that respect he is entirely dependent on the actions of the competent social welfare centre. 34. In the Court ’ s opinion, persons in the applicant ’ s situation have a vital interest, protected by the Convention, in establishing the biological truth about an important aspect of their private and family life and having it recognised in law. 35. As to the position of the applicant in this regard, the Court notes that there was no possibility for the applicant to recognise his paternity before the national authorities or to institute any proceedings in order to prove his paternity. While this position might be seen as justified in respect of persons who have been divested of their legal capacity in order to protect them from giving legally binding statements which run contrary to their interests or even contrary to the facts, the Court is mindful of the following. 36. In the present case both the applicant and the child ’ s mother agree that the applicant is K. ’ s biological father. 37. Soon after K. ’ s birth on 30 June 2007 the applicant gave a statement that he was the father of K. However, that statement could not have legal effect because the applicant had been divested of his legal capacity. The relevant authorities, however, did not invite the applicant ’ s father, who appears to have been his legal guardian at that time, to give his consent to the applicant ’ s recognition of his paternity. If J.L. had already been appointed as the applicant ’ s guardian at that time, it was her duty, as an employee of the Opatija Social Welfare Centre, to take care of the applicant ’ s interests. There is no doubt that the recognition and registration of his paternity of K. was of vital interest for the applicant. However, the competent social welfare centre at the time when K. was born and the applicant was making attempts to have his paternity registered took no steps to assist the applicant in his attempt to have his paternity recognised in law. 38. According to the Government, the only possible means for the applicant to have his paternity established is by the institution of civil proceedings to that end by the competent social welfare centre. In the proceedings instituted by the social welfare centre claiming that the applicant is the biological father of K, the applicant has the status only of defendant. The Court notes, however, that the applicant has never denied his paternity and that it is he who actually wants his paternity to be established. 39. Furthermore, while proceedings for establishing paternity may be instituted up until the child ’ s eighteenth birthday, there is no legal obligation under the national law on the relevant national authorities responsible for the applicant to institute such proceedings at all and consequently there are no time-limits for the competent authorities to answer the applicant ’ s claim that he is the biological father of K. Thus, the social welfare centres enjoy unlimited discretion as to when to take any action in order to ensure that the paternity of persons divested of legal capacity is properly established and registered, or whether to take any action at all. 40. As a consequence of the above-described legal position, the applicant was left in a legal void until the proceedings for establishing his paternity were instituted. Furthermore, he had no means to compel the Opatija Social Welfare Centre to institute such proceedings. Thus, more than two and a half years passed between the time when the applicant gave his statement that he was the biological father of K. and the institution of the court proceedings in the matter by the Opatija Social Welfare Centre. 41. Contrary to the Government ’ s arguments, the Court cannot accept that this situation is in the best interests of either the applicant or the child. In this connection, the Court reiterates that a child born out of wedlock also has a vital interest in receiving the information necessary to uncover the truth about an important aspect of their personal identity, that is, the identity of their biological parents (see Mikulić, cited above, § 64). 42. Against the above background, the Court considers that a fair balance has not been struck between the public interest in protecting persons divested of their legal capacity from giving statements to the detriment of themselves or others, and the interest of the applicant in having his paternity of K. legally recognised. 43. Having regard to the Government ’ s objection that was joined to the merits of the complaint, the Court notes that the relevant national authorities instituted the court proceedings for the establishment of the applicant ’ s paternity only more than two and half years after the applicant had requested them to do so, thus allowing a situation to arise in which the claim by the applicant and the child ’ s mother that the applicant was the biological father of K. was ignored for no apparent reason. 44. In these circumstances, the Court finds that the respondent State has failed to discharge its positive obligation to guarantee the applicant ’ s right to respect for his private and family life. Accordingly, the Court finds that there has been a violation of Article 8 of the Convention and dismisses the Government ’ s objections as to the exhaustion of domestic remedies. II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 45. The applicant further complained under Articles 2 and 14 of the Convention that he had no means of subsistence and that he had been discriminated against. 46. 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 (a) as manifestly ill-founded and must be rejected pursuant to Article 35 § 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 47. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 48. The applicant claimed 1,200 euros (EUR) per month in respect of maintenance for himself and his child and EUR 300,000 in respect of non-pecuniary damage. He also sought the immediate registration of his paternity of K. in the birth register. 49. The Government argued that the amounts claimed for maintenance were not related to the present application and that the claim for non-pecuniary damage was excessive and unfounded. 50. The Court notes that in the present case a violation of Article 8 has been found solely on account of the applicant ’ s position as regards the recognition of his paternity of K. in law. Therefore, there is no causal link between the violation found and the claim for monthly maintenance. 51. On the other hand, the Court considers that the applicant must have suffered some non-pecuniary damage owing to the fact that his paternity has not been recognised. Making its assessment on an equitable basis, the Court awards the applicant EUR 1,800 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount. B. Costs and expenses 52. The applicant also claimed EUR 100 for postal expenses incurred before the Court. 53. The Government made no comment. 54. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers that the sum claimed should be awarded in full, plus any tax that may be chargeable on that amount. C. Default interest 55. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention, finding that, by ignoring the applicant’s claims that he was the biological father of the child, the Croatian State had failed to discharge its positive obligation to guarantee his right to respect for private and family life. It observed in particular that in the two and a half years between the moment when the applicant had made his statement to the registry and the launching of the proceedings before the national courts to establish paternity, he had been left in a legal void; his claim had been ignored for no apparent reason. The Court could not accept that this was in the best interests of either the father, who had a vital interest in establishing the biological truth about an important aspect of his private life, or of the child to be informed about her personal identity. |
794 | Right to liberty and security (Article 5 of the Convention) | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Legal status of persons placed under partial guardianship and their representation before the courts 42. Section 5 of the Persons and Family Act of 9 August 1949 provides that persons who are unable to look after their own interests on account of mental illness or mental deficiency must be entirely deprived of legal capacity and declared legally incapable. Adults with milder forms of such disorders are to be partially incapacitated. Persons who are entirely deprived of legal capacity are placed under full guardianship ( настойничество ), whereas those who are partially incapacitated are placed under partial guardianship ( попечителство – literally “trusteeship”). In accordance with sections 4 and 5 of the Act, persons under partial guardianship may not perform legal transactions without their guardian’s consent. They may, however, carry out ordinary acts forming part of everyday life and have access to the resources obtained in consideration for their work. Accordingly, the guardian of a partially incapacitated person cannot independently perform legal transactions that are binding on that person. This means that contracts signed only by the guardian, without the consent of the person partially lacking legal capacity, are invalid. 43. Under Article 16 § 2 of the Code of Civil Procedure (“the CCP”), persons under full guardianship are represented before the courts by their guardian. Persons under partial guardianship, however, are entitled to take part in court proceedings, but require their guardian’s consent. Accordingly, the guardian of a partially incapacitated person does not perform the role of a legal representative. The guardian cannot act on behalf of the person under partial guardianship, but may express agreement or disagreement with the person’s individual transactions (Сталев, Ж., Българско гражданско процесуално право, София, 2006 г., стр. 171). In particular, a person under partial guardianship may instruct a lawyer provided that the form of authority is signed by the guardian (ibid., стр. 173). B. Procedure for placement under partial guardianship 44. There are two stages to the procedure for placing a person under partial guardianship: the declaration of partial incapacity and the appointment of a guardian. 1. Declaration of partial incapacity by the courts 45. The first stage involves a judicial procedure which at the material time was governed by Articles 275 to 277 of the 1952 CCP, which have been reproduced unchanged in Articles 336 to 340 of the new 2007 CCP. A declaration of partial incapacity may be sought by the person’s spouse or close relatives, by the public prosecutor or by any other interested party. The court reaches its decision after examining the person concerned at a public hearing – or, failing that, after forming a first-hand impression of the person’s condition – and interviewing the person’s close relatives. If the statements thus obtained are insufficient, the court may have recourse to other evidence, such as an expert medical assessment. According to domestic case-law, an assessment must be ordered where the court is unable to conclude from any other information in the file that the request for deprivation of legal capacity is unfounded (Решение на ВС № 1538 от 21.VIII.1961 г. по гр. д. № 5408/61 г.; Решение на ВС № 593 от 4.III.1967 г. по гр. д. № 3218/1966 г.). 2. Appointment of a guardian by the administrative authorities 46. The second stage involves an administrative procedure for the appointment of a guardian, which at the material time was governed by Chapter X (Articles 109 to 128) of the 1985 FC; these provisions have been reproduced, with only minor amendments, in Articles 153 to 174 of the new 2009 FC. The administrative stage is conducted by an authority referred to as “the guardianship authority”, namely the mayor or any other municipal council officer designated by him or her. 47. The guardian should preferably be appointed from among the relatives of the person concerned who are best able to defend his or her interests. C. Review of measures taken by the guardian and possibility of replacement 48. Measures taken by the guardian are subject to review by the guardianship authority. At the authority’s request, the guardian must report on his or her activities. If any irregularities are observed, the authority may request that they be rectified or may order the suspension of the measures in question (see Articles 126 § 2 and 125 of the 1985 FC, and Articles 170 and 171 §§ 2 and 3, of the 2009 FC). It is unclear from domestic law whether persons under partial guardianship may apply to the mayor individually or through another party to suspend measures taken by the guardian. 49. Decisions by the mayor, as the guardianship authority, and any refusal by the mayor to appoint a guardian or to take other steps provided for in the FC are, for their part, amenable to judicial review. They may be challenged by interested parties or the public prosecutor before the district court, which gives a final decision on the merits (Article 115 of the 1985 FC). This procedure allows close relatives to request a change of guardian in the event of a conflict of interests (Решение на ВС № 1249 от 23.XII.1993 г. по гр. д. № 897/93 г.). According to domestic case-law, fully incapacitated persons are not among the “interested parties” entitled to initiate such proceedings (Определение № 5771 от 11.06.2003 г. на ВАС по адм. д. № 9248/2002). There is no domestic case-law showing that a partially incapacitated person is authorised to do so. 50. Furthermore, the guardianship authority may at any time replace a guardian who fails to discharge his or her duties (Article 113 of the 1985 FC). By Article 116 of the 1985 FC, a person cannot be appointed as a guardian where there is a conflict of interests between that person and the person under partial guardianship. Article 123 of the 1985 FC provides that a deputy guardian is to be appointed where the guardian is unable to discharge his or her duties or where there is a conflict of interests. In both cases, the guardianship authority may also appoint an ad hoc representative. D. Procedure for restoration of legal capacity 51. By virtue of Article 277 of the 1952 CCP, this procedure is similar to the partial-guardianship procedure. It is open to anyone entitled to apply for a person to be placed under partial guardianship, and also to the guardianship authority and the guardian. The above-mentioned provision has been reproduced in Article 340 of the 2007 CCP. On 13 February 1980 the Plenary Supreme Court delivered a decision (no. 5/79) aimed at clarifying certain questions concerning the procedure for deprivation of legal capacity. Paragraph 10 of the decision refers to the procedure for restoration of legal capacity and reads as follows: “The rules applicable in the procedure for restoration of legal capacity are the same as those governing the procedure for deprivation of capacity (Articles 277 and 275 §§ 1 and 2 of the CCP). The persons who requested the measure or the close relatives are treated as respondent parties in the procedure. There is nothing to prevent the party that applied for a person to be deprived of legal capacity from requesting the termination of the measure if circumstances have changed. Persons under partial guardianship may request, either individually or with the consent of their guardian, that the measure be lifted. They may also ask the guardianship authority or the guardianship council to bring an action under Article 277 of the CCP in the regional court which deprived them of legal capacity. In such cases, they must show that the application is in their interests by producing a medical certificate. In the context of such an action, they will be treated as the claimant. Where the guardian of a partially incapacitated person, the guardianship authority or the guardianship council (in the case of a fully incapacitated person) refuses to bring an action for restoration of legal capacity, the incapacitated person may ask the public prosecutor to do so (Постановление № 5/79 от 13.II.1980 г., Пленум на ВС).” 52. In addition, the Government cited a case in which proceedings for the review of the legal status of a person entirely deprived of legal capacity had been instituted at the guardian’s request and the person had been released from guardianship (Решение № 1301 от 12.11.2008 г. на ВКС по гр. Д. № 5560/2007 г., V г.о.). E. Validity of contracts signed by representatives of incapacitated persons 53. Section 26(2) of the Obligations and Contracts Act 1950 provides that contracts that are in breach of the law or have been entered into in the absence of consent are deemed null and void. 54. In accordance with section 27 of the same Act, contracts entered into by representatives of persons deprived of legal capacity in breach of the applicable rules are deemed voidable. A ground of incurable nullity may be raised on any occasion, whereas a ground of voidability may be raised only by means of a court action. The right to raise a ground of voidability becomes time-barred after a period of three years from the date of release from partial guardianship if a guardian is not appointed. In other cases, the period in question begins to run from the date on which a guardian is appointed (section 32(2), in conjunction with section 115(1)(e), of the above-mentioned Act; see also Решение на ВС № 668 от 14.III.1963 г. по гр. д. № 250/63 г., I г. о., Решение на Окръжен съд – Стара Загора от 2.2.2010 г. по т. д. № 381/2009 г. на I състав, Решение на Районен съд Стара Загора № 459 от 19.5.2009 г. по гр. д. № 1087/2008). F. Place of residence of legally incapacitated persons 55. By virtue of Articles 120 and 122 § 3 of the 1985 FC, persons deprived of legal capacity are deemed to reside at the home address of their guardian unless “exceptional reasons” require them to live elsewhere. Where the place of residence is changed without the guardian’s consent, the guardian may request the district court to order the person’s return to the official address. By Article 163 §§ 2 and 3 of the 2009 FC, before reaching a decision in such cases, the court is required to interview the person under guardianship. If it finds that there are “exceptional reasons”, it must refuse to order the person’s return and must immediately inform the municipal social assistance department so that protective measures can be taken. 56. The district court’s order may be appealed against to the president of the regional court, although its execution cannot be stayed. G. Placement of legally incapacitated persons in social care homes for adults with mental disorders 57. Under the Social Assistance Act 1998, social assistance is available to people who, for medical and social reasons, are incapable of meeting their basic needs on their own through work, through their own assets or with the help of persons required by law to care for them (section 2 of the Act). Social assistance consists of the provision of various financial benefits, benefits in kind and social services, including placement in specialised institutions. Such benefits are granted on the basis of an individual assessment of the needs of the persons concerned and in accordance with their wishes and personal choices (section 16(2)). 58. By virtue of the implementing regulations for the Social Assistance Act 1998 ( Правилник за прилагане на Закона за социално подпомагане ), three categories of institutions are defined as “specialised institutions” for the provision of social services: (1) children’s homes (homes for children deprived of parental care, homes for children with physical disabilities, homes for children with a mental deficiency); (2) homes for adults with disabilities (homes for adults with a mental deficiency, homes for adults with mental disorders, homes for adults with physical disabilities, homes for adults with sensory disorders, homes for adults with dementia); and (3) old people’s homes (Regulation 36(3)). Social services are provided in specialised institutions where it is no longer possible to receive them in the community (Regulation 36(4)). Under domestic law, placement of a legally incapacitated person in a social care home is not regarded as a form of deprivation of liberty. 59. Similarly, in accordance with Decree no. 4 of 16 March 1999 on the conditions for obtaining social services ( Наредба № 4 за условията и реда за извършване на социални услуги ), adults with mental deficiencies are placed in specialised social care homes if it is impossible to provide them with the necessary medical care in a family environment (Articles 12, point (4), and 27 of the Decree). Article 33 § 1, point (3), of the Decree provides that when a person is placed in a social care home, a medical certificate concerning the person’s state of health must be produced. By Article 37 § 1 of the Decree, a placement agreement for the provision of social services is signed between the specialised institution and the person concerned or his or her legal representative, on the basis of a model approved by the Ministry of Labour and Social Policy. The person may be transferred to another home or may leave the institution in which he or she has been placed: (1) at his or her request or at the request of his or her legal representative, submitted in writing to the director of the institution; (2) if there is a change in the state of his or her mental and/or physical health such that it no longer corresponds to the profile of the home; (3) in the event of failure to pay the monthly social welfare contribution for more than one month; (4) in the event of systematic breaches of the institution’s internal rules; or (5) in the event of a confirmed addiction to narcotic substances. 60. Furthermore, the system governing admission to a psychiatric hospital for compulsory medical treatment is set out in the Health Act 2005, which replaced the Public Health Act 1973. H. Appointment of an ad hoc representative in the event of a conflict of interests 61. Article 16 § 6 of the CCP provides that, in the event of a conflict of interests between a person being represented and the representative, the court is to appoint an ad hoc representative. The Bulgarian courts have applied this provision in certain situations involving a conflict of interests between minors and their legal representative. Thus, the failure to appoint an ad hoc representative has been found to amount to a substantial breach of the rules governing paternity proceedings (Решение на ВС № 297 от 15.04.1987 г. по гр. д. № 168/87 г., II г. о.), disputes between adoptive and biological parents (Решение на ВС № 1381 от 10.05.1982 г. по гр. д. № 954/82 г., II г. о.) or property disputes (Решение № 643 от 27.07.2000 г. на ВКС по гр. д. № 27/2000 г., II г. о.; Определение на ОС – Велико Търново от 5.11.2008 г. по в. ч. гр. д. № 963/2008). III. RELEVANT INTERNATIONAL INSTRUMENTS A. Convention on the Rights of Persons with Disabilities, adopted by the United Nations General Assembly on 13 December 2006 (Resolution A/RES/61/106) 72. This convention came into force on 3 May 2008. It was signed by Bulgaria on 27 September 2007 but has yet to be ratified. The relevant parts of the Convention provide: 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. 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.” Article 14 Liberty and security of person “1. States Parties shall ensure that persons with disabilities, on an equal basis with others: (a) Enjoy the right to liberty and security of person; (b) Are not deprived of their liberty unlawfully or arbitrarily, and that any deprivation of liberty is in conformity with the law, and that the existence of a disability shall in no case justify a deprivation of liberty. 2. States Parties shall ensure that if persons with disabilities are deprived of their liberty through any process, they are, on an equal basis with others, entitled to guarantees in accordance with international human rights law and shall be treated in compliance with the objectives and principles of the present Convention, including by provision of reasonable accommodation.” B. Recommendation No. R (99) 4 of the Committee of Ministers of the Council of Europe on principles concerning the legal protection of incapable adults (adopted on 23 February 1999) 73. The relevant parts of this Recommendation 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 response 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 preservation 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 proportional 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.” C. Reports on visits to Bulgaria by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) 1. The CPT’s report on its visit from 16 to 22 December 2003, published on 24 June 2004 74. This report outlines the situation of persons placed by the public authorities in social care homes for people with mental disorders or mental deficiency, which are under the authority of the Ministry of Labour and Social Policy. Part II.4 of the report is devoted to the Pastra social care home. 75. The CPT noted that the home’s official capacity was 105; it had 92 registered male residents, of whom 86 were present at the time of the visit. Two residents had absconded and the others were on home leave. Some 90% of the residents were suffering from schizophrenia and the remainder had a mental deficiency. The majority had spent many years in the institution, discharges being quite uncommon. 76. According to the CPT’s findings, the premises of the Pastra social care home were in a deplorable state of repair and hygiene and the home was inadequately heated. 77. In particular, the buildings did not have running water. The residents washed in cold water in the yard and were often unshaven and dirty. The bathroom, to which they had access once a week, was rudimentary and dilapidated. 78. The toilets, likewise located in the yard, consisted of decrepit shelters with holes dug in the ground. They were in an execrable state and access to them was dangerous. Furthermore, basic toiletries were rarely available. 79. The report notes that the provision of food was inadequate. Residents received three meals a day, including 750 g of bread. Milk and eggs were never on offer, and fresh fruit and vegetables were rarely available. No provision was made for special diets. 80. The only form of treatment at the home consisted of the provision of medication. The residents, who were treated as chronic psychiatric patients in need of maintenance therapy, were registered as outpatients with a psychiatrist in Dupnitsa. The psychiatrist visited the home once every two to three months, and also on request. In addition, residents could be taken to the psychiatrist – who held weekly surgeries in the nearby town of Rila – if changes in their mental condition were observed. All residents underwent a psychiatric examination twice a year, which was an occasion for them to have their medication reviewed and, if necessary, adjusted. Nearly all residents received psychiatric medication, which was recorded on a special card and administered by the nurses. 81. Apart from the administration of medication, no therapeutic activities were organised for residents, who led passive, monotonous lives. 82. The CPT concluded that these conditions had created a situation which could be said to amount to inhuman and degrading treatment. It requested the Bulgarian authorities to replace the Pastra social care home as a matter of urgency. In their response of 13 February 2004, the Bulgarian authorities acknowledged that the home was not in conformity with European care standards. They stated that it would be closed as a priority and that the residents would be transferred to other institutions. 83. The CPT further observed, in part II.7 of its report, that in most cases placement of people with mental disabilities in a specialised institution led to a de facto deprivation of liberty. The placement procedure should therefore be accompanied by appropriate safeguards, among them an objective medical, and in particular psychiatric, assessment. It was also essential that these persons should have the right to bring proceedings by which the lawfulness of their placement could be decided speedily by a court. The CPT recommended that such a right be guaranteed in Bulgaria (see paragraph 52 of the report). 2. The CPT’s report on its visit from 10 to 21 September 2006, published on 28 February 2008 84. In this report the CPT again recommended that provision be made for the introduction of judicial review of the lawfulness of placement in a social care home (see paragraphs 176-77 of the report). 85. It also recommended that efforts be made to ensure that the placement of residents in homes for people with mental disorders and/or deficiency conformed fully to the letter and spirit of the law. Contracts for the provision of social services should specify the legal rights of residents, including the possibilities for lodging complaints with an outside authority. Furthermore, residents who were incapable of understanding the contracts should receive appropriate assistance (see paragraph 178 of the report). 86. Lastly, the CPT urged the Bulgarian authorities to take the necessary steps to avoid conflicts of interests arising from the appointment of an employee of a social care home as the guardian of a resident of the same institution (see paragraph 179 of the report). 87. The CPT made a further visit to the Pastra social care home during its periodic visit to Bulgaria in October 2010. IV. COMPARATIVE LAW A. Access to a court for restoration of legal capacity 88. A comparative study of the domestic law of twenty Council of Europe member States indicates that in the vast majority of cases (Croatia, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Luxembourg, Monaco, Poland, Portugal, Romania, Slovakia, Sweden, Switzerland and Turkey) the law entitles anyone who has been deprived of legal capacity to apply directly to the courts for discontinuation of the measure. 89. In Ukraine, people who have been partially deprived of legal capacity may themselves apply for the measure to be lifted; this does not apply to those who have been declared fully incapable, who may nevertheless challenge before a court any measures taken by their guardian. 90. Judicial proceedings for the discontinuation of an order depriving a person of legal capacity cannot be instituted directly by the person concerned in Latvia (where an application may be made by the public prosecutor or the guardianship council) or in Ireland. B. Placement of legally incapacitated persons in a specialised institution 91. A comparative-law study of the legislation of twenty States Parties to the Convention shows that there is no uniform approach in Europe to the question of placement of legally incapacitated persons in specialised institutions, particularly as regards the authority competent to order the placement and the guarantees afforded to the person concerned. It may nevertheless be observed that in some countries (Austria, Estonia, Finland, France, Germany, Greece, Poland, Portugal and Turkey) the decision to place a person in a home on a long-term basis against his or her will is taken directly or approved by a judge. 92. Other legal systems (Belgium, Denmark, Hungary, Ireland, Latvia, Luxembourg, Monaco and the United Kingdom) authorise the guardian, close relatives or the administrative authorities to decide on placement in a specialised institution without a judge’s approval being necessary. It also appears that in all the above-mentioned countries, the placement is subject to a number of substantive requirements, relating in particular to the person’s health, the existence of a danger or risk and/or the production of medical certificates. In addition, the obligation to interview or consult the person concerned on the subject of the placement, the setting of a time-limit by law or by the courts for the termination or review of the placement, and the possibility of legal assistance are among the safeguards provided in several national legal systems. 93. In certain countries (Denmark, Estonia, Germany, Greece, Hungary, Ireland, Latvia, Poland, Slovakia, Switzerland and Turkey) the possibility of challenging the initial placement order before a judicial body is available to the person concerned without requiring the guardian’s consent. 94. Lastly, several States (Denmark, Estonia, Finland, Germany, Greece, Ireland, Latvia, Poland, Switzerland and Turkey) directly empower the person concerned to apply periodically for judicial review of the lawfulness of the continued placement. 95. It should also be noted that many countries’ laws on legal capacity or placement in specialised institutions have recently been amended (Austria: 2007; Denmark: 2007; Estonia: 2005; Finland: 1999; France: 2007; Germany: 1992; Greece: 1992; Hungary: 2004; Latvia: 2006; Poland: 2007; Ukraine: 2000; United Kingdom: 2005) or are in the process of being amended (Ireland). These legislative reforms are designed to increase the legal protection of persons lacking legal capacity by affording them either the right of direct access to court for a review of their status, or additional safeguards when they are placed in specialised institutions against their will. THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 96. The applicant submitted that his placement in the Pastra social care home was in breach of Article 5 § 1 of the Convention. Article 5 § 1 provides: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court; (b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; (d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority; (e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.” A. Preliminary remarks 97. The Grand Chamber observes that the Government maintained before it the objection they raised before the Chamber, alleging failure to exhaust domestic remedies in respect of the complaint under Article 5 § 1. 98. The objection was based on the following arguments. Firstly, the applicant could at any time have applied personally to a court for restoration of his legal capacity, under Article 277 of the Code of Civil Procedure (“the CCP”), and release from guardianship would have allowed him to leave the home of his own accord. Secondly, his close relatives had not availed themselves of the possibility open to some of them, under Articles 113 and 115 of the Family Code (“the FC”), of asking the guardianship authority to replace his guardian. According to the Government, in the event of a refusal the applicants’ relatives could have applied to a court, which would have considered the merits of the request and, if appropriate, appointed a new guardian, who would then have been able to terminate the placement agreement. The Government also submitted in substance that the applicant’s close relatives could have challenged the contract signed between the guardian R.P. and the Pastra social care home. Lastly, they indicated that the applicant himself could have requested the guardianship authority to appoint an ad hoc representative on account of his alleged conflict of interests with his guardian, with a view to requesting to leave the institution and establish his home elsewhere (Article 123 § 1 of the FC). 99. The Grand Chamber observes that in its admissibility decision of 29 June 2010 the Chamber found that this objection raised questions that were closely linked to those arising in relation to the applicant’s complaint under Article 5 § 4 and therefore joined the objection to its examination of the merits under that provision. 100. In addition, finding that the question whether there had been a “deprivation of liberty” within the meaning of Article 5 § 1 in the present case was closely linked to the merits of the complaint under that provision, the Chamber likewise joined that issue to its examination of the merits. The Grand Chamber sees no reason to call into question the Chamber’s findings on these issues. B. Whether the applicant was deprived of his liberty within the meaning of Article 5 § 1 1. The parties’ submissions (a) The applicant 101. The applicant contended that, although under domestic law placement of people with mental disorders in a social care institution was regarded as “voluntary”, his transfer to the Pastra social care home constituted a deprivation of liberty. He maintained that, as in Storck v. Germany (no. 61603/00, ECHR 2005-V), the objective and subjective elements of detention were present in his case. 102. With regard to the nature of the measure, the applicant submitted that living in a social care home in a remote mountain location amounted to physical isolation from society. He could not have chosen to leave on his own initiative since, having no identity papers or money, he would soon have faced the risk of being stopped by the police for a routine check, a widespread practice in Bulgaria. 103. Absences from the social care home were subject to permission. The distance of approximately 420 km between the institution and his home town and the fact that he had no access to his invalidity pension had made it impossible for him to travel to Ruse more than three times. The applicant further submitted that he had been denied permission to travel on many other occasions by the home’s management. He added that, in accordance with a practice with no legal basis, residents who left the premises for longer than the authorised period were treated as fugitives and were searched for by the police. He stated in that connection that on one occasion the police had arrested him in Ruse and that, although they had not taken him back to the home, the fact that the Director had asked for him to be located and transferred back had amounted to a decisive restriction on his right to personal liberty. He stated that he had been arrested and detained by the police pending the arrival of staff from the home to collect him, without being informed of the grounds for depriving him of his liberty. Since he had been transferred back under duress, it was immaterial that those involved had been employees of the home. 104. The applicant further noted that his placement in the home had already lasted more than eight years and that his hopes of leaving one day were futile, as the decision had to be approved by his guardian. 105. As to the consequences of his placement, the applicant highlighted the severity of the regime to which he was subject. His occupational activities, treatment and movements had been subject to thorough and practical supervision by the home’s employees. He had been required to follow a strict daily routine, getting up, going to bed and eating at set times. He had had no free choice as to his clothing, the preparation of his meals, participation in cultural events or the development of relations with other people, including intimate relationships as the home’s residents were all men. He had been allowed to watch television in the morning only. Accordingly, his stay in the home had caused a perceptible deterioration in his well-being and the onset of institutionalisation syndrome, in other words the inability to reintegrate into the community and lead a normal life. 106. With regard to the subjective element, the applicant submitted that his situation differed from that examined in H.M. v. Switzerland (no. 39187/98, ECHR 2002-II), in which the applicant had consented to her placement in a nursing home. He himself had never given such consent. His guardian at the time, Ms R.P. (see paragraph 12 above), had not consulted him on the placement and, moreover, he did not even know her; nor had he been informed of the existence of the placement agreement of 10 December 2002 (see paragraph 14 above), which he had never signed. Those circumstances reflected a widespread practice in Bulgaria whereby once people were deprived of legal capacity, even partially, they were deemed incapable of expressing their wishes. In addition, it was clear from the medical documents that the applicant’s desire to leave the home had been interpreted not as a freely expressed wish, but rather as a symptom of his mental illness. 107. Lastly, in H.M. v. Switzerland (cited above) the authorities had based their decision to place the applicant in a nursing home on a thorough examination showing that the living conditions in her own home had severely deteriorated as a result of her lack of cooperation with a social welfare authority. By contrast, the applicant in the present case had never been offered and had never refused alternative social care at home. (b) The Government 108. In their written observations before the Chamber, the Government accepted that the circumstances of the case amounted to a “deprivation of liberty” within the meaning of Article 5 § 1 of the Convention. However, at the hearing and in the proceedings before the Grand Chamber, they contended that Article 5 was not applicable. They observed in that connection that the applicant had not been compulsorily admitted to a psychiatric institution by the public authorities under the Public Health Act, but had been housed in a social care home at his guardian’s request, on the basis of a civil-law agreement and in accordance with the rules on social assistance. Thus, persons in need of assistance, including those with mental disorders, could request various social and medical services, either directly or through their representatives, under the Social Assistance Act 1998 (see paragraphs 57-60 above). Homes for adults with mental disorders offered a wide range of services of this kind and placement in such institutions could not be seen as a deprivation of liberty. 109. As to the particular circumstances of the case, the Government emphasised that the applicant had never expressly and consciously objected to his placement in the home, and it could not therefore be concluded that the measure had been involuntary. Furthermore, he had been free to leave the home at any time. 110. In addition, the applicant had been encouraged to work in the village restaurant to the best of his abilities and had been granted leave of absence on three occasions. The reason he had twice returned from Ruse before the end of his authorised period of leave (see paragraph 27 above) was his lack of accommodation. The Government further submitted that the applicant had never been brought back to the home by the police. They acknowledged that in September 2006 the Director had been obliged to ask the police to search for him because he had not come back (see paragraph 28 above). However, it was clear from the case of Dodov v. Bulgaria (no. 59548/00, 17 January 2008) that the State had a positive obligation to take care of people housed in social care homes. In the Government’s submission, the steps taken by the Director had formed part of this duty of protection. 111. The Government further observed that the applicant had lacked legal capacity and had not had the benefit of a supportive family environment, accommodation or sufficient resources to lead an independent life. Referring in that connection to the judgments in H.M. v. Switzerland (cited above) and Nielsen v. Denmark (28 November 1988, Series A no. 144), they submitted that the applicant’s placement in the home was simply a protective measure taken in his interests alone and constituted an appropriate response to a social and medical emergency; such a response could not be viewed as involuntary. (c) The third party 112. Interights made the following general observations. It stated that it had carried out a survey of practices regarding placement of people with mental disorders in specialised institutions in central and east European countries. According to the conclusions of the survey, in most cases placement in such institutions could be regarded as amounting to a de facto deprivation of liberty. 113. Social care homes were often located in rural or mountainous areas which were not easily accessible. Where they were situated near urban areas, they were surrounded by high walls or fences and the gates were kept locked. As a rule, residents were able to leave the premises only with the express permission of the director of the home, and for a limited period. In cases of unauthorised leave, the police had the power to search for and return the persons concerned. The same restrictive regime applied to all residents, without any distinction according to legal status – whether they had full, partial or no legal capacity – and in the view of Interights this was a decisive factor. No consideration at all was given to whether the placement was voluntary or involuntary. 114. Regarding the analysis of the subjective aspect of the placement, Interights submitted that the consent of the persons concerned was a matter requiring careful attention. Thorough efforts should be made to ascertain their true wishes, notwithstanding any declaration of legal incapacity that might have been made in their case. Interights contended that in reality, when faced with a choice between a precarious, homeless existence and the relative security offered by a social care home, incapable persons in central and east European countries might opt for the latter solution, simply because no alternative services were offered by the State’s social welfare system. That did not mean, however, that the persons concerned could be said to have freely consented to the placement. 2. The Court’s assessment (a) General principles 115. The Court reiterates that the difference between deprivation of liberty and restrictions on liberty of movement, the latter being governed by Article 2 of Protocol No. 4, is merely one of degree or intensity, and not one of nature or substance. Although the process of classification into one or other of these categories sometimes proves to be no easy task in that some borderline cases are a matter of pure opinion, the Court cannot avoid making the selection upon which the applicability or inapplicability of Article 5 depends (see Guzzardi v. Italy, 6 November 1980, §§ 92-93, Series A no. 39). In order to determine whether someone has been deprived of his liberty, the starting-point must be his specific situation and account must be taken of a whole range of factors such as the type, duration, effects and manner of implementation of the measure in question (see Storck, cited above, § 71, and Guzzardi, cited above, § 92). 116. In the context of deprivation of liberty on mental-health grounds, the Court has held that a person could be regarded as having been “detained” even during a period when he was in an open hospital ward with regular unescorted access to the unsecured hospital grounds and the possibility of unescorted leave outside the hospital (see Ashingdane v. the United Kingdom, 28 May 1985, § 42, Series A no. 93). 117. Furthermore, in relation to the placement of mentally disordered persons in an institution, the Court has held that the notion of deprivation of liberty does not only comprise the objective element of a person’s confinement in a particular restricted space for a not negligible length of time. A person can only be considered to have been deprived of his liberty if, as an additional subjective element, he has not validly consented to the confinement in question (see Storck, cited above, § 74). 118. The Court has found that there was a deprivation of liberty in circumstances such as the following: (a) where the applicant, who had been declared legally incapable and admitted to a psychiatric hospital at his legal representative’s request, had unsuccessfully attempted to leave the hospital (see Shtukaturov v. Russia, no. 44009/05, § 108, ECHR 2008); (b) where the applicant had initially consented to her admission to a clinic but had subsequently attempted to escape (see Storck, cited above, § 76); and (c) where the applicant was an adult incapable of giving his consent to admission to a psychiatric institution which, nonetheless, he had never attempted to leave (see H.L. v. the United Kingdom, no. 45508/99, §§ 89-94, ECHR 2004-IX). 119. The Court has also held that the right to liberty is too important in a democratic society for a person to lose the benefit of Convention protection for the single reason that he may have given himself up to be taken into detention (see De Wilde, Ooms and Versyp v. Belgium, 18 June 1971, §§ 64 ‑ 65, Series A no. 12), especially when it is not disputed that that person is legally incapable of consenting to, or disagreeing with, the proposed action (see H.L. v. the United Kingdom, cited above, § 90). 120. In addition, the Court has had occasion to observe that the first sentence of Article 5 § 1 must be construed as laying down a positive obligation on the State to protect the liberty of those within its jurisdiction. Otherwise, there would be a sizeable gap in the protection from arbitrary detention, which would be inconsistent with the importance of personal liberty in a democratic society. The State is therefore obliged to take measures providing effective protection of vulnerable persons, including reasonable steps to prevent a deprivation of liberty of which the authorities have or ought to have knowledge (see Storck, cited above, § 102). Thus, having regard to the particular circumstances of the cases before it, the Court has held that the national authorities’ responsibility was engaged as a result of detention in a psychiatric hospital at the request of the applicant’s guardian (see Shtukaturov, cited above) and detention in a private clinic (see Storck, cited above). (b) Application of these principles in the present case 121. The Court observes at the outset that it is unnecessary in the present case to determine whether, in general terms, any placement of a legally incapacitated person in a social care institution constitutes a “deprivation of liberty” within the meaning of Article 5 § 1. In some cases, the placement is initiated by families who are also involved in the guardianship arrangements and is based on civil-law agreements signed with an appropriate social care institution. Accordingly, any restrictions on liberty in such cases are the result of actions by private individuals and the authorities’ role is limited to supervision. The Court is not called upon in the present case to rule on the obligations that may arise under the Convention for the authorities in such situations. 122. It observes that there are special circumstances in the present case. No members of the applicant’s family were involved in his guardianship arrangements, and the duties of guardian were assigned to a State official (Ms R.P.), who negotiated and signed the placement agreement with the Pastra social care home without any contact with the applicant, whom she had in fact never met. The placement agreement was implemented in a State-run institution by social services, which likewise did not interview the applicant (see paragraphs 12-15 above). The applicant was never consulted about his guardian’s choices, even though he could have expressed a valid opinion and his consent was necessary in accordance with the Persons and Family Act 1949 (see paragraph 42 above). That being so, he was not transferred to the Pastra social care home at his request or on the basis of a voluntary private-law agreement on admission to an institution to receive social assistance and protection. The Court considers that the restrictions complained of by the applicant are the result of various steps taken by public authorities and institutions through their officials, from the initial request for his placement in an institution and throughout the implementation of the relevant measure, and not of acts or initiatives by private individuals. Although there is no indication that the applicant’s guardian acted in bad faith, the above considerations set the present case apart from Nielsen (cited above), in which the applicant’s mother committed her son, a minor, to a psychiatric institution in good faith, which prompted the Court to find that the measure in question entailed the exercise of exclusive custodial rights over a child who was not capable of expressing a valid opinion. 123. The applicant’s placement in the social care home can therefore be said to have been attributable to the national authorities. It remains to be determined whether the restrictions resulting from that measure amounted to a “deprivation of liberty” within the meaning of Article 5. 124. With regard to the objective aspect, the Court observes that the applicant was housed in a block which he was able to leave, but emphasises that the question whether the building was locked is not decisive (see Ashingdane, cited above, § 42). While it is true that the applicant was able to go to the nearest village, he needed express permission to do so (see paragraph 25 above). Moreover, the time he spent away from the home and the places where he could go were always subject to controls and restrictions. 125. The Court further notes that between 2002 and 2009 the applicant was granted leave of absence for three short visits (of about ten days) to Ruse (see paragraphs 26-28 above). It cannot speculate as to whether he could have made more frequent visits had he asked to do so. Nevertheless, it observes that such leave of absence was entirely at the discretion of the home’s management, who kept the applicant’s identity papers and administered his finances, including transport costs (see paragraphs 25-26 above). Furthermore, it would appear to the Court that the home’s location in a mountain region far away from Ruse (some 400 km) made any journey difficult and expensive for the applicant in view of his income and his ability to make his own travel arrangements. 126. The Court considers that this system of leave of absence and the fact that the management kept the applicant’s identity papers placed significant restrictions on his personal liberty. 127. Moreover, it is not disputed that when the applicant did not return from leave of absence in 2006, the home’s management asked the Ruse police to search for and return him (see paragraph 28 above). The Court can accept that such steps form part of the responsibilities assumed by the management of a home for people with mental disorders towards its residents. It further notes that the police did not escort the applicant back and that he has not proved that he was arrested pending the arrival of staff from the home. Nevertheless, since his authorised period of leave had expired, the staff returned him to the home without regard for his wishes. 128. Accordingly, although the applicant was able to undertake certain journeys, the factors outlined above lead the Court to consider that, contrary to what the Government maintained, he was under constant supervision and was not free to leave the home without permission whenever he wished. With reference to the Dodov case (cited above), the Government maintained that the restrictions in issue had been necessary in view of the authorities’ positive obligations to protect the applicant’s life and health. The Court notes that, in the above-mentioned case, the applicant’s mother suffered from Alzheimer’s disease and that, as a result, her memory and other mental capacities had progressively deteriorated, to the extent that the nursing home staff had been instructed not to leave her unattended. In the present case, however, the Government have not shown that the applicant’s state of health was such as to put him at immediate risk, or to require the imposition of any special restrictions to protect his life and limb. 129. As regards the duration of the measure, the Court observes that it was not specified and was thus indefinite since the applicant was listed in the municipal registers as having his permanent address at the home, where he still remains (having lived there for more than eight years). This period is sufficiently lengthy for him to have felt the full adverse effects of the restrictions imposed on him. 130. As to the subjective aspect of the measure, it should be noted that, contrary to the requirements of domestic law (see paragraph 42 above), the applicant was not asked to give his opinion on his placement in the home and never explicitly consented to it. Instead, he was taken to Pastra by ambulance and placed in the home without being informed of the reasons for or duration of that measure, which had been taken by his officially assigned guardian. The Court observes in this connection that there are situations where the wishes of a person with impaired mental faculties may validly be replaced by those of another person acting in the context of a protective measure and that it is sometimes difficult to ascertain the true wishes or preferences of the person concerned. However, the Court has already held that the fact that a person lacks legal capacity does not necessarily mean that he is unable to comprehend his situation (see Shtukaturov, cited above, § 108). In the present case, domestic law attached a certain weight to the applicant’s wishes and it appears that he was well aware of his situation. The Court notes that, at least from 2004, the applicant explicitly expressed his desire to leave the Pastra social care home, both to psychiatrists and through his applications to the authorities to have his legal capacity restored and to be released from guardianship (see paragraphs 37-41 above). 131. These factors set the present case apart from H.M. v. Switzerland (cited above), in which the Court found that there had been no deprivation of liberty as the applicant had been placed in a nursing home purely in her own interests and, after her arrival there, had agreed to stay. In that connection the Government have not shown that in the present case, on arrival at the Pastra social care home or at any later date, the applicant agreed to stay there. That being so, the Court is not convinced that the applicant consented to the placement or accepted it tacitly at a later stage and throughout his stay. 132. Having regard to the particular circumstances of the present case, especially the involvement of the authorities in the decision to place the applicant in the home and its implementation, the rules on leave of absence, the duration of the placement and the applicant’s lack of consent, the Court concludes that the situation under examination amounts to a deprivation of liberty within the meaning of Article 5 § 1 of the Convention. Accordingly, that provision is applicable. C. Whether the applicant’s placement in the Pastra social care home was compatible with Article 5 § 1 1. The parties’ submissions (a) The applicant 133. The applicant submitted that, since he had not consented to his placement in the Pastra social care home and had not signed the agreement drawn up between his guardian and the home, the agreement was in breach of the Persons and Family Act. He added that he had not been informed of the agreement’s existence at the time of his placement and that he had remained unaware of it for a long time afterwards. Nor had he had any opportunity to challenge this step taken by his guardian. Although the guardian had been required by Article 126 of the FC to report on her activities to the guardianship authority (the mayor), the latter was not empowered to take any action against her. Furthermore, no report had ever been drawn up in respect of the applicant, and his guardians had never been called to account for that shortcoming. 134. The applicant further argued that his placement in a home for people with mental disorders did not fall within any of the grounds on which deprivation of liberty could be justified for the purposes of Article 5. The measure in question had not been justified by the need to ensure public safety or by the inability of the person concerned to cope outside the institution. In support of that contention, the applicant argued that the Director of the home had deemed him capable of integrating into the community and that attempts had been made to bring him closer to his family, albeit to no avail. Accordingly, the authorities had based their decision to place him in the home on the simple fact that his family were not prepared to take care of him and he needed social assistance. They had not examined whether the necessary assistance could be provided through alternative measures that were less restrictive of his personal liberty. Such measures were, moreover, quite conceivable since Bulgarian legislation made provision for a wide range of social services, such as personal assistance, social rehabilitation centres and special allowances and pensions. The authorities had thus failed to strike a fair balance between the applicant’s social needs and his right to liberty. It would be arbitrary, and contrary to the purpose of Article 5, for detention to be based on purely social considerations. 135. Should the Court take the view that the placement fell within the scope of Article 5 § 1 (e), by which persons of unsound mind could be deprived of their liberty, the applicant submitted that the national authorities had not satisfied the requirements of that provision. In the absence of a recent psychiatric assessment, it was clear that his placement in the home had not pursued the aim of providing him with medical treatment and had been based solely on medical documents produced in the context of the proceedings for his legal incapacitation. The documents had been issued approximately a year and a half beforehand and had not strictly concerned his placement in an institution for people with mental disorders. Relying on Varbanov v. Bulgaria (no. 31365/96, § 47, ECHR 2000-X), the applicant stated that he had been placed in the Pastra social care home without having undergone any assessment of his mental health at that time. (b) The Government 136. The Government submitted that the applicant’s placement in the home complied with domestic law as the guardian had signed an agreement whereby the applicant was to receive social services in his own interests. She had therefore acted in accordance with her responsibilities and had discharged her duty to protect the person under partial guardianship. 137. Bearing in mind that the sole purpose of the placement had been to provide the applicant with social services under the Social Assistance Act and not to administer compulsory medical treatment, the Government submitted that this measure was not governed by Article 5 § 1 (e) of the Convention. In that connection, the authorities had taken into account his financial and family situation, that is to say, his lack of resources and the absence of close relatives able to assist him on a day-to-day basis. 138. The Government noted at the same time that the applicant could in any event be regarded as a “person of unsound mind” within the meaning of Article 5 § 1 (e). The medical assessment carried out during the proceedings for his legal incapacitation in 2000 showed clearly that he was suffering from mental disorders and that it was therefore legitimate for the authorities to place him in an institution for people with similar problems. Lastly, relying on the Ashingdane judgment (cited above, § 44), the Government submitted that there was an adequate link between the reason given for the placement, namely the applicant’s state of health, and the institution in which he had been placed. Accordingly, they contended that the measure in issue had not been in breach of Article 5 § 1 (e). (c) The third party 139. On the basis of the study referred to in paragraphs 112 to 114 above, Interights submitted that in central and east European countries, the placement of mentally disordered persons in a social care home was viewed solely in terms of social protection and was governed by contractual law. Since such placements were not regarded as a form of deprivation of liberty under domestic law, the procedural safeguards available in relation to involuntary psychiatric confinement were not applicable. 140. Interights contended that situations of this nature were comparable to that examined in H.L. v. the United Kingdom (cited above), in which criticism had been levelled at the system prior to 2007 in the United Kingdom, whereby the common-law doctrine of necessity had permitted the “informal” detention of compliant incapacitated persons with mental disorders. The Court had held that the lack of any fixed procedural rules on the admission and detention of such persons was striking. In its view, the contrast between this dearth of regulation and the extensive network of safeguards applicable to formal psychiatric committals covered by mental-health legislation was significant. In the absence of a formalised admission procedure, indicating who could propose admission, for what reasons and on what basis, and given the lack of indication as to the length of the detention or the nature of treatment or care, the hospital’s health-care professionals had assumed full control of the liberty and treatment of a vulnerable incapacitated person solely on the basis of their own clinical assessments completed as and when they saw fit. While not doubting that those professionals had acted in good faith and in the applicant’s best interests, the Court had observed that the very purpose of procedural safeguards was to protect individuals against any misjudgments and professional lapses (ibid., §§ 120-21). 141. Interights urged the Court to remain consistent with that approach and to find that in the present case the informal nature of admission to and continued detention in a social care home was at odds with the guarantees against arbitrariness under Article 5. The courts had not been involved at any stage of the proceedings and no other independent body had been assigned the task of monitoring the institutions in question. The lack of regulation coupled with the vulnerability of mentally disordered persons facilitated abuses of fundamental rights in a context of extremely limited supervision. 142. The third party further submitted that, in most cases of this kind, placements were automatic as there were few possibilities of alternative social assistance. It contended that the authorities should be under a practical obligation to provide for appropriate measures that were less restrictive of personal liberty but were nonetheless capable of ensuring medical care and social services for mentally disordered persons. This would be a means of applying the principle that the rights guaranteed by the Convention should not be theoretical or illusory but practical and effective. 2. The Court’s assessment (a) General principles 143. The Court reiterates that in order to comply with Article 5 § 1, the detention in issue must first of all be “lawful”, including 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. It requires in addition, however, that any deprivation of liberty should be consistent with the purpose of Article 5, namely to protect individuals from arbitrariness (see Herczegfalvy v. Austria, 24 September 1992, § 63, Series A no. 244). Furthermore, the detention of an individual is such a serious measure that it is only justified where other, less severe measures have been considered and found to be insufficient to safeguard the individual or public interest which might require that the person concerned be detained. That means that it does not suffice that the deprivation of liberty is in conformity with national law; it must also be necessary in the circumstances (see Witold Litwa v. Poland, no. 26629/95, § 78, ECHR 2000-III). 144. In addition, sub-paragraphs (a) to (f) of Article 5 § 1 contain an exhaustive list of permissible grounds of deprivation of liberty; such a measure will not be lawful unless it falls within one of those grounds (ibid., § 49; see also, in particular, Saadi v. the United Kingdom [GC], no. 13229/03, § 43, ECHR 2008, and Jendrowiak v. Germany, no. 30060/04, § 31, 14 April 2011). 145. As regards the deprivation of liberty of mentally disordered persons, an individual cannot be deprived of his liberty as being of “unsound mind” unless the following three minimum conditions are satisfied: firstly, he must reliably be shown to be of unsound mind; secondly, the mental disorder must be of a kind or degree warranting compulsory confinement; thirdly, the validity of continued confinement depends upon the persistence of such a disorder (see Winterwerp v. the Netherlands, 24 October 1979, § 39, Series A no. 33; Shtukaturov, cited above, § 114; and Varbanov, cited above, § 45). 146. As to the second of the above conditions, the detention of a mentally disordered person may be necessary not only where the person needs therapy, medication or other clinical treatment to cure or alleviate his condition, but also where the person needs control and supervision to prevent him, for example, causing harm to himself or other persons (see Hutchison Reid v. the United Kingdom, no. 50272/99, § 52, ECHR 2003 ‑ IV). 147. The Court further reiterates that there must be some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention. In principle, the “detention” of a person as a mental-health patient will be “lawful” for the purposes of Article 5 § 1 (e) only if effected in a hospital, clinic or other appropriate institution authorised for that purpose (see Ashingdane, cited above, § 44, and Pankiewicz v. Poland, no. 34151/04, §§ 42-45, 12 February 2008). However, subject to the foregoing, Article 5 § 1 (e) is not in principle concerned with suitable treatment or conditions (see Ashingdane, cited above, § 44, and Hutchison Reid, cited above, § 49). (b) Application of these principles in the present case 148. In examining whether the applicant’s placement in the Pastra social care home was lawful for the purposes of Article 5 § 1, the Court must ascertain whether the measure in question complied with domestic law, whether it fell within the scope of one of the exceptions provided for in sub-paragraphs (a) to (f) of Article 5 § 1 to the rule of personal liberty, and, lastly, whether it was justified on the basis of one of those exceptions. 149. On the basis of the relevant domestic instruments (see paragraphs 57-59 above), the Court notes that Bulgarian law envisages placement in a social care institution as a protective measure taken at the request of the person concerned and not a coercive one ordered on one of the grounds listed in sub-paragraphs (a) to (f) of Article 5 § 1. However, in the particular circumstances of the instant case, the measure in question entailed significant restrictions on personal freedom giving rise to a deprivation of liberty with no regard for the applicant’s will or wishes (see paragraphs 121-32 above). 150. As to whether a procedure prescribed by law was followed, the Court notes firstly that under domestic law the guardian of a person partially lacking legal capacity is not empowered to take legal steps on that person’s behalf. Any contracts drawn up in such cases are valid only when signed together by the guardian and the person under partial guardianship (see paragraph 42 above). The Court therefore concludes that the decision by the applicant’s guardian R.P. to place him in a social care home for people with mental disorders without having obtained his prior consent was invalid under Bulgarian law. This conclusion is in itself sufficient for the Court to establish that the applicant’s deprivation of liberty was contrary to Article 5. 151. In any event, the Court considers that that measure was not lawful within the meaning of Article 5 § 1 of the Convention since it was not justified on the basis of any of sub-paragraphs (a) to (f). 152. The applicant accepted that the authorities had acted mainly on the basis of the arrangements governing social assistance (see paragraph 134 above). However, he argued that the restrictions imposed amounted to a deprivation of liberty which had not been warranted by any of the exceptions provided for in sub-paragraphs (a) to (f) of Article 5 § 1 to the rule of personal liberty. The Government contended that the applicant’s placement in the home had been intended solely to protect his interest in receiving social care (see paragraphs 136-37 above). However, they stated that should the Court decide that Article 5 § 1 was applicable, the measure in question should be held to comply with sub-paragraph (e) in view of the applicant’s mental disorder (see paragraph 138 above). 153. The Court notes that the applicant was eligible for social assistance as he had no accommodation and was unable to work as a result of his illness. It takes the view that, in certain circumstances, the welfare of a person with mental disorders might be a further factor to take into account, in addition to medical evidence, in assessing whether it is necessary to place the person in an institution. However, the objective need for accommodation and social assistance must not automatically lead to the imposition of measures involving deprivation of liberty. The Court considers that any protective measure should reflect as far as possible the wishes of persons capable of expressing their will. Failure to seek their opinion could give rise to situations of abuse and hamper the exercise of the rights of vulnerable persons. Therefore, any measure taken without prior consultation of the interested person will as a rule require careful scrutiny. 154. The Court is prepared to accept that the applicant’s placement in the home was the direct consequence of the state of his mental health, the declaration of his partial incapacity and his placement under partial guardianship. Some six days after being appointed as the applicant’s guardian, Ms R.P., without knowing him or meeting him, decided on the strength of the file to ask social services to place him in a home for people with mental disorders. Social services, for their part, likewise referred to the applicant’s mental health in finding that the request should be granted. It seems clear to the Court that if the applicant had not been deprived of legal capacity on account of his mental disorder, he would not have been deprived of his liberty. Therefore, the present case should be examined under sub-paragraph (e) of Article 5 § 1. 155. It remains to be determined whether the applicant’s placement in the home satisfied the requirements laid down in the Court’s case-law concerning the detention of mentally disordered persons (see the principles outlined in paragraph 145 above). In this connection, the Court reiterates that in deciding whether an individual should be detained as a “person of unsound mind”, the national authorities are to be recognised as having a certain discretion since it is in the first place for them to evaluate the evidence adduced before them in a particular case; the Court’s task is to review under the Convention the decisions of those authorities (see Winterwerp, cited above, § 40, and Luberti v. Italy, 23 February 1984, § 27, Series A no. 75). 156. In the instant case it is true that the expert medical report produced in the course of the proceedings for the applicant’s legal incapacitation referred to the disorders from which he was suffering. However, the relevant examination took place before November 2000, whereas the applicant was placed in the Pastra social care home on 10 December 2002 (see paragraphs 10 and 14 above). More than two years thus elapsed between the expert psychiatric assessment relied on by the authorities and the applicant’s placement in the home, during which time his guardian did not check whether there had been any change in his condition and did not meet or consult him. Unlike the Government (see paragraph 138 above), the Court considers that this period is excessive and that a medical opinion issued in 2000 cannot be regarded as a reliable reflection of the state of the applicant’s mental health at the time of his placement. It should also be noted that the national authorities were not under any legal obligation to order a psychiatric report at the time of the placement. The Government explained in that connection that the applicable provisions were those of the Social Assistance Act and not those of the Health Act (see paragraphs 57-60 and 137 above). Nevertheless, in the Court’s view, the lack of a recent medical assessment would be sufficient to conclude that the applicant’s placement in the home was not lawful for the purposes of Article 5 § 1 (e). 157. As a subsidiary consideration, the Court observes that the other requirements of Article 5 § 1 (e) were not satisfied in the present case either. As regards the need to justify the placement by the severity of the disorder, it notes that the purpose of the 2000 medical report was not to examine whether the applicant’s state of health required his placement in a home for people with mental disorders, but solely to determine the issue of his legal protection. While it is true that Article 5 § 1 (e) authorises the confinement of a person suffering from a mental disorder even where no medical treatment is necessarily envisaged (see Hutchison Reid, cited above, § 52), such a measure must be properly justified by the seriousness of the person’s condition in the interests of ensuring his or her own protection or that of others. In the present case, however, it has not been established that the applicant posed a danger to himself or to others, for example because of his psychiatric condition; the simple assertion by certain witnesses that he became aggressive when he drank (see paragraph 10 above) cannot suffice for this purpose. Nor have the authorities reported any acts of violence on the applicant’s part during his time in the Pastra social care home. 158. The Court also notes deficiencies in the assessment of whether the disorders warranting the applicant’s confinement still persisted. Although he was under the supervision of a psychiatrist (see paragraph 31 above), the aim of such supervision was not to provide an assessment at regular intervals of whether he still needed to be kept in the Pastra social care home for the purposes of Article 5 § 1 (e). Indeed, no provision was made for such an assessment under the relevant legislation. 159. Having regard to the foregoing, the Court observes that the applicant’s placement in the home was not ordered “in accordance with a procedure prescribed by law” and that his deprivation of liberty was not justified by sub-paragraph (e) of Article 5 § 1. Furthermore, the Government have not indicated any of the other grounds listed in sub-paragraphs (a) to (f) which might have justified the deprivation of liberty in issue in the present case. 160. There has therefore been a violation of Article 5 § 1 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION 161. The applicant complained that he had been unable to have the lawfulness of his placement in the Pastra social care home reviewed by a court. He relied on Article 5 § 4 of the Convention, which 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.” A. The parties’ submissions 1. The applicant 162. The applicant submitted that domestic law did not provide for any specific remedies in respect of his situation, such as a periodic judicial review of the lawfulness of his placement in a home for people with mental disorders. He added that, since he was deemed incapable of taking legal action on his own, domestic law did not afford him the possibility of applying to a court for permission to leave the Pastra social care home. He stated that he had likewise been unable to seek to have the placement agreement terminated, in view of the conflict of interests with his guardian, who at the same time was the Director of the home. 163. The applicant further noted that he had not been allowed to apply to the courts to initiate the procedure provided for in Article 277 of the CCP (see paragraph 51 above) and that, moreover, such action would not have led to a review of the lawfulness of his deprivation of liberty but solely to a review of the conditions justifying partial guardianship in his case. 164. He further submitted that the procedure provided for in Articles 113 and 115 of the FC (see paragraphs 49-50 above) in theory afforded his close relatives the right to ask the mayor to replace the guardian or to compel the mayor to terminate the placement agreement. However, this had been an indirect remedy not accessible to him, since his half-sister and his father’s second wife had not been willing to initiate such a procedure. 2. The Government 165. The Government submitted that, since the purpose of the applicant’s placement in the home had been to provide social services, he could at any time have asked for the placement agreement to be terminated without the courts needing to be involved. In their submission, in so far as the applicant alleged a conflict of interests with his guardian, he could have relied on Article 123 § 1 of the FC (see paragraph 50 above) and requested the guardianship authority to appoint an ad hoc representative, who could then have consented to a change of permanent residence. 166. The Government further contended that the applicant’s close relatives had not availed themselves of the possibility open to some of them under Articles 113 and 115 of the FC of requesting the guardianship authority to replace his guardian or of challenging steps taken by the latter. They added that in the event of a refusal, his relatives could have appealed to a court, which would have considered the merits of the case and, if appropriate, appointed a new guardian, who could then have terminated the placement agreement. This, in the Government’s submission, would have enabled them to challenge in substance the agreement signed between Ms R.P. and the Pastra social care home. 167. Lastly, the Government submitted that an action for restoration of legal capacity (under Article 277 of the CCP – see paragraph 51 above) constituted a remedy for the purposes of Article 5 § 4 since, if a sufficient improvement in the applicant’s health had been observed and he had been released from guardianship, he would have been free to leave the home. B. The Court’s assessment 1. General principles 168. The Court reiterates that Article 5 § 4 entitles detained persons to institute proceedings for a review of compliance with the procedural and substantive conditions which are essential for the “lawfulness”, in Convention terms, of their deprivation of liberty. The notion of “lawfulness” under paragraph 4 of Article 5 has the same meaning as in paragraph 1, so that a 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 E. v. Norway, 29 August 1990, § 50, Series A no. 181-A). The reviewing “court” must not have merely advisory functions but must have the competence to “decide” the “lawfulness” of the detention and to order release if the detention is unlawful (see Ireland v. the United Kingdom, 18 January 1978, § 200, Series A no. 25; Weeks v. the United Kingdom, 2 March 1987, § 61, Series A no. 114; Chahal v. the United Kingdom, 15 November 1996, § 130, Reports of Judgments and Decisions 1996 ‑ V; and A. and Others v. the United Kingdom [GC], no. 3455/05, § 202, ECHR 2009). 169. The forms of judicial review satisfying the requirements of Article 5 § 4 may vary from one domain to another, and will depend on the type of deprivation of liberty in issue. It is not the Court’s task to inquire into what would be the most appropriate system in the sphere under examination (see Shtukaturov, cited above, § 123). 170. Nevertheless, Article 5 § 4 guarantees a remedy that must be accessible to the person concerned and must afford the possibility of reviewing compliance with the conditions to be satisfied if the detention of a person of unsound mind is to be regarded as “lawful” for the purposes of Article 5 § 1 (e) (see Ashingdane, cited above, § 52). The Convention requirement for an act of deprivation of liberty to be amenable to independent judicial scrutiny is of fundamental importance in the context of the underlying purpose of Article 5 of the Convention to provide safeguards against arbitrariness. What is at stake is both the protection of the physical liberty of individuals and their personal security (see Varbanov, cited above, § 58). In the case of detention on the ground of mental illness, special procedural safeguards may be called for in order to protect the interests of persons who, on account of their mental disabilities, are not fully capable of acting for themselves (see, among other authorities, Winterwerp, cited above, § 60). 171. Among the principles emerging from the Court’s case-law under Article 5 § 4 concerning “persons of unsound mind” are the following: (a) a person detained for an indefinite or lengthy period is in principle entitled, at any rate where there is no automatic periodic review of a judicial character, to take proceedings “at reasonable intervals” before a court to put in issue the “lawfulness” – within the meaning of the Convention – of his detention; (b) Article 5 § 4 requires the procedure followed to have a judicial character and to afford the individual concerned guarantees appropriate to the kind of deprivation of liberty in question; in order to determine whether proceedings provide adequate guarantees, regard must be had to the particular nature of the circumstances in which they take place; (c) the judicial proceedings referred to in Article 5 § 4 need not always be attended by the same guarantees as those required under Article 6 § 1 for civil or criminal litigation. Nonetheless, it is essential that the person concerned should have access to a court and the opportunity to be heard either in person or, where necessary, through some form of representation (see Megyeri v. Germany, 12 May 1992, § 22, Series A no. 237-A). 2. Application of these principles in the present case 172. The Court observes that the Government have not indicated any domestic remedy capable of affording the applicant the direct opportunity to challenge the lawfulness of his placement in the Pastra social care home and the continued implementation of that measure. It also notes that the Bulgarian courts were not involved at any time or in any way in the placement and that the domestic legislation does not provide for automatic periodic judicial review of placement in a home for people with mental disorders. Furthermore, since the applicant’s placement in the home is not recognised as a deprivation of liberty in Bulgarian law (see paragraph 58 above), there is no provision for any domestic legal remedies by which to challenge its lawfulness in terms of a deprivation of liberty. In addition, the Court notes that, according to the domestic courts’ practice, the validity of the placement agreement could have been challenged on the ground of lack of consent only on the guardian’s initiative (see paragraph 54 above). 173. In so far as the Government referred to the procedure for restoration of legal capacity under Article 277 of the CCP (see paragraph 167 above), the Court notes that the purpose of this procedure would not have been to examine the lawfulness of the applicant’s placement per se, but solely to review his legal status (see paragraphs 233-46 below). The Government also referred to the procedures for reviewing steps taken by the guardian (see paragraphs 165-66 above). The Court considers it necessary to determine whether such remedies could have given rise to a judicial review of the lawfulness of the placement as required by Article 5 § 4. 174. In this connection, it notes that the 1985 FC entitled close relatives of a person under partial guardianship to challenge decisions by the guardianship authority, which in turn was required to review steps taken by the guardian – including the placement agreement – and to replace the latter in the event of failure to discharge his or her duties (see paragraphs 48-50 above). However, the Court notes that those remedies were not directly accessible to the applicant. Moreover, none of the persons theoretically entitled to make use of them displayed any intention of acting in Mr Stanev’s interests, and he himself was unable to act on his own initiative without their approval. 175. It is uncertain whether the applicant could have requested the mayor to demand explanations from the guardian or to suspend the implementation of the placement agreement on the ground that it was invalid. In any event, it appears that since he had been partially deprived of legal capacity, the law did not entitle him to apply of his own motion to the courts to challenge steps taken by the mayor (see paragraph 49 above); this was not disputed by the Government. 176. The same conclusion applies as regards the possibility for the applicant to ask the mayor to replace his guardian temporarily with an ad hoc representative on the basis of an alleged conflict of interests and then to apply for the termination of the placement agreement. The Court observes in this connection that the mayor has discretion to determine whether there is a conflict of interests (see paragraph 50 above). Lastly, it does not appear that the applicant could have applied of his own motion to the courts for a review on the merits in the event of the mayor’s refusal to take such action. 177. The Court therefore concludes that the remedies referred to by the Government were either inaccessible to the applicant or were not judicial in nature. Furthermore, none of them can give rise to a direct review of the lawfulness of the applicant’s placement in the Pastra social care home in terms of domestic law and the Convention. 178. Having regard to those considerations, the Court dismisses the Government’s objection of failure to exhaust domestic remedies (see paragraphs 97-99 above) and finds that there has been a violation of Article 5 § 4 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 5 § 5 OF THE CONVENTION 179. The applicant submitted that he had not been entitled to compensation for the alleged violations of his rights under Article 5 §§ 1 and 4 of the Convention. He relied on Article 5 § 5, which provides: “Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.” A. The parties’ submissions 180. The applicant submitted that the circumstances in which unlawful detention could give rise to compensation were exhaustively listed in the State Responsibility for Damage Act 1988 (see paragraphs 62-67 above) and that his own situation was not covered by any of them. He further complained that there were no legal remedies by which compensation could be claimed for a violation of Article 5 § 4. 181. The Government maintained that the compensation procedure under the 1988 Act could have been initiated if the applicant’s placement in the home had been found to have no legal basis. Since the placement had been found to be consistent with domestic law and with his own interests, he had not been able to initiate the procedure in question. B. The Court’s assessment 182. The Court reiterates that Article 5 § 5 is complied with where it is possible to apply for compensation in respect of a deprivation of liberty effected in conditions contrary to paragraphs 1, 2, 3 or 4 (see Wassink v. the Netherlands, 27 September 1990, § 38, Series A no. 185-A, and Houtman and Meeus v. Belgium, no. 22945/07, § 43, 17 March 2009). The right to compensation set forth in paragraph 5 therefore presupposes that a violation of one of the other paragraphs has been established, either by a domestic authority or by the Convention institutions. In this connection, the effective enjoyment of the right to compensation guaranteed by Article 5 § 5 must be ensured with a sufficient degree of certainty (see Ciulla v. Italy, 22 February 1989, § 44, Series A no. 148; Sakık and Others v. Turkey, 26 November 1997, § 60, Reports 1997-VII; and N.C. v. Italy [GC], no. 24952/94, § 49, ECHR 2002-X). 183. Turning to the present case, the Court observes that, regard being had to its finding of a violation of paragraphs 1 and 4 of Article 5, paragraph 5 is applicable. It must therefore ascertain whether, prior to the present judgment, the applicant had an enforceable right at domestic level to compensation for damage, or whether he will have such a right following the adoption of this judgment. 184. The Court reiterates in this connection that in order to find a violation of Article 5 § 5, it has to establish that the finding of a violation of one of the other paragraphs of Article 5 could not give rise, either before or after the Court’s judgment, to an enforceable claim for compensation before the domestic courts (see Brogan and Others v. the United Kingdom, 29 November 1988, §§ 66-67, Series A no. 145-B). 185. Having regard to the case-law cited above, the Court considers that it must first be determined whether the violation of Article 5 §§ 1 and 4 found in the present case could have given rise, before the delivery of this judgment, to an entitlement to compensation before the domestic courts. 186. As regards the violation of Article 5 § 1, the Court observes that section 2(1) of the State Responsibility for Damage Act 1988 provides for compensation for damage resulting from a judicial decision ordering certain types of detention where the decision has been set aside as having no legal basis (see paragraph 62 above). However, that was not the case in this instance. It appears from the case file that the Bulgarian judicial authorities have not at any stage found the measure to have been unlawful or otherwise in breach of Article 5 of the Convention. Moreover, the Government’s line of argument has been that the applicant’s placement in the home was in accordance with domestic law. The Court therefore concludes that the applicant was unable to claim any compensation under the above-mentioned provision in the absence of an acknowledgment by the national authorities that the placement was unlawful. 187. As to the possibility under section 1 of the same Act of claiming compensation for damage resulting from unlawful acts by the authorities (see paragraph 63 above), the Court observes that the Government have not produced any domestic decisions indicating that that provision is applicable to cases involving the placement of people with mental disorders in social care homes on the basis of civil-law agreements. 188. Furthermore, since no judicial remedy by which to review the lawfulness of the placement was available under Bulgarian law, the applicant could not have invoked State liability as a basis for receiving compensation for the violation of Article 5 § 4. 189. The question then arises whether the judgment in the present case, in which violations of paragraphs 1 and 4 of Article 5 have been found, will entitle the applicant to claim compensation under Bulgarian law. The Court observes that it does not appear from the relevant legislation that any such remedy exists; nor, indeed, have the Government submitted any arguments to prove the contrary. 190. It has therefore not been shown the applicant was able to avail himself prior to the Court’s judgment in the present case, or will be able to do so after its delivery, of a right to compensation for the violation of Article 5 §§ 1 and 4. 191. There has therefore been a violation of Article 5 § 5. IV. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION TAKEN ALONE AND IN CONJUNCTION WITH ARTICLE 13 192. The applicant complained that the living conditions in the Pastra social care home were poor and that no effective remedy was available under Bulgarian law in respect of that complaint. He relied on Article 3 of the Convention taken alone and in conjunction with Article 13. These provisions are worded as follows: Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Article 13 “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A. Preliminary objection of failure to exhaust domestic remedies 193. In their memorial before the Grand Chamber, the Government for the first time raised an objection of failure to exhaust domestic remedies in respect of the complaint under Article 3 of the Convention. They submitted that the applicant could have obtained compensation for the living conditions in the home by bringing an action under the State Responsibility for Damage Act 1988. 194. The Court reiterates that, in accordance with Rule 55 of the Rules of Court, any plea of inadmissibility must, in so far as its character and the circumstances permit, be raised by the respondent Contracting Party in its written or oral observations on the admissibility of the application (see N.C. v. Italy, cited above, § 44). Where an objection of failure to exhaust domestic remedies is raised out of time for the purposes of Rule 55, an estoppel arises and the objection must accordingly be dismissed (see Velikova v. Bulgaria, no. 41488/98, § 57, ECHR 2000-VI, and Tanrıbilir v. Turkey, no. 21422/93, § 59, 16 November 2000). 195. In the present case the Government have not cited any circumstances justifying their failure to raise the objection in question at the time of the Chamber’s examination of the admissibility of the case. 196. That being so, the Court observes that the Government are estopped from raising this objection, which must accordingly be dismissed. B. Merits of the complaint under Article 3 of the Convention 1. The parties’ submissions 197. The applicant submitted that the poor living conditions in the Pastra social care home, in particular the inadequate food, the deplorable sanitary conditions, the lack of heating, the enforced medical treatment, the overcrowded bedrooms and the absence of therapeutic and cultural activities, amounted to treatment prohibited by Article 3. 198. He observed that the Government had already acknowledged in 2004 that such living conditions did not comply with the relevant European standards and had undertaken to make improvements (see paragraph 82 above). However, the conditions had remained unchanged, at least until late 2009. 199. In their observations before the Chamber, the Government acknowledged the deficiencies in the living conditions at the home. They explained that the inadequate financial resources set aside for institutions of this kind formed the main obstacle to ensuring the requisite minimum standard of living. They also stated that, following an inspection by the Social Assistance Agency, the authorities had resolved to close the Pastra social care home and to take steps to improve living conditions for its residents. In the Government’s submission, since the living conditions were the same for all the home’s residents and there had been no intention to inflict ill-treatment, the applicant had not been subjected to degrading treatment. 200. Before the Grand Chamber the Government stated that renovation work had been carried out in late 2009 in the part of the home where the applicant lived (see paragraph 24 above). 2. The Court’s assessment (a) General principles 201. Article 3 enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim’s behaviour (see, among other authorities, Kudła v. Poland [GC], no. 30210/96, § 90, ECHR 2000-XI, and Poltoratskiy v. Ukraine, no. 38812/97, § 130, ECHR 2003-V). 202. Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is, in the nature of things, relative; it depends on all the circumstances of the case, such as the nature and context of the treatment, the manner and method of its execution, its duration, its physical or mental effects and, in some instances, the sex, age and state of health of the victim (see Kudła, cited above, § 91, and Poltoratskiy, cited above, § 131). 203. 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 or 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 or driving them to act against their will or conscience (see Jalloh v. Germany [GC], no. 54810/00, § 68, ECHR 2006-IX). In this connection, the question whether such treatment was intended to humiliate or debase the victim is a factor to be taken into account, although the absence of any such purpose does not inevitably lead to a finding that there has been no violation of Article 3 (see Peers v. Greece, no. 28524/95, §§ 67, 68 and 74, ECHR 2001-III, and Kalashnikov v. Russia, no. 47095/99, § 95, ECHR 2002-VI). 204. The suffering and 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. Yet it cannot be said that deprivation of liberty in itself raises an issue under Article 3 of the Convention. Nevertheless, under that Article 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 by, among other things, providing him with the requisite medical assistance (see Kudła, cited above, §§ 92-94). 205. When assessing the conditions of a deprivation of liberty under Article 3 of the Convention, account has to be taken of their cumulative effects and the duration of the measure in question (see Kalashnikov, cited above, §§ 95 and 102; Kehayov v. Bulgaria, no. 41035/98, § 64, 18 January 2005; and Iovchev v. Bulgaria, no. 41211/98, § 127, 2 February 2006). In this connection an important factor to take into account, besides the material conditions, is the detention regime. In assessing whether a restrictive regime may amount to treatment contrary to Article 3 in a given case, regard must be had to the particular conditions, the stringency of the regime, its duration, the objective pursued and its effects on the person concerned (see Kehayov, cited above, § 65). (b) Application of these principles in the present case 206. In the present case the Court has found that the applicant’s placement in the Pastra social care home – a situation for which the domestic authorities must be held responsible – amounts to a deprivation of liberty within the meaning of Article 5 of the Convention (see paragraph 132 above). It follows that Article 3 is applicable to the applicant’s situation, seeing that it prohibits the inhuman and degrading treatment of anyone in the care of the authorities. The Court would emphasise that the prohibition of ill-treatment in Article 3 applies equally to all forms of deprivation of liberty, and in particular makes no distinction according to the purpose of the measure in issue; it is immaterial whether the measure entails detention ordered in the context of criminal proceedings or admission to an institution with the aim of protecting the life or health of the person concerned. 207. The Court notes at the outset that, according to the Government, the building in which the applicant lives was renovated in late 2009, resulting in an improvement in his living conditions (see paragraph 200 above); the applicant did not dispute this. The Court therefore considers that the applicant’s complaint should be taken to refer to the period between 2002 and 2009. The Government have not denied that during that period the applicant’s living conditions corresponded to his description, and have also acknowledged that, for economic reasons, there were certain deficiencies in that regard (see paragraphs 198-99 above). 208. The Court observes that although the applicant shared a room measuring 16 sq. m with four other residents, he enjoyed considerable freedom of movement both inside and outside the home, a fact likely to lessen the adverse effects of a limited sleeping area (see Valašinas v. Lithuania, no. 44558/98, § 103, ECHR 2001-VIII). 209. Nevertheless, other aspects of the applicant’s physical living conditions are a considerable cause for concern. In particular, it appears that the food was insufficient and of poor quality. The building was inadequately heated and in winter the applicant had to sleep in his coat. He was able to have a shower once a week in an unhygienic and dilapidated bathroom. The toilets were in an execrable state and access to them was dangerous, according to the findings by the CPT (see paragraphs 21, 22, 23, 78 and 79 above). In addition, the home did not return clothes to the same people after they were washed (see paragraph 21 above), which was likely to arouse a feeling of inferiority in the residents. 210. The Court cannot overlook the fact that the applicant was exposed to all the above-mentioned conditions for a considerable period of approximately seven years. Nor can it ignore the findings of the CPT, which, after visiting the home, concluded that the living conditions there at the relevant time could be said to amount to inhuman and degrading treatment. Despite being aware of those findings, during the period from 2002 to 2009 the Government did not act on their undertaking to close down the institution (see paragraph 82 above). The Court considers that the lack of financial resources cited by the Government is not a relevant argument to justify keeping the applicant in the living conditions described (see Poltoratskiy, cited above, § 148). 211. It would nevertheless emphasise that there is no suggestion that the national authorities deliberately intended to inflict degrading treatment. However, as noted above (see paragraph 203), the absence of any such purpose cannot conclusively rule out a finding of a violation of Article 3. 212. In conclusion, while noting the improvements apparently made to the Pastra social care home since late 2009, the Court considers that, taken as a whole, the living conditions to which the applicant was exposed during a period of approximately seven years amounted to degrading treatment. 213. There has therefore been a violation of Article 3 of the Convention. C. Merits of the complaint under Article 13 taken in conjunction with Article 3 1. The parties’ submissions 214. The applicant submitted that no domestic remedies, including the claim for compensation envisaged in the State Responsibility for Damage Act 1988, had been accessible to him without his guardian’s consent. He pointed out in that connection that he had not had a guardian for a period of more than two years, between the end of Ms R.P.’s designated term on 31 December 2002 (see paragraph 12 above) and the appointment of a new guardian on 2 February 2005 (see paragraph 17 above). Moreover, his new guardian was also the Director of the social care home. There would therefore have been a conflict of interests between the applicant and his guardian in the event of any dispute concerning the living conditions at the home, and the applicant could not have expected the guardian to support his allegations. 215. In the Government’s submission, an action for restoration of legal capacity (see paragraphs 51-52 above) constituted a remedy by which the applicant could have secured a review of his status and, in the event of being released from partial guardianship, he could have left the social care home and ceased to endure the living conditions about which he complained. 216. The Government added that the applicant could have complained directly about the living conditions at the Pastra social care home by bringing an action under section 1 of the State Responsibility for Damage Act 1988 (see paragraphs 62-67 above). 2. The Court’s assessment 217. The Court refers to its settled case-law to the effect that Article 13 guarantees the existence of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief. Contracting States are afforded some discretion as to the manner in which they conform to their obligations under this provision. The scope of the obligation under Article 13 varies depending on the nature of the applicant’s complaint under the Convention. Nevertheless, the remedy required by Article 13 must be “effective” in practice as well as in law (see McGlinchey and Others v. the United Kingdom, no. 50390/99, § 62, ECHR 2003 ‑ V). 218. Where, as in the present case, the Court has found a breach of Article 3, compensation for the non-pecuniary damage flowing from the breach should in principle be part of the range of available remedies (ibid., § 63; and Iovchev, cited above, § 143). 219. In the instant case the Court observes that section 1(1) of the State Responsibility for Damage Act 1988 has indeed been interpreted by the domestic courts as being applicable to damage suffered by prisoners as a result of poor detention conditions (see paragraphs 63-64 above). However, according to the Government’s submissions, the applicant’s placement in the Pastra social care home is not regarded as detention under domestic law (see paragraphs 108-11 above). Therefore, he would not have been entitled to compensation for the poor living conditions in the home. Moreover, there are no judicial precedents in which this provision has been found to apply to allegations of poor conditions in social care homes (see paragraph 65 above), and the Government have not adduced any arguments to prove the contrary. Having regard to those considerations, the Court concludes that the remedies in question were not effective within the meaning of Article 13. 220. As to the Government’s reference to the procedure for restoration of legal capacity (see paragraph 215 above), the Court considers that, even assuming that as a result of that remedy the applicant had been able to have his legal capacity restored and to leave the home, he would not have been awarded any compensation for his treatment during his placement there. Accordingly, the remedy in question did not afford appropriate redress. 221. There has therefore been a violation of Article 13 of the Convention taken in conjunction with Article 3. V. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 222. The applicant alleged that Bulgarian law had not afforded him the possibility of applying to a court for restoration of his legal capacity. He relied on Article 6 § 1 of the Convention, the relevant parts of which read: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” A. Preliminary remarks 223. The Grand Chamber observes that the Government have maintained before it the objection they raised before the Chamber alleging failure to exhaust domestic remedies. The objection was based on Article 277 of the CCP, which, according to the Government, entitled the applicant to apply personally to the courts for restoration of his legal capacity. 224. The Grand Chamber notes that in its admissibility decision of 29 June 2010 the Chamber observed that the applicant disputed the accessibility of the remedy which, according to the Government, would have enabled him to obtain a review of his legal status and that that argument underpinned his complaint under Article 6 § 1. The Chamber thus joined the Government’s objection to its examination of the merits of the complaint in question. The Grand Chamber sees no reason to depart from the Chamber’s conclusion. B. Merits 1. The parties’ submissions 225. The applicant maintained that he had been unable personally to institute proceedings for restoration of his legal capacity under Article 277 of the CCP and that this was borne out by the Supreme Court’s decision no. 5/79 (see paragraph 51 above). In support of that argument, he submitted that the Dupnitsa District Court had declined to examine his application for judicial review of the mayor’s refusal to bring such proceedings, on the ground that the guardian had not countersigned the form of authority (see paragraphs 39-40 above). 226. In addition, although an action for restoration of legal capacity had not been accessible to him, the applicant had attempted to bring such an action through the public prosecutor’s office, the mayor and his guardian (the Director of the home). However, since no application to that end had been lodged with the courts, all his attempts had failed. Accordingly, the applicant had never had the opportunity to have his case heard by a court. 227. The Government submitted that Article 277 of the CCP had offered the applicant direct access to a court at any time to have his legal status reviewed. They pointed out that, contrary to what the applicant alleged, the Supreme Court’s decision no. 5/79 had interpreted Article 277 of the CCP as meaning that persons partially deprived of legal capacity could apply directly to the courts to be released from guardianship. The only condition for making such an application was the production of evidence of an improvement in their condition. However, as was indicated by the medical assessment carried out at the public prosecutor’s request (see paragraph 37 above), which had concluded that the applicant’s condition still persisted and that he was incapable of looking after his own interests, it was clear that the applicant had not had any such evidence available. The Government thus concluded that the applicant had not attempted to apply to the court on his own because he had been unable to substantiate his application. 228. The Government further observed that the courts regularly considered applications for restoration of legal capacity submitted, for example, by a guardian (see paragraph 52 above). 2. The Court’s assessment (a) General principles 229. The Court reiterates that Article 6 § 1 secures to everyone the right to have any claim relating to his or her civil rights and obligations brought before a court or tribunal (see Golder v. the United Kingdom, 21 February 1975, § 36, Series A no. 18). This “right to a court”, of which the right of access is an aspect, may be relied on by anyone who considers on arguable grounds that an interference with the exercise of his or her civil rights is unlawful and complains that no possibility was afforded to submit that claim to a court meeting the requirements of Article 6 § 1 (see, inter alia, Roche v. the United Kingdom [GC], no. 32555/96, § 117, ECHR 2005-X, and Salontaji-Drobnjak v. Serbia, no. 36500/05, § 132, 13 October 2009). 230. 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” (see Ashingdane, cited above, § 57). In laying down such regulation, the Contracting States enjoy a certain margin of appreciation. Whilst the final decision as to observance of the Convention’s requirements rests with the Court, it is no part of the Court’s function to substitute for the assessment of the national authorities any other assessment of what might be the best policy in this field. Nonetheless, the limitations applied must not restrict the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (ibid.; see also, among many other authorities, Cordova v. Italy, no. 40877/98, § 54, ECHR 2003-I, and the recapitulation of the relevant principles in Fayed v. the United Kingdom, 21 September 1994, § 65, Series A no. 294-B). 231. Furthermore, the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective. This is particularly true for the guarantees enshrined in Article 6, in view of the prominent place held in a democratic society by the right to a fair trial with all the guarantees under that Article (see Prince Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98, § 45, ECHR 2001-VIII). 232. Lastly, the Court observes that in most of the cases before it involving “persons of unsound mind”, the domestic proceedings have concerned their detention and were thus examined under Article 5 of the Convention. However, it has consistently held that the “procedural” guarantees under Article 5 §§ 1 and 4 of the Convention are broadly similar to those under Article 6 § 1 (see, for instance, Winterwerp, cited above, § 60; Sanchez-Reisse v. Switzerland, 21 October 1986, §§ 51 and 55, Series A no. 107; Kampanis v. Greece, 13 July 1995, § 47, Series A no. 318-B; and Ilijkov v. Bulgaria, no. 33977/96, § 103, 26 July 2001). In the Shtukaturov case (cited above, § 66), in determining whether or not the incapacitation proceedings had been fair, the Court had regard, mutatis mutandis, to its case-law under Article 5 §§ 1 (e) and 4 of the Convention. (b) Application of these principles in the present case 233. The Court observes at the outset that in the present case none of the parties disputed the applicability of Article 6 to proceedings for restoration of legal capacity. The applicant, who has been partially deprived of legal capacity, complained that Bulgarian law did not afford him direct access to a court to apply to have his capacity restored. The Court has had occasion to clarify that proceedings for restoration of legal capacity are directly decisive for the determination of “civil rights and obligations” (see Matter v. Slovakia, no. 31534/96, § 51, 5 July 1999). Article 6 § 1 of the Convention is therefore applicable in the instant case. 234. It remains to be determined whether the applicant’s access to court was restricted and, if so, whether the restriction pursued a legitimate aim and was proportionate to it. 235. The Court notes firstly that the parties differed as to whether a legally incapacitated person had locus standi to apply directly to the Bulgarian courts for restoration of legal capacity; the Government argued that this was the case, whereas the applicant maintained the contrary. 236. The Court accepts the applicant’s argument that, in order to make an application to a Bulgarian court, a person under partial guardianship is required to seek the support of the persons referred to in Article 277 of the 1952 CCP (which has become Article 340 of the 2007 CCP). The list of persons entitled to apply to the courts under Bulgarian law does not explicitly include a person under partial guardianship (see paragraphs 45 and 51 above). 237. With regard to the Supreme Court’s 1980 decision (see paragraph 51 above), the Court observes that, although the fourth sentence of paragraph 10 of the decision, read in isolation, might give the impression that a person under partial guardianship has direct access to a court, the Supreme Court explains further on that, where the guardian of a partially incapacitated person and the guardianship authority refuse to institute proceedings for restoration of legal capacity, the person concerned may request the public prosecutor to do so. In the Court’s view, the need to seek the intervention of the public prosecutor is scarcely reconcilable with direct access to court for persons under partial guardianship in so far as the decision to intervene is left to the prosecutor’s discretion. It follows that the Supreme Court’s 1980 decision cannot be said to have clearly affirmed the existence of such access in Bulgarian law. 238. The Court further notes that the Government have not produced any court decisions showing that persons under partial guardianship have been able to apply of their own motion to a court to have the measure lifted; however, they have shown that at least one application for restoration of legal capacity has been successfully brought by the guardian of a fully incapacitated person (see paragraph 52 above). 239. The Court thus considers it established that the applicant was unable to apply for restoration of his legal capacity other than through his guardian or one of the persons listed in Article 277 of the CCP. 240. The Court would also emphasise that, as far as access to court is concerned, domestic law makes no distinction between those who are entirely deprived of legal capacity and those who, like the applicant, are only partially incapacitated. Moreover, domestic legislation does not provide for any possibility of automatic periodic review of whether the grounds for placing a person under guardianship remain valid. Lastly, in the applicant’s case the measure in question was not limited in time. 241. Admittedly, the right of access to the courts is not absolute and requires by its very nature that the State should enjoy a certain margin of appreciation in regulating the sphere under examination (see Ashingdane, cited above, § 57). In addition, the Court acknowledges that restrictions on a person’s procedural rights, even where the person has been only partially deprived of legal capacity, may be justified for the person’s own protection, the protection of the interests of others and the proper administration of justice. However, the importance of exercising these rights will vary according to the purpose of the action which the person concerned intends to bring before the courts. In particular, the right to ask a court to review a declaration of incapacity is one of the most important rights for the person concerned since such a procedure, once initiated, will be decisive for the exercise of all the rights and freedoms affected by the declaration of incapacity, not least in relation to any restrictions that may be placed on the person’s liberty (see also Shtukaturov, cited above, § 71). The Court therefore considers that this right is one of the fundamental procedural rights for the protection of those who have been partially deprived of legal capacity. It follows that such persons should in principle enjoy direct access to the courts in this sphere. 242. However, the State remains free to determine the procedure by which such direct access is to be realised. At the same time, the Court considers that it would not be incompatible with Article 6 for national legislation to provide for certain restrictions on access to court in this sphere, with the sole aim of ensuring that the courts are not overburdened with excessive and manifestly ill-founded applications. Nevertheless, it seems clear that this problem may be solved by other, less restrictive means than automatic denial of direct access, for example by limiting the frequency with which applications may be made or introducing a system for prior examination of their admissibility on the basis of the file. 243. The Court further observes that eighteen of the twenty national legal systems studied in this context provide for direct access to the courts for any partially incapacitated persons wishing to have their status reviewed. In seventeen States such access is open even to those declared fully incapable (see paragraphs 88-90 above). This indicates that there is now a trend at European level towards granting legally incapacitated persons direct access to the courts to seek restoration of their capacity. 244. The Court is also obliged to note the growing importance which international instruments for the protection of people with mental disorders are now attaching to granting them as much legal autonomy as possible. It refers in this connection to the United Nations Convention of 13 December 2006 on the Rights of Persons with Disabilities and to Recommendation No. R (99) 4 of the Committee of Ministers of the Council of Europe on principles concerning the legal protection of incapable adults, which recommend that adequate procedural safeguards be put in place to protect legally incapacitated persons to the greatest extent possible, to ensure periodic reviews of their status and to make appropriate remedies available (see paragraphs 72-73 above). 245. In the light of the foregoing, in particular the trends emerging in national legislation and the relevant international instruments, the Court considers that Article 6 § 1 of the Convention must be interpreted as guaranteeing in principle that anyone who has been declared partially incapable, as is the applicant’s case, has direct access to a court to seek restoration of his or her legal capacity. 246. In the instant case the Court has observed that direct access of this kind is not guaranteed with a sufficient degree of certainty by the relevant Bulgarian legislation. That finding is sufficient for it to conclude that there has been a violation of Article 6 § 1 of the Convention in respect of the applicant. 247. The above conclusion dispenses the Court from examining whether the indirect legal remedies referred to by the Government provided the applicant with sufficient guarantees that his case would be brought before a court. 248. The Court therefore dismisses the Government’s objection of failure to exhaust domestic remedies (see paragraph 223 above) and concludes that there has been a violation of Article 6 § 1 of the Convention. VI. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION TAKEN ALONE AND IN CONJUNCTION WITH ARTICLE 13 249. The applicant alleged that the restrictive guardianship regime, including his placement in the Pastra social care home and the physical living conditions there, had amounted to unjustified interference with his right to respect for his private life and home. He submitted that Bulgarian law had not afforded him a sufficient and accessible remedy in that respect. He relied on Article 8 of the Convention taken alone and in conjunction with Article 13. 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.” 250. The applicant maintained in particular that the guardianship regime had not been geared to his individual case but had entailed restrictions automatically imposed on anyone who had been declared incapable by a judge. He added that the fact of having to live in the Pastra social care home had effectively barred him from taking part in community life and from developing relations with persons of his choosing. The authorities had not attempted to find alternative therapeutic solutions in the community or to take measures that were less restrictive of his personal liberty, with the result that he had developed “institutionalisation syndrome”, that is, the loss of social skills and individual personality traits. 251. The Government contested those allegations. 252. Having regard to its conclusions under Articles 3, 5, 6 and 13 of the Convention, the Court considers that no separate issue arises under Article 8 of the Convention taken alone and/or in conjunction with Article 13. It is therefore unnecessary to examine this complaint. VII. ARTICLES 46 AND 41 OF THE CONVENTION A. Article 46 of the Convention 253. 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.” 254. The Court reiterates that by Article 46 of the Convention the Contracting Parties have undertaken to abide by the final judgments of the Court in any case to which they are parties, execution being supervised by the Committee of Ministers. It follows, inter alia, that a judgment in which the Court finds a 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 their domestic legal order to put an end to the violation found by the Court and to redress as far as possible the effects (see Menteş and Others v. Turkey (Article 50), 24 July 1998, § 24, Reports 1998-IV; Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000-VIII; and Maestri v. Italy [GC], no. 39748/98, § 47, ECHR 2004-I). The Court further notes that 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 to discharge its obligation under Article 46 of the Convention (see Scozzari and Giunta, cited above; 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). 255. However, with a view to helping the respondent State to fulfil its obligations under Article 46, the Court may seek to indicate the type of individual and/or general measures that might be taken in order to put an end to the situation it has found to exist (see Broniowski v. Poland [GC], no. 31443/96, § 194, ECHR 2004-V, and Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 148, 17 September 2009). 256. In the instant case the Court considers that it is necessary, in view of its finding of a violation of Article 5, to indicate individual measures for the execution of this judgment. It observes that it has found a violation of that Article on account of the failure to comply with the requirement that any deprivation of liberty must be “in accordance with a procedure prescribed by law” and the lack of justification for the applicant’s deprivation of liberty under sub-paragraph (e) or any of the other sub-paragraphs of Article 5 § 1. It has also noted deficiencies in the assessment of the presence and persistence of any disorders warranting placement in a social care home (see paragraphs 148-60 above). 257. The Court considers that in order to redress the effects of the breach of the applicant’s rights, the authorities should ascertain whether he wishes to remain in the home in question. Nothing in this judgment should be seen as an obstacle to his continued placement in the Pastra social care home or any other home for people with mental disorders if it is established that he consents to the placement. However, should the applicant object to such placement, the authorities should re-examine his situation without delay in the light of the findings of this judgment. 258. The Court notes that it has also found a violation of Article 6 § 1 on account of the lack of direct access to a court for a person who has been partially deprived of legal capacity with a view to seeking its restoration (see paragraphs 233-48 above). Having regard to that finding, the Court recommends that the respondent State envisage the necessary general measures to ensure the effective possibility of such access. B. Article 41 of the Convention 259. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 1. Damage 260. The applicant did not submit any claims in respect of pecuniary damage but sought 64,000 euros (EUR) for non-pecuniary damage. 261. He asserted in particular that he had endured poor living conditions in the social care home and claimed a sum of EUR 14,000 on that account. In respect of his placement in the Pastra social care home, he stated that he had experienced feelings of anxiety, distress and frustration ever since that measure had begun to be implemented in December 2002. His enforced placement in the home had also had a significant impact on his life as he had been removed from his social environment and subjected to a very restrictive regime, making it harder for him to reintegrate into the community. He submitted that although there was no comparable case-law concerning unlawful detention in a social care home for people with mental disorders, regard should be had to the just satisfaction awarded by the Court in cases involving unlawful detention in psychiatric institutions. He referred, for example, to the judgments in Gajcsi v. Hungary (no. 34503/03, §§ 28-30, 3 October 2006) and Kayadjieva v. Bulgaria (no. 56272/00, § 57, 28 September 2006), while noting that he had been deprived of his liberty for a considerably longer period than the applicants in the above-mentioned cases. He submitted that a sum of EUR 30,000 would constitute an equitable award on that account. Lastly, he added that his lack of access to the courts to seek a review of his legal status had restricted the exercise of a number of freedoms in the sphere of his private life, causing additional non-pecuniary damage, for which an award of EUR 20,000 could provide redress. 262. The Government submitted that the applicant’s claims were excessive and unfounded. They argued that if the Court were to make any award in respect of non-pecuniary damage, it should not exceed the amounts awarded in judgments against Bulgaria concerning compulsory psychiatric admission. The Government referred to the judgments in Kayadjieva (cited above, § 57), Varbanov (cited above, § 67), and Kepenerov v. Bulgaria (no. 39269/98, § 42, 31 July 2003). 263. The Court observes that it has found violations of several provisions of the Convention in the present case, namely Articles 3, 5 (§§ 1, 4 and 5), 6 and 13. It considers that the applicant must have endured suffering as a result of his placement in the home, which began in December 2002 and is still ongoing, his inability to secure a judicial review of that measure and his lack of access to a court to apply for release from partial guardianship. This suffering undoubtedly aroused in him a feeling of helplessness and anxiety. The Court further considers that the applicant sustained non-pecuniary damage on account of the degrading living conditions he had to endure for more than seven years. 264. Ruling on an equitable basis, as required by Article 41 of the Convention, the Court considers that the applicant should be awarded an aggregate sum of EUR 15,000 in respect of non-pecuniary damage. 2. Costs and expenses 265. The applicant did not submit any claims in respect of costs and expenses. 3. Default interest 266. 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 5 § 1 (right to liberty and security) of the Convention, in that the applicant had been illegally detained in the institution in question. It observed in particular that the decision to place the applicant had not been lawful within the meaning of Article 5 § 1 of the Convention since none of the exceptions provided for in that Article were applicable, including Article 5 § 1 (e) – deprivation of liberty of a “person of unsound mind”. The period that had elapsed between the expert psychiatric assessment relied on by the authorities and the applicant’s placement in the home, during which time his guardian had not checked whether there had been any change in his condition and had not met or consulted him had furthermore been excessive and a medical opinion issued in 2000 could not be regarded as a reliable reflection of the state of the applicant’s mental health at the time of his placement in the home (in 2002). The Grand Chamber further held that there had been a violation of Article 5 § 4 (right to have lawfulness of detention decided speedily by a court) of the Convention, concerning the impossibility for the applicant to bring proceedings to have the lawfulness of his detention decided by a court, and a violation of Article 5 § 5 (right to compensation) concerning the impossibility for him to apply for compensation for his illegal detention and the lack of review by a court of the lawfulness of his detention. |
725 | Access to court | RELEVANT LEGAL FRAMEWORK AND PRACTICE 17. Section 1:2(1) of the General Administrative Law Act defines “interested parties” as persons (including legal entities) whose interest is directly affected by a decision ( besluit ). That interest should be the person concerned’s own, rather than an idealistic or general interest; it should also be objectively determinable, current and personal. A “decision” as referred to above is a decision in writing taken by an administrative authority ( bestuursorgaan ) constituting a legal act governed by public law ( publiekrechtelijke rechtshandeling; section 1:3(1) of the General Administrative Law Act). 18. The rules governing the publication of draft decisions and decisions are set out in chapter 3 of the General Administrative Law Act. Sub ‑ chapter 3.4 of that Act, which provides for public participation in decision-making by administrative authorities, applies to the preparation of decisions if this is determined by law or decided by the administrative authority concerned. 19. Section 3:11(1) of the General Administrative Law Act, which is set out in sub-chapter 3.4, provides that the administrative authority must deposit a draft decision for public inspection ( terinzagelegging ), together with the relevant documents which are reasonably necessary to assess the draft. Section 3:12(1) of sub-chapter 3.4 lays down the manner in which a deposition for inspection is to be notified to the public. It provides that, prior to such deposition, the administrative authority must give notice of the draft decision in one or more daily or weekly newspapers or free local papers or in some other suitable manner. Only the substance of the draft decision need be stated. Under section 3:15(1) of sub-chapter 3.4, interested parties within the meaning of section 1:2(1) (see paragraph 17 above) may submit their views on the draft decision to the administrative authority, either orally or in writing. An interested party who has not submitted his or her views on the draft decision, for which failure he or she can reasonably be reproached, cannot appeal to a court against the actual decision (section 6:13 of the General Administrative Law Act). 20. Section 42(3) of the 1998 Nature Conservation Act, which concerns the manner in which a decision taken under that Act is to be notified to the public, reads as follows: “The authority authorised to grant a permit in accordance with sections 16 and 19 shall publish the notification of a decision to grant, modify or withdraw a permit in one or more daily or weekly newspapers or free local papers or in some other suitable manner. Only the substance of the draft decision need be stated.” 21. A notification of a (draft) decision is a communication within the meaning of section 2:14 of the General Administrative Law Act, according to the drafting history of this provision. The first paragraph of the provision provides that an administrative authority may send a communication which is addressed to one or more specific individual(s) by electronic means to those addressees who have indicated that they can be properly contacted in that manner. As regards communications not addressed to one or more specific persons, section 2:14(2) provides that, unless otherwise provided by law, they should not be sent solely by electronic means. 22. In a judgment of 15 August 2012 (ECLI:NL:RVS:2012:BX4676), the Administrative Jurisdiction Division held that notifying a draft decision via the Internet constituted a suitable manner of notification within the meaning of section 3:12(1) of the General Administrative Law Act. However, it followed from section 2:14(2) of that Act that draft decisions had also to be notified in at least one non ‑ electronic manner, unless a statutory provision providing otherwise was in force. 23. On a proposal from the Provincial Executive, the Electronic Notification Ordinance was adopted by the Gelderland Provincial Council ( Provinciale Staten ) on 26 September 2012 in order to provide a statutory basis for the practice, which had been in existence since 1 October 2011, of publishing notifications of decisions taken by an administrative authority of Gelderland Province solely by electronic means. The explanatory notes ( toelichting ) to the proposal stated, inter alia, that this new method of publication of notifications had been brought to the attention of the public through various advertisements in local newspapers in the second half of 2011. In view of the level of computer ownership in the Netherlands, the explanatory notes concluded that the reach of electronic publication was likely to be larger than that of traditional publication on paper in free local newspapers. Notification by electronic means would, in practice, mean that notifications not addressed to one or more specific individuals would be made available for consultation on the Internet, for example via the website of Gelderland Province. 24. Notification of the adoption of the Electronic Notification Ordinance, as well as the text of the Ordinance, was published in the Gelderland Provincial Bulletin ( Provinciaal blad van Gelderland ) of 27 September 2012. Notification of that adoption was also published in the Official Gazette ( Staatscourant ) of 10 October 2012. That publication pointed out that the text of the Ordinance could be found on the Gelderland provincial website and that the Ordinance provided a legal basis for the practice, in force since 1 October 2011, of publishing notifications relating to provincial decision-making solely by electronic means and no longer in local newspapers. 25. Section 2(1) of the Electronic Notification Ordinance provides that it is permissible for notifications of announcements ( meldingen ), applications ( aanvragen ), draft decisions ( ontwerpbesluiten ) and decisions ( besluiten ) to be published solely by electronic means. 26. Pursuant to section 6:11 of the General Administrative Law Act an objection ( bezwaar ) or appeal which is lodged after the expiry of the time ‑ limit set for that purpose will not be declared inadmissible for that reason if it cannot reasonably be held that the person who lodged it was at fault. THE LAW ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 27. The applicants complained that the publication of the notifications of both the draft decision and the decision of the Provincial Executive solely by electronic means had breached their right of access to a court as provided in Article 6 § 1 of the Convention, the relevant parts of which provide: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” Admissibility 28. In their submissions, the Government accepted the applicability of Article 6 of the Convention, as the outcome of the domestic proceedings had affected the applicants’ civil rights, notably their rights deriving from the right to property. 29. The applicants maintained that their civil rights had been at issue, as the decision had disrupted their quality of life, inter alia as a result of the noise pollution. It had also reduced the value of their properties and had thus had pecuniary consequences for them. Lastly, they submitted that their right to a healthy environment had been affected. 30. The Court considers that the applicants’ claims relating to general environmental harm do not concern their “civil rights” within the meaning of Article 6 of the Convention. However, other issues raised by the applicants, in particular the effects of the expansion of the activities at the motocross track on their properties and land, do relate to their “civil rights”. Furthermore, the domestic proceedings initiated by the applicants concerned the authorities’ decision to permit the expansion of those activities and were decisive for those rights (see Karin Andersson and Others v. Sweden, no. 29878/09, § 46, 25 September 2014). The Government did not dispute this. Moreover, it cannot be said that the aforementioned effects on their property and land were mere remote consequences (see, a contrario, Athanassoglou and Others v. Switzerland [GC], no. 27644/95, §§ 43 and 46-55, 6 April 2000 ). 31. Having regard to the above considerations, the Court finds that Article 6 applies to the present case under its civil limb. 32. The Court further notes that this complaint is neither manifestly ill ‑ founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. MeritsThe parties’ submissions The parties’ submissions The parties’ submissions (a) The applicants 33. The applicants submitted that, as they had been unaware of the decision to extend the opening hours of the motocross track, they had been deprived of the possibility to appeal in time to the domestic courts. They argued that the publication of the notification solely by electronic means had impaired the essence of the right to appeal, because not all citizens had access to a computer or the Internet. Electronic publication did not have the same reach as printed publication. Citizens who did have access to the Internet could not be expected to monitor all governmental websites on a regular basis. The applicants pointed out that citizens had to search actively for electronic notifications, which was not the case for notifications published in local and national newspapers. 34. In addition, they submitted that the Dutch system of electronic publication of notifications was highly opaque and arbitrary and that there was an insufficiently clear basis in law for electronic publication. In that regard, they pointed out that the Electronic Notification Ordinance (see paragraphs 23-25 above) did not determine where electronic notifications were to be published and did not clarify whether or not the Provincial Executive would opt for this method of publication for all their (draft) decisions. The applicants also submitted that they had provided screenshots showing that the notifications of the draft decision and the actual decision had been published not on the Gelderland provincial website, as indicated by the Government, but on an entirely different website. 35. The applicants submitted, furthermore, that the restriction of their right of access to a court had not served a legitimate aim. Electronic publication of notifications made the Government less accessible for citizens and thus had the opposite effect to that aimed for. 36. Lastly, the applicants argued that in general there was no proportionality between the complete abandonment of publication of notifications on paper and the aim pursued by the Government. Instead of completely abandoning notifications in local or national newspapers, less far-reaching measures were conceivable to facilitate easier and faster communication between citizens and the administrative authorities. In the specific circumstances of the present case, the restriction had thus also been disproportionate. (b) The Government 37. The Government argued that the right of access to a court had not been limited, because the rules governing the procedure that applied to legal remedies were intended to ensure the proper administration of justice and compliance with the principle of legal certainty. Pursuant to the legal framework in force, the notification of both the draft and the final decision had been published on the provincial website and had provided relevant information relating, inter alia, to the possibilities for submitting views and lodging an appeal. Given the high level of computer ownership and Internet penetration in the Netherlands – in 2013, according to the national statistical office, Statistics Netherlands ( Centraal Bureau voor de Statistiek ), 92.8% of citizens over the age of 12 had had access to the Internet – electronic publication could reach a far larger audience than publication in a local or national newspaper or on official notice boards. While it was true that the Internet did not provide 100% coverage, the same held true for local newspapers or notices posted at provincial offices. 38. Even if publishing notifications exclusively on the Internet were to be considered as a limitation of the right of access to a court, this means of publication did not impair the very essence of the right, for the reasons set out in the previous paragraph. It also pursued a legitimate aim in that it ensured easier and faster communication between citizens and administrative authorities. In that context the Government were of the opinion that electronic communication between citizens and administrative authorities could contribute substantially to ensuring more accessible and more effective governance. Furthermore, electronic publication complied with the requirement of proportionality, both in general and in the instant case. While it did not differ from other means of publication in that there was always a risk of information not being seen by everyone or not being seen in time, electronic publication actually offered particular advantages, as it allowed citizens to access notifications at any time and from almost anywhere. People who did not have an Internet connection at home could access the Internet in public spaces, such as provincial or municipal offices or libraries. 39. As regards the present case, the Government submitted that it had been foreseeable for the applicants that notifications of decisions of the Gelderland Provincial Executive would be published solely on the Internet. Since 2011 the Province of Gelderland had exclusively used electronic publication to notify decisions, and this new method of publication had been made public. The notification of the adoption of the Electronic Notification Ordinance had been published in the Official Gazette and the Gelderland Provincial Bulletin (see paragraph 24 above). The Government further explained that until 2016 all publications had appeared on the Gelderland provincial website. As regards the applicant foundation, the Government noted that it could not be considered a vulnerable party without access to the Internet and that, in order to be informed of decisions affecting its living area, it only needed to monitor the electronic publication of notifications by the municipality of Heerde, the Province of Gelderland and the District Water Board ( waterschap ). 40. Finally, the Government described a number of subsequent developments in the Netherlands. Since 2016 all notifications had been published on the national governmental website, which provided information on services for persons and businesses, official publications and national, local and regional legislation. It also offered an alert service for notifications of administrative authorities’ activities to which citizens could subscribe. (c) The third-party intervener 41. The third-party intervener APEDANICA – an NGO set up in Madrid in 1992 which strives to improve citizens’ lives across Europe and the Americas as regards their relationship with information and communication technology and to safeguard them against dangers brought about by misuse of such technologies – submitted that digitalisation, in principle, improved the participation of citizens in decision ‑ making. However, according to this NGO, the results concerning e-participation in the Netherlands were unsatisfactory. In that context APEDANICA drew attention to the fact that although not all citizens in the Netherlands had Internet access, nor were they legally obliged to have such access, the Government published legally binding decisions on the Internet without also using other non ‑ electronic means. The Court’s assessment (a) General principles 42. The relevant principles concerning the right of access to a court – that is, the right to institute proceedings before the courts in civil matters – were summarised in the case of Naït-Liman v. Switzerland ([GC], no. 51357/07, §§ 112-16, 15 March 2018). 43. The Court has held that the right of access to court under Article 6 § 1 of the Convention entails the entitlement to receive adequate notification of administrative and judicial decisions, which is of particular importance in cases where an appeal may be sought within a specified time ‑ limit (see, mutatis mutandis, Šild v. Slovenia (dec.), no. 59284/08, § 30, 17 September 2013). 44. According to the Court’s established case-law, however, the right of access to a court 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, which enjoys a certain margin of appreciation in this regard. However, those limitations must not restrict the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6 § 1 of the Convention if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see Naït-Liman, cited above, §§ 114-15). The Court has further held that the right of access to a court is impaired when the rules cease to serve the aims of legal certainty and the proper administration of justice and form a sort of barrier preventing the litigant from having his or her case determined on the merits by the competent court (see Zubac v. Croatia [GC], no. 40160/12, § 98, 5 April 2018). 45. The task of the Court is not to review the relevant law and practice in abstracto, but to determine whether the manner in which the law and practice were applied to or affected an applicant amounted to a denial of access to a court in the circumstances of the case (see, amongst other authorities, Zavodnik v. Slovenia, no. 53723/13, § 74, 21 May 2015). Its role in cases such as the present is to determine whether the applicants were able to count on a coherent system that struck a fair balance between the authorities’ interests and their own. The Court must ascertain whether the applicants had a clear, practical and effective opportunity to challenge the administrative act concerned (see Geffre v. France (dec.), no. 51307/99, ECHR 2003 ‑ I (extracts), and Lay Lay Company Limited v. Malta, no. 30633/11, § 56, 23 July 2013). (b) Application of those principles in the present case 46. The Court notes that notification of both the intention of the Provincial Executive to issue a new permit to the motocross association and of its decision to that effect was given solely by electronic means. It was possible for interested parties within the meaning of Section 1:2(1) of the General Administrative Law Act (see paragraph 17 above) to lodge an appeal against that decision, provided they had first submitted their views on the draft decision (see paragraph 19 above). Both the submission of views and the lodging of an appeal were subject to a time-limit (see paragraphs 9-10 above). 47. While it is not for the Court to determine the manner in which notifications of the type at issue are to be published, it follows from the abovementioned principles that where an appeal lies against a decision by an administrative authority which may be to the detriment of directly affected third parties, a system needs to be in place enabling those parties to take cognisance of such a decision in a timely fashion. This requires that the decision, or relevant information about it, be made available in a pre ‑ determined and publicised manner that is easily accessible to all potentially directly affected third parties. Provided sufficient safeguards are in place to achieve such accessibility, it falls in principle within the State’s margin of appreciation to opt for a system of publication solely by electronic means. 48. Turning to the facts of the present case, the Court finds, firstly, that the Provincial Executive’s use of electronic means for publishing notifications was sufficiently coherent and clear for the purpose of allowing third parties to become aware of decisions that could potentially directly affect them. Thus, at the relevant time, a statutory provision – section 2(1) of the Electronic Notification Ordinance – provided for the possibility of notifying the Provincial Executive’s (draft) decisions solely by electronic means (see paragraph 25 above). The notification of the adoption of the Ordinance had been published in the Official Gazette, and the text of the Ordinance had been published in the Gelderland Provincial Bulletin as well as on the provincial website (see paragraph 24 above). Moreover, the Electronic Notification Ordinance codified a practice which had been in place since 1 October 2011, and to which the attention of the public had been drawn by means of advertisements in local newspapers at the time (see paragraph 23 above). 49. It is further noted that the text of the Electronic Notification Ordinance did not explicitly indicate where notifications were to be published online; however, the explanatory notes to the Ordinance stated that notifications could be published on the Gelderland provincial website (see paragraph 23 above) and, as submitted by the Government (see paragraph 39 above), notifications of the type at issue had indeed been published on that website until 2016. Although the applicants disputed, both at the domestic level and before this Court, whether the notifications of the draft decision and of the actual decision had been published on the provincial website (see paragraphs 11 and 34 above), the Court notes that the Administrative Judicial Division had found it sufficiently established, in the light of the arguments and evidence submitted to it, that the notifications had been published on that website (see paragraph 16 above). In this connection the Court reiterates that, in accordance with Article 19 of the Convention, its sole 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 allegedly committed by a national court or to substitute its own assessment for that of the national courts unless and in so far as they may have infringed rights and freedoms protected by the Convention. Accordingly, the Court cannot question the assessment of the domestic courts on this issue unless there is clear evidence of arbitrariness, of which there is no appearance in the instant case (see, among many other authorities, Sisojeva and Others v. Latvia (striking out) [GC], no. 60654/00, § 89, ECHR 2007 ‑ I, and Kononov v. Latvia [GC], no. 36376/04, § 189, ECHR 2010 ). 50. The Court accepts the Government’s submission that electronic communication between the administrative authorities and citizens may contribute to the aim of a more accessible and better functioning administration (see paragraph 38 above). It must ascertain whether, given the facts of the case, a fair balance was struck between, on the one hand, the interest of the community as a whole in having a more modern and efficient administration and, on the other hand, the interests of the applicants. 51. The Court observes that, under Dutch law, notifications that are addressed to specific individuals may only be published solely by electronic means when the individuals concerned have indicated that they can be adequately reached in that manner (see section 2 (14)(1), quoted in paragraph 21 above). Given that decisions of administrative authorities may, in addition, potentially concern a large number of interested parties who it may not be possible to identify in advance, the Court agrees with the Government that electronic notification of administrative authorities’ decisions by electronic means may enable a large proportion of the general public to become acquainted with those decisions. In that regard, the Court observes that Dutch law specifies that restricting the publication of notifications that are not addressed to specific individuals exclusively by electronic means is only permitted when a statutory basis exists for it (see section 2 (14)(2), also quoted paragraph 21 above). 52. The Court considers that it must nevertheless be borne in mind that a practice of notifying the public solely by electronic means of decisions that may potentially affect them and against which they may wish to object or appeal runs the risk of not reaching citizens who do not have access to the Internet or who are computer illiterate. It can, however, not be overlooked that in 2013 the Internet penetration rate in the Netherlands was high, with more than 92 percent of citizens over the age of 12 having access to it (see paragraph 37 above). Moreover, the applicants in the present case have not argued that they themselves did not have access to a computer or to the Internet or that they were computer illiterate and that they were, for that or those reasons, unable to find the (draft) decisions online (see, in contrast, Zavodnik, cited above, § 79). In those circumstances, the Court is not persuaded by the applicants’ argument to the effect that publishing the notifications of the draft decision and the decision in a free local newspaper would have provided better safeguards of reaching potentially affected parties than publishing on the Gelderland provincial website (see paragraph 33 above). In that context it notes once more that notifications of this type have already been published solely by electronic means since 1 October 2011, and that this practice was publicised in local newspapers at the time of its introduction (see paragraph 23 above). The fact that this announcement had apparently escaped the applicants’ attention supports the Government’s contention that publications in local newspapers also do not constitute an infallible method of reaching every potentially affected party (see paragraph 37 above). The Court considers that it was not unrealistic to expect the applicants to consult the provincial website regularly for notifications of (draft) decisions that might affect them (see, mutatis mutandis and to converse effect, Zavodnik, cited above, § 80). 53. In the present case, the Court is therefore satisfied that the system of electronic publication used by the Gelderland Provincial Executive constituted a coherent system that struck a fair balance between the interests of the community as a whole and the applicants. The applicants have not put forward any arguments that would allow the Court to conclude that they were not afforded a clear, practical and effective opportunity to comment on the draft decision and to challenge the decision given by the Provincial Executive. In the light of all the circumstances of the case and the safeguards identified, the Court finds that the national authorities did not exceed the margin of appreciation afforded to the State under the Convention (see paragraph 47 above) and that the applicants have not suffered a disproportionate restriction of their right of access to a court. 54. There has accordingly been no violation of Article 6 § 1 of the Convention. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 55. The applicants complained that publishing the notifications exclusively by electronic means had been 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.” 56. The Government submitted that the applicants had not complied with the requirement of exhaustion of domestic remedies as they had failed to submit any views on the draft decision and had lodged their appeal against the decision out of time. They argued that in order to meet the requirements of Article 35 § 1 of the Convention, an applicant must comply with the applicable rules and procedures of domestic law. 57. The applicants argued that in the national proceedings they had implicitly relied on the protection of Article 8 and had thus exhausted domestic remedies. 58. The Court considers that it is not necessary to examine whether Article 8 of the Convention applies to the present case as this complaint is in any event inadmissible for the following reasons. 59. The Court reiterates that under Article 35 of the Convention, it may only deal with applications after all domestic remedies have been exhausted (see, for a recollection of the general principles in this respect, Vučković and Others v. Serbia [GC] (preliminary objection), nos. 17153/11 and 29 others, §§ 69-77, 25 March 2014). According to its consistent case-law, that condition is not satisfied if a remedy has been declared inadmissible for failure to comply with a formal requirement (see Barbara Wiśniewska v. Poland, no. 9072/02, § 76, 29 November 2011, and Ben Salah Adraqui and Dhaime v. Spain (dec.), no. 45023/98, 27 April 2000). 60. The Court observes that the applicants’ appeal to the Administrative Jurisdiction Division was declared inadmissible for having been lodged out of time (see paragraph 16 above). The applicants thus failed to comply with the formal requirements for introducing a relevant remedy concerning their complaint under Article 8, which they then brought before this Court. Accordingly, the Government’s objection of failure to exhaust domestic remedies must be upheld. 61. It follows that this part of the application must be rejected as inadmissible pursuant to Article 35 §§ 1 and 4 of the Convention. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 62. Lastly, the applicants complained that, as regards their complaint under Article 6, they had not had an effective remedy within the meaning of 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.” 63. The Court reiterates that where the right claimed is a civil right, the role of Article 6 § 1 in relation to Article 13 is that of a lex specialis, the requirements of Article 13 being absorbed by those of Article 6 § 1 (see, among other authorities, British-American Tobacco Company Ltd v. the Netherlands, 20 November 1995, § 89, Series A no. 331, and Berger-Krall and Others v. Slovenia, no. 14717/04, § 327, 12 June 2014 ). Consequently, it is not necessary to examine separately the admissibility and merits of the complaint under Article 13. | The Court held that there had been no violation of Article 6 § 1 of the Convention in the present case, finding, in light of all the circumstances and the safeguards identified, that the national authorities had not exceeded the margin of appreciation afforded to the State and that the applicants had not suffered a disproportionate restriction of their right of access to court. It noted, in particular, that the system of electronic publication used by the Provincial Executive had constituted a coherent system that had struck a fair balance between the interests of the community as a whole in having a more modern and efficient administration and the applicants. In the Court’s view, there was no indication that the applicants had not been afforded a clear, practical and effective opportunity to comment on the draft decision and to challenge the decision given by the Provincial Executive. |
671 | Professionals | II. RELEVANT DOMESTIC LAW 43. The relevant provisions of the Penal Code of 22 May 1902 ( straffeloven ), in force at the relevant time, provided as follows: Article 246 “Any person who by words or deeds unlawfully defames another person, or who aids and abets thereto, shall be liable to a fine or imprisonment for up to six months.” Article 247 “Any person who by words or deeds behaves in a manner that is likely to harm another person’s good name and reputation or to expose him to hatred, contempt or loss of the trust necessary for his position or business, or who aids and abets thereto, shall be liable to a fine or imprisonment for up to one year. If the defamation is committed in print or in broadcasting or otherwise under especially aggravating circumstances, imprisonment for up to two years may be imposed.” A limitation to the applicability of Article 247 arose from the requirement that the expression had to be unlawful ( rettsstridig ). While this was expressly stated in Article 246, Article 247 had been interpreted by the Supreme Court to include such a requirement. Article 390a “Any person who by frightening or annoying behaviour or other inconsiderate conduct violates another person’s right to privacy, or who aids and abets thereto, shall be liable to a fine or imprisonment for up to two years. ...” 44. Section 3-6 of the Compensation Act of 13 June 1969 ( skadeserstatningsloven ) reads: “Anybody who commits libel or slander or infringes the privacy of another person shall, if he has been negligent or the conditions for imposing a punishment are fulfilled, pay compensation for the damage sustained and such compensation for loss of future earnings as the court finds reasonable with due regard to the degree of guilt and other circumstances. He may also be ordered to pay such compensation (redress) for non-pecuniary damage as the court finds reasonable. If the offence takes the form of libel, and anybody who has acted in the service of the owner or publisher of the printed matter is responsible under the preceding paragraph, the owner and publisher shall also be liable to compensation. The same rule applies to any redress imposed under the preceding paragraph, unless the court for special reasons decides to exempt them. The owner or publisher may also be ordered to pay such additional redress as the court finds reasonable in respect of them. The Norwegian Broadcasting Corporation is similarly liable when anybody acting in its service is responsible under the preceding paragraph for a broadcast. The same rule applies to any other broadcasting institution. In pronouncing a judgment which imposes a punishment or declares a statement void, the court may order the defendant to pay the victim an amount covering the costs of publishing the judgment. The same rule applies in the case of any conviction under § 130 of the General Civil Penal Code. ...” 45. Section 18 of the E-Commerce Act of 23 May 2003 ( ehandelsloven ) reads: Section 18 Exemption from liability for certain storage services “A service provider who stores information at the request of a service recipient, may only (a) be punished for storing unlawful information or contribution to unlawful activities by storing unlawful information if he has acted with intent, or (b) be held liable to pay compensation for storing unlawful information or contribution to unlawful activities by storing unlawful information if he has acted with intent or gross negligence. The service provider is in any event exempt from criminal or civil liability if he without undue delay takes necessary measures to remove or block access to the information upon the intent or gross negligence under the first paragraph having appeared. A service provider is not exempt from liability pursuant to this section if the service recipient is acting on behalf of the service provider or under his control.” 46. The two first paragraphs of section 8a of the Gender Equality Act of 9 June 1978 ( likestillingsloven ), in force at the relevant time, provided: Section 8a (Harassment on the basis of gender and sexual harassment) “Harassment on the basis of gender and sexual harassment is not permitted. ‘Harassment on the basis of gender’ means unwanted behaviour connected to a person’s gender and which has the effect or as purpose to harm another person’s dignity. ‘Sexual harassment’ means unwanted sexual attention that is troublesome to the person receiving the attention.” Pursuant to the second paragraph of section 17, the general rules on civil liability applied to intentional or negligent infringements of the Gender Equality Act. 47. The relevant sections of the Dispute Act of 17 June 2005 ( tvisteloven ) read: Section 20-2 Award of costs to the successful party “(1) A party who is successful in an action is entitled to full compensation for his legal costs from the opposing party. ... (3) The court may exempt the opposing party from liability for legal costs in whole or in part if the court finds that there are compelling grounds to justify an exemption. The court shall, in particular, have regard to: (a) whether there was justifiable cause to have the case heard because the case was uncertain or because the evidence was clarified only after the action was brought, (b) whether the successful party can be reproached for bringing the action or whether he has rejected a reasonable offer of settlement, or (c) whether the case is important to the welfare of the party and the relative strength of the parties justifies an exemption.” Section 20-5 Assessment of compensation for costs “(1) Full compensation for costs shall cover all necessary costs incurred by the party in relation to the action, unless there is cause to exclude the costs pursuant to special provisions. In assessing whether costs have been necessary, the court shall have regard to whether it was reasonable to incur them in view of the importance of the case. The party may claim reasonable remuneration for his own work on the case if the work has been particularly extensive or would otherwise have had to be undertaken by counsel or another qualified assistant. ... (3) In cases that are decided following an oral hearing, a party who claims costs shall submit a statement of costs. The statement shall be submitted at the conclusion of the court hearing. If the amount of some items is unknown, the statement shall be supplemented within the time-limit fixed by the court. Items of expenditure shall be specified so as to give the court an adequate basis upon which to make an assessment. Lawyers’ fees shall always state the amount and number of hours related to the following stages of the case: (a) the period up to the submission of a writ of summons or reply, alternatively notice of appeal and reply to notice of appeal, (b) the period up to the start of the main hearing or oral finalisation of the case, alternatively the appeal hearing, and (c) the period up to the conclusion of the case at the current instance. ...” THE LAW ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 48. The applicant complained that the domestic authorities, by not sufficiently protecting her right to respect for her private life and requiring her to pay litigation costs to the extent seen in her case, had acted contrary 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.” 49. The Government contested that argument. A. Admissibility 50. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties’ submissions (a) The applicant 51. The applicant submitted that the comments in question had clearly been unlawful and that the domestic courts had not undertaken the exercise of balancing the rights protected by Articles 8 and 10, respectively. 52. The applicant acknowledged that the inheritance case had been in the public interest, but argued that the articles published by Hegnar Online and the two other publications had not been balanced. Reference was made to the statement by the Press Complaints Commission to the effect that Kapital and Finansavisen had breached the code of conduct for journalists. 53. Although Hegnar Online had established a system with a “warning button” and some members of staff had been tasked with monitoring content on the forum, this had clearly been insufficient. The system had been incapable of handling the large amount of comments posted on it. 54. The applicant had not been in any position to identify the anonymous commenters; she would have needed to contact the police and report the incidents, but even then the discovery of their identity would not have been guaranteed. 55. Recognising that liability for third-party comments might have some negative consequences for freedom of expression on the Internet, the applicant maintained that the website in the present case was one of the biggest platforms and debate forums in Norway and that liability would not have any significant negative impact. 56. The requirement for the applicant to pay the defendants’ legal costs of approximately EUR 49,964 (including interest) in the domestic proceedings formed a separate reason why there had been a breach of Article 8 of the Convention. (b) The Government 57. The Government argued that the comments in question had not attained such a level of seriousness or been carried out in such a manner as to have caused prejudice to the personal enjoyment of the right to respect for private life. 58. The media coverage of the inheritance case had formed the background for the instant case and the applicant was, inter alia, a well ‑ known lawyer, a former talk show host and had previously been active in public debate. The City Court’s assessment of the context of the comments had been in line with the European Court of Human Rights’ case ‑ law in respect of Article 8 of the Convention. 59. The High Court had examined the measures applied by the defendants in the domestic proceedings in order to prevent or remove the defamatory comments, and had assessed those measures in a manner consistent with the criteria developed by the Court. 60. The Government did not dispute that the impugned comments had been made by anonymous posters and that there had not, at the time, been a system for registering users. The applicant had not taken any steps to discover the identities of the posters. 61. The Court’s assessment in the case of Pihl v. Sweden ((dec.), no. 74742/14, 7 February 2017) and the similarities to that case weighed clearly in favour of the overall conclusion that there had been no violation in the instant case. 62. With respect to the litigation costs, the Government submitted that Article 6 § 1 of the Convention was lex specialis and that Article 8 could therefore not come into play. The case of MGN Limited v. the United Kingdom (no. 39401/04, 18 January 2011) was factually different and concerned Article 10; its rationale could not be applied to Article 8. The domestic courts had performed a balancing act in accordance with the Dispute Act which had been in line with the obligation to secure access to the courts and which had not disclosed any unreasonable lack of proportionality between the aims pursued and the means employed. 2. The Court’s considerations 63. The Court reiterates 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). It has also 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 (see Bédat v. Switzerland [GC], no. 56925/08, § 72, ECHR 2016, with further references). 64. In order for Article 8 of the Convention 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 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 Denisov v. Ukraine [GC], no. 76639/11, § 112, 25 September 2018). 65. The Court observes that what is at issue in the present case is not an act by the State but the alleged inadequacy of the protection afforded by the domestic courts to the applicant’s private life. While the essential object of Article 8 of the Convention is 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 negative undertaking, there may be positive obligations inherent in effective respect for private or family life. These obligations may also involve the adoption of measures designed to secure respect for private life even in the sphere of the relations of individuals between themselves. 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, §§ 98-99, ECHR 2012). 66. In this respect, as concerns competing interests under Article 8 and Article 10 of the Convention, the Court has established the following general principles, as summarised in Delfi AS, cited above, § 139: “The Court has found that, as a matter of principle, the rights guaranteed under Articles 8 and 10 deserve equal respect, and the outcome of an application should not, in principle, vary according to whether it has been lodged with the Court under Article 10 of the Convention by the publisher of an offending article or under Article 8 of the Convention by the person who has been the subject of that article. Accordingly, the margin of appreciation should in principle be the same in both cases (see Axel Springer AG, cited above, § 87, and Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 106, ECHR 2012, with further references to the cases of Hachette Filipacchi Associés, cited above, § 41; Timciuc v. Romania (dec.), no. 28999/03, § 144, 12 October 2010; and Mosley v. the United Kingdom, no. 48009/08, § 111, 10 May 2011). Where the balancing exercise between those two rights has been undertaken by the national authorities in conformity with the criteria laid down in the Court’s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts (see Axel Springer AG, cited above, § 88, and Von Hannover (no. 2), cited above, § 107, with further references to MGN Limited, cited above, §§ 150 and 155, and Palomo Sánchez and Others v. Spain [GC], nos. 28955/06, 28957/06, 28959/06 and 28964/06, § 57, 12 September 2011). In other words, there will usually be a wide margin afforded by the Court if the State is required to strike a balance between competing private interests or competing Convention rights (see Evans v. the United Kingdom [GC], no. 6339/05, § 77, ECHR 2007 ‑ I; Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 113, ECHR 1999 ‑ III; and Ashby Donald and Others v. France, no. 36769/08, § 40, 10 January 2013).” 67. In making this proportionality assessment, the Court has also identified the following specific aspects of freedom of expression as being relevant for the concrete assessment of the interference in question: the context of the comments, the measures applied by the company in order to prevent or remove defamatory comments, the liability of the actual authors of the comments as an alternative to the intermediary’s liability, and the consequences of the domestic proceedings for the company (see Delfi AS, cited above, §§ 142-143 and Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt v. Hungary, no. 22947/13, § 69, 2 February 2016). 68. The question is thus whether, in the present case, the State has struck a fair balance between the applicant’s right to respect for her private life under Article 8 and the online news agency and forum host’s right to freedom of expression guaranteed by Article 10 of the Convention. 69. In this connection, the Court notes at the outset that the comments made about the applicant were found by the City Court not to constitute defamation under Articles 246 or 247 of the Penal Code (see paragraph 43 above), while the High Court deemed it unnecessary to take a stand on whether the comments were defamatory. The Court also considers that it is not necessary to examine in depth the nature of the impugned comments, as they in any event did not amount to hate speech or incitement to violence (contrast Delfi AS, cited above, §§ 18, 114 and 162; compare Pihl, cited above, §§ 23-25). 70. Turning to the possibilities for the applicant to pursue claims against the anonymous individual or individuals who had written the comments, the Court sees no reason to contest the applicant’s allegation that she would have faced considerable obstacles in attempting to do so. 71. As to the context in which the comments were made, the Court takes account of the fact that Hegnar Online was a large, commercially run news portal and that the debate forums were popular. It does not appear, however, from the judgments of the domestic courts that the debate forums were particularly integrated in the presentation of news and thus could be taken to be a continuation of the editorial articles. 72. With respect to the measures adopted by Hegnar Online, it appears that there was an established system of moderators who monitored content, although it is stated in the High Court’s judgment that they may not have discovered a great number of unlawful comments to remove of their own motion. Moreover, readers could click on “warning” buttons in order to notify their reaction to comments (see paragraph 37 above). Lastly, it appears from the present case that a response was also given to warnings by other means, such as email. 73. In the instant case, “comment 1” and “comment 2” had not been picked up by the moderators, but on 17 November 2017, thirteen minutes after having notified them, the applicant’s counsel received an email stating that the comments had been deleted (compare Pihl, cited above, § 32, about removal of an unlawful comment one day after notification had been given). The comments had been online since 6 and 8 November 2010, respectively. “Comment 3”, posted on 30 November 2010, had been deleted on the moderator’s own initiative before receipt of the notification on 3 December 2010. Based on an overall assessment, the High Court found it irrelevant that the comments had been mentioned in a letter to the Press Complaints Committee and that it had in that way become known to the chairman of Hegnar Online that the applicant had reacted to comments that she found to constitute sexual harassment. Upon an overall examination and assessment of the measures that had been put in place in order to monitor the forum comments – hereunder taking account of the control being only subsequent and that the commentators did not have to register – and the specific responses to the applicant’s notifications, the High Court found that the news portal company and its editor had acted appropriately (see paragraphs 36-39 above). 74. The Court observes that the applicant’s case was considered on its merits by two judicial instances at the domestic level before the Supreme Court refused leave to appeal (compare Pihl, cited above, § 36). The domestic courts reviewed the relevant aspects of the case (see paragraph 67 above). In line with the principles set out in Delfi AS, cited above, § 139 (see paragraph 66 above), there are no reasons for the Court to substitute a different view for that of the domestic courts. 75. In view of the above, the Court finds that the domestic courts acted within their margin of appreciation when seeking to establish a balance between the applicant’s rights under Article 8 and the news portal and host of the debate forums’ opposing right to freedom of expression under Article 10. 76. With respect to the complaint about the compensation for litigation costs awarded, the Court observes that the expenses did not involve any success fees or similar constructions. The case was tried in full before two court instances and both instances conscientiously reviewed, and considerably reduced, the extent of the compensable costs (see paragraphs 29 and 40 above). In the circumstances of the case, the domestic courts found that there were no reasons to deviate from the starting point that the winning party be awarded compensation for their fees and expenses. 77. While regard must be had to the general level of expenses in the jurisdiction (see, for example, AS Dagbladet v. Norway (dec.), no. 60715/14, § 33, 20 February 2018, and Avisa Nordland AS v. Norway (dec.), no. 30563/15, § 48, 20 February 2018), the Court notes the considerable amount of costs imposed on the applicant. However, taking account of the nature of the claim lodged before the national courts and the subject matter, the Court does not consider that it in the instant case can call into question the domestic courts’ assessment as to the imposition of costs, also in view of the High Court’s examination of the “parties’ welfare” and their “relative strength” (see paragraph 40 above). Against that background, the Court does not need to address the Government’s argument that Article 6 § 1 is lex specialis, as it is in any event satisfied that the domestic courts sufficiently safeguarded the applicant’s rights under Article 8 and that there has been no violation of that provision. | The Court held that there had been no violation of Article 8 (right to respect for private life) of the Convention, findind that the Norwegian courts had sufficiently safeguarded the applicant’s rights under that provision. It noted in particular that the comments made about the applicant had been found by the City Court not to constitute defamation under national law, while the High Court had deemed it unnecessary to take a stand on whether they were defamatory or not, and considered that the national courts had acted within their discretion (“margin of appreciation”) when seeking to establish a balance between the applicant’s rights under Article 8 and the opposing right to freedom of expression under Article 10 of the Convention of the news portal and host of the debate forums. Moreover, the domestic courts’ rulings on litigation costs being awarded to the defendants had not as such violated Article 8 of the Convention. |
713 | Right to form, to join or not join a trade union | II. RELEVANT DOMESTIC LAW A. Freedom of association 25. Chapter 2, Article 1, of the Instrument of Government provides: "All citizens shall be guaranteed the following in theirrelations with the public authorities: 1. freedom of expression: the freedom to communicateinformation and to express ideas, opinions and emotions whether orally, in writing, in pictorial representations, or in anyother way; ... 5. freedom of association: the freedom to unite with othersfor public or private purposes; ..." 26. According to Chapter 2, Article 2: "All citizens shall be protected in their relations with the public authorities against all coercion designed to compel themto divulge an opinion in any political, religious, cultural orother similar connection. They shall furthermore be protectedin their relations with the public authorities against allcoercion designed to compel them to participate in any meetingfor the formation of opinion or in any demonstration or otherexpression of opinion or to belong to any politicalassociation, religious congregation or other association foropinions of the nature referred to in the first sentence." 27. Chapter 2, Article 12 paras. 1 and 2, reads: "The freedoms and rights referred to in Article 1 paras. 1 to5 ... may be restricted by law to the extent provided for inArticles 13-16 ... The restrictions referred to in the preceding subsection mayonly be imposed to achieve a purpose which is acceptable in ademocratic society. The restriction may never exceed what isnecessary having regard to the purpose which occasioned it, normay it be carried so far as to constitute a threat to the freeformation of opinion as one of the foundations of democracy.No restriction may be imposed solely on grounds of political,religious, cultural or other such opinions." 28. Chapter 2, Article 14 para. 2 provides: "Freedom of association may only be restricted in respect of organisations whose activities are of a military nature or the like or which involve the persecution of a population group of a particular race, skin colour or ethnic origin." 29. Pursuant to Chapter 2, Article 17: "Any trade union or employer or association of employers has a right to take industrial action unless otherwise provided by law or by agreement." B. Right of association 30. Section 7 of the 1976 Act on Co-Determination at Work reads: "Right of association means the right of employers andemployees to belong to an organisation of employers oremployees, to benefit from their membership as well as to workfor an organisation or for the founding of one." 31. Section 8 provides: "The right of association shall not be violated. A violation... will occur, if anyone from the employer’s side or the employee’s side takes any action to the detriment of anybodyon the other side by reason of that person having exercised hisright of association, or if anybody on either side takes anyaction against anybody on the other side with a view toinducing that person not to exercise his right of association.A violation will occur even if the action so taken is designedto fulfil an obligation towards another party. An employers’ or employees’ organisation shall not have to tolerate a violation of its right of association encroaching upon its activities. Where there is both a local and a central organisation, these provisions shall apply to the central organisation. If the right of association is violated by termination of anagreement or another legal measure or by a provision in acollective agreement or other contract, that measure orprovision shall be void." 32. According to section 10: "An employees’ organisation shall have the right to negotiatewith an employer regarding any matter relating to therelationship between the employer and any member of theorganisation who is or has been employed by that employer. Anemployer shall have a corresponding right to negotiate with anemployees’ organisation. A right of negotiation ... shall also be enjoyed by the employees’ organisation in relation to any organisation towhich an employer belongs, and by the employers’ organisationin relation to the employees’ organisation." C. Judicial remedies 33. Chapter 11, Article 3, of the Instrument of Government provides: "Legal disputes between private subjects shall only be settledby a court of law, unless otherwise provided by law ..." 34. In principle, it is possible for an employer against whom industrial action has been instituted to request a court injunction requiring that the action cease, and to claim damages. Such orders may be made by the relevant court if the industrial action is unlawful or in breach of an existing collective agreement. If the industrial action amounts to a criminal offence, a claim for compensation may be made under Chapter 2, section 4, of the 1972 Compensation Act (skadeståndslag 1972:207). 35. Pursuant to section 1 of the 1988 Act, a person who has been a party to administrative proceedings before the Government or another public authority may, in the absence of any other remedy, apply to the Supreme Administrative Court, as the first and only judicial instance, for review of any decisions in the case which involve the exercise of public authority vis-à-vis a private individual. The kind of administrative decision covered by the Act is further defined in Chapter 8, Articles 2 and 3, of the Instrument of Government, to which section 1 of the 1988 Act refers. According to these provisions the Act encompasses measures concerning, inter alia, personal and economic matters arising in relations between private persons and between such persons and the State. Section 2 of the Act specifies several types of decision which fall outside its scope, none of which are relevant in the instant case. In proceedings brought under the 1988 Act, the Supreme Administrative Court examines whether the contested decision "conflicts with any legal rule" (section 1 of the 1988 Act). If the court finds that the impugned decision is unlawful, it must quash it and, where necessary, refer the case back to the relevant administrative authority (section 5 of the 1988 Act). PROCEEDINGS BEFORE THE COMMISSION 36. In his application to the Commission of 1 July 1989 (no. 15573/89) Mr Gustafsson complained that the lack of State protection against the industrial action taken against his restaurant gave rise to a violation of his right to freedom of association as guaranteed by Article 11 (art. 11) of the Convention and also of his right to peaceful enjoyment of possessions under Article 1 of Protocol No. 1 (P1-1), in conjunction with Article 17 (art. 17) of the Convention. He further alleged breaches of his rights under Article 6 para. 1 (art. 6-1) (right to a fair hearing) and Article 13 (art. 13) (right to an effective remedy), complaining that the court remedies to which he could have recourse in order to challenge the industrial action would have been ineffective since such action was lawful under Swedish law. 37. On 8 April 1994 the Commission declared the application admissible. In its report of 10 January 1995 (Article 31) (art. 31), the Commission expressed the opinion that (a) there had been a violation of Article 11 (art. 11) (by thirteen votes to four); (b) it was not necessary to examine the complaint under Article 1 of Protocol No. 1 (P1-1) in conjunction with Article 17 (art. 17) of the Convention (by eleven votes to six); (c) there had been no violation of Article 6 para. 1 (art. 6-1) of the Convention (by sixteen votes to one); (d) there had been a violation of Article 13 (art. 13) of the Convention (by fourteen votes to three). The full text of the Commission’s opinion and of the four separate opinions contained in the report is reproduced as an annex to this judgment [2]. FINAL SUBMISSIONS MADE TO THE COURT 38. At the hearing on 22 November 1995 the Government, as they had done in their memorial, invited the Court to hold that there had been no violation of the Convention in the present case. 39. On the same occasion the applicant reiterated his request to the Court stated in his memorial to find that there had been violations of Articles 6, 11 and 13 (art. 6, art. 11, art. 13) of the Convention, and of Article 1 of Protocol No. 1 (P1-1) in conjunction with Article 17 (art. 17) of the Convention. AS TO THE LAW I. ALLEGED VIOLATION OF ARTICLE 11 (art. 11) OF THE CONVENTION 40. The applicant complained that the union action had infringed his right to freedom of association and that the failure of the respondent State to protect him against this action constituted a violation of Article 11 (art. 11) of the Convention, which reads: "1. Everyone has the right to freedom of peaceful assembly andto freedom of association with others, including the right toform and to join trade unions for the protection of hisinterests. "2. No restrictions shall be placed on the exercise of theserights other than such as are prescribed by law and arenecessary in a democratic society in the interests of nationalsecurity or public safety, for the prevention of disorder orcrime, for the protection of health or morals or for theprotection of the rights and freedoms of others. This Article(art. 11) shall not prevent the imposition of lawfulrestrictions on the exercise of these rights by members of thearmed forces, of the police or of the administration of theState." 41. The Government disputed this contention, whereas the Commission shared the applicant’s view that there had been a violation. A. Applicability of Article 11 (art. 11) 42. The Government contested the applicability of Article 11 (art. 11) to the matters complained of by the applicant. Unlike the applicants in previous cases where the Court had recognised a negative right to freedom of association (see the Young, James and Webster v. the United Kingdom judgment of 13 August 1981, Series A no. 44, pp. 21-22, paras. 55-58; and the Sigurdur A. Sigurjónsson v. Iceland judgment of 30 June 1993, Series A no. 264, pp. 15-16, para. 35), the applicant in the present case had not been compelled to join an association. The union action had primarily been aimed at making the applicant apply to his employees a certain agreement negotiated by the relevant labour organisations. This could have been achieved not only by the applicant joining one of the two employers’ associations in the trade - the Swedish Hotel and Restaurant Entrepreneurs’ Union ("HRAF") and the Employers’ Association of the Swedish Union of Restaurant Owners ("SRA") - but also by his signing with the Hotel and Restaurant Workers’ Union ("HRF") a substitute agreement to the existing collective agreements applied in the restaurant trade (see paragraph 10 above). He could have avoided the union action by availing himself of the possibility of entering into negotiations with the union with a view to reaching a solution based on a substitute agreement drafted in a way that was adapted to the special character of the business run by the applicant (see paragraphs 11 and 12 above). The conclusion of such an agreement might have affected the applicant’s freedom as an employer to conclude contracts with his employees, but this freedom was not as such guaranteed by the Convention. The Government in addition pointed out that in practice the union action had essentially had the effect of stopping deliveries of goods to his restaurant (see paragraph 14 above) and had not involved occupation or picketing of the applicant’s business premises. Nor had he substantiated his claim that he had had to sell the restaurant or had suffered any other form of pecuniary damage as a result of the industrial action. 43. The applicant and the Commission maintained that the unions’ boycott and blockade of his business had affected his right to negative freedom of association. Admittedly, had the applicant concluded a substitute agreement, the primary purpose of the action, namely to achieve the largest possible acceptance and the widest possible application of the collective agreement to which HRF was a party, could have been attained without the applicant becoming a member of HRAF or SRA. However, the applicant objected not only to formal membership but also to participation in the collective-bargaining system, since in both cases he would have become bound by a collective agreement with HRF. One of the most important effects of membership of an employers’ association in Sweden was the members’ participation, through the association, in collective bargaining and their undertaking to be bound by any collective agreement concluded by the association. Therefore, even though the applicant had had the possibility of accepting these obligations without formally joining HRAF or any other association, it would be artificial and formalistic to deny that his negative freedom of association had been affected. 44. The Court considers that although the extent of the inconvenience or damage caused by the union action to the applicant’s business may be open to question, the measures must have entailed considerable pressure on the applicant to meet the union’s demand that he be bound by a collective agreement. He had two alternative means of doing so: either by joining an employers’ association, which would have made him automatically bound by a collective agreement, or by signing a substitute agreement (see paragraphs 10 and 11 above). The Court accepts that, to a degree, the enjoyment of his freedom of association was thereby affected. Article 11 (art. 11) is thus applicable in the present case. The Court will therefore examine whether there was an infringement of his right to freedom of association for which the respondent State was responsible. B. Compliance with Article 11 (art. 11) 1. General principles 45. The matters complained of by the applicant, although they were made possible by national law, did not involve a direct intervention by the State. The responsibility of Sweden would nevertheless be engaged if those matters resulted from a failure on its part to secure to him under domestic law the rights set forth in Article 11 (art. 11) of the Convention (see, amongst others, the Sibson v. the United Kingdom judgment of 20 April 1993, Series A no. 258-A, p. 13, para. 27). Although the essential object of Article 11 (art. 11) is to protect the individual against arbitrary interferences by the public authorities with his or her exercise of the rights protected, there may in addition be positive obligations to secure the effective enjoyment of these rights. In the most recent judgment delivered in this connection, Article 11 (art. 11) of the Convention has been interpreted to encompass not only a positive right to form and join an association, but also the negative aspect of that freedom, namely the right not to join or to withdraw from an association (see the above-mentioned Sigurdur A. Sigurjónsson judgment, pp. 15-16, para. 35). Whilst leaving open whether the negative right is to be considered on an equal footing with the positive right, the Court has held that, although compulsion to join a particular trade union may not always be contrary to the Convention, a form of such compulsion which, in the circumstances of the case, strikes at the very substance of the freedom of association guaranteed by Article 11 (art. 11) will constitute an interference with that freedom (see, for instance, the above-mentioned Sibson judgment, p. 14, para. 29). It follows that national authorities may, in certain circumstances, be obliged to intervene in the relationships between private individuals by taking reasonable and appropriate measures to secure the effective enjoyment of the negative right to freedom of association (see, mutatis mutandis, the Plattform "Ärzte für das Leben" v. Austria judgment of 21 June 1988, Series A no. 139, p. 12, paras. 32-34). At the same time it should be recalled that, although Article 11 (art. 11) does not secure any particular treatment of the trade unions, or their members, by the State, such as a right to conclude any given collective agreement, the words "for the protection of [their] interests" in Article 11 para. 1 (art. 11-1) show that the Convention safeguards freedom to protect the occupational interests of trade-union members by trade-union action. In this respect the State has a choice as to the means to be used and the Court has recognised that the concluding of collective agreements may be one of these (see, for instance, the Swedish Engine Drivers’ Union v. Sweden judgment of 6 February 1976, Series A no. 20, pp. 15-16, paras. 39-40). In view of the sensitive character of the social and political issues involved in achieving a proper balance between the competing interests and, in particular, in assessing the appropriateness of State intervention to restrict union action aimed at extending a system of collective bargaining, and the wide degree of divergence between the domestic systems in the particular area under consideration, the Contracting States should enjoy a wide margin of appreciation in their choice of the means to be employed. 2. Application of the foregoing principles 46. The applicant emphasised that he objected to becoming bound by a collective agreement mainly on grounds of political and philosophical conviction. Rather than subjecting himself and his employees to union corporatism, he wished to retain the personal character of the relationship between himself as employer and his employees. The applicant and the Commission were of the view that the pressure which was brought to bear upon him was such as to require the Swedish authorities to take positive measures of protection. Because of the blockade and boycott, he was largely prevented from obtaining deliveries of the necessary goods for the running of his restaurant (see paragraph 14 above). As a result, the applicant’s business suffered considerably and he had to sell the restaurant (see paragraph 23 above). These harsh measures had not been counterbalanced by any strong legitimate interests of HRF in forcing the applicant to sign a collective agreement. When taking action against the applicant, HRF had not represented any members employed by him. The only HRF member who was employed by the applicant had not asked for the union’s assistance but had expressly stated that she found the industrial action unnecessary, as the terms of employment offered by him were not open to criticism (see paragraph 15 above). On the contrary, they were more favourable than those which would have applied under the collective agreement in force. For these reasons HRF’s action was disproportionate to the interests which it sought to protect. In such circumstances, the applicant and the Commission underlined, it was incumbent on the respondent State to provide for effective legal redress, for instance by making available to the applicant legal procedures which would have made it possible for him to mitigate or terminate the action taken against him. Since no such legal protection existed in Swedish law, the facts giving rise to the applicant’s complaint constituted a violation of his rights under Article 11 (art. 11) of the Convention. 47. The applicant further considered that the Government, having refrained from arguing before the Commission that the union action was justified, were estopped from changing their stance and adducing evidence in this respect in the proceedings before the Court. The Commission’s Delegate pointed out that the additional information and fresh arguments submitted by the Government on this point could and should have been adduced and invoked before the Commission. She invited the Court to consider very carefully what weight could be given to that information and to those arguments at this late stage of the proceedings. 48. The Government, in their memorial to the Court, stressed for the first time that the Commission’s finding that the terms of employment of the applicant’s employees were more favourable than those that would have applied under a collective agreement, was based on the applicant’s own submissions to the Commission and had never been confirmed or accepted by the Government. Before the Court, the Government, relying on information provided by HRF, disputed this finding. The collective agreement which the union sought to achieve with the applicant had had the aim of substantially improving the economic and social conditions for the applicant’s existing and future employees (see paragraph 15 above). In the absence of a collective agreement governing the relationship between the applicant and his employees, the latter could not benefit from the protection provided in important parts of the Swedish labour legislation. The working conditions applied by the applicant gave him a competitive advantage over other restaurant owners. 49. In the Government’s opinion, the applicant was in effect challenging a system that had been applied in Sweden for sixty years and which could be said to have formed one of the most important elements in what had become known as the "Swedish model" of industrial relations, believed by many to have contributed significantly to the Swedish Welfare State. The Government stated that in Sweden most major employers were affiliated to an employers’ organisation bound by a collective agreement and about 85% of employees were unionised. An essential and long-standing feature of the Swedish model was that industrial relations were determined primarily by the parties to the labour-market rather than by State intervention. Thus, wages, working hours, leave entitlements and various other kinds of terms of employment were governed by collective agreements, covering 90% of the labour-market, rather than by legislation. Another important feature was that employers should not be able to gain a competitive advantage over their competitors by offering less favourable working conditions than those provided for by collective agreements. Moreover, the Government pointed out that, as a result of the prohibition under Swedish law to resort to strikes, boycotts and other means in industrial relations governed by a collective agreement, such actions had been kept at a tolerable level for many years. On the other hand, unions not bound by a collective agreement with a particular employer had been left with a wide discretion in taking measures to make that employer sign a collective agreement. This reflected the importance the legislator had attached to the right of trade unions to promote their interests. 50. In these circumstances, the Government considered that Sweden was not under an obligation under Article 11 (art. 11) of the Convention to take positive measures to protect the applicant against the union action. 51. As to the particular circumstances of the present case, the Court notes from the outset that the additional information concerning the terms and conditions of employment adduced by the Government before it supplement the facts underlying the application declared admissible by the Commission. The Court is not prevented from taking them into account in determining the merits of the applicant’s complaints under the Convention if it considers them relevant (see the Barthold v. Germany judgment of 25 March 1985, Series A no. 90, p. 20, paras. 41-42; and the McMichael v. the United Kingdom judgment of 24 February 1995, Series A no. 307-B, p. 51, para. 73). 52. As indicated earlier (see paragraph 44 above), the union action must have entailed a considerable pressure on the applicant to meet the union’s demand that he accept to be bound by a collective agreement, either by joining an employers’ association or by signing a substitute agreement. However, only the first alternative involved membership of an association. It is true that, had the applicant opted for the second alternative, he might have had less opportunity to influence the contents of future collective agreements than as a member of an employers’ association. On the other hand, a substitute agreement offered the advantage that it would have been possible to include in it individual clauses tailored to the special character of the applicant’s business. In any event, it does not appear, nor has it been contended, that the applicant was compelled to opt for membership of an employers’ association because of economic disadvantages attached to the substitute agreement. In reality the applicant’s principal objection to the second alternative was, as in relation to the first alternative, of a political nature, namely his disagreement with the collective-bargaining system in Sweden. However, Article 11 (art. 11) of the Convention does not as such guarantee a right not to enter into a collective agreement (see the above-mentioned Swedish Engine Drivers’ Union judgment, pp. 15-16, paras. 40-41). The positive obligation incumbent on the State under Article 11 (art. 11), including the aspect of protection of personal opinion, may well extend to treatment connected with the operation of a collective-bargaining system, but only where such treatment impinges on freedom of association. Compulsion which, as here, does not significantly affect the enjoyment of that freedom, even if it causes economic damage, cannot give rise to any positive obligation under Article 11 (art. 11). 53. Furthermore, the applicant has not substantiated his submission to the effect that the terms of employment which he offered were more favourable than those required under a collective agreement. Bearing in mind the special role and importance of collective agreements in the regulation of labour relations in Sweden, the Court sees no reason to doubt that the union action pursued legitimate interests consistent with Article 11 (art. 11) of the Convention (see, for instance, the above-mentioned Swedish Engine Drivers’ Union judgment, pp. 15-16, para. 40; and the Schmidt and Dahlström v. Sweden judgment of 6 February 1976, Series A no. 21, p. 16, para. 36). It should also be recalled in this context that the legitimate character of collective bargaining is recognised by a number of international instruments, in particular Article 6 of the European Social Charter, Article 8 of the 1966 International Covenant on Economic, Social and Cultural Rights and Conventions nos. 87 and 98 of the International Labour Organisation (the first concerning freedom of association and the right to organise and the second the application of the principles of the right to organise and to bargain collectively). 54. In the light of the foregoing, having regard to the margin of appreciation to be accorded to the respondent State in the area under consideration, the Court does not find that Sweden failed to secure the applicant’s rights under Article 11 (art. 11) of the Convention. 55. In sum, the Court reaches the conclusion that the facts of the present case did not give rise to a violation of Article 11 (art. 11) of the Convention. II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 (P1-1) 56. The applicant, referring to his allegations mentioned above (see paragraphs 39, 43, 46 and 47 above), submitted that the respondent State’s failure to provide protection against the industrial action had caused him pecuniary damage, in violation of Article 1 of Protocol No. 1 (P1-1), which reads: "Every natural or legal person is entitled to the peacefulenjoyment of his possessions. No one shall be deprived of hispossessions except in the public interest and subject to theconditions provided for by law and by the general principlesof international law. The preceding provisions shall not, however, in any way impairthe right of a State to enforce such laws as it deems necessaryto control the use of property in accordance with the generalinterest or to secure the payment of taxes or othercontributions or penalties." The applicant contended that, as a consequence of the union action, he had had to sell his restaurant (see paragraph 23 above) at a loss of SEK 600,000. 57. The Government disputed the above allegation, whereas the Commission, having regard to its finding of a violation of Article 11 (art. 11), did not find it necessary to address the issue under Article 1 of Protocol No. 1 (P1-1). 58. The Government conceded that the industrial action, having mainly the effect that the applicant’s suppliers could not deliver goods necessary for the running of his restaurant, must have led to difficulties in the running of the applicant’s business. However, the applicant had failed to substantiate any actual financial damage caused thereby and the Government had doubts as to how serious the consequences actually were for his business. The Government also denied that this matter, which essentially concerned the contractual relationships between the applicant and his suppliers, could engage the responsibility of the State under Article 1 of Protocol No. 1 (P1-1). The State had not interfered with the applicant’s business but had only passively tolerated the trade unions’ activities in an open market. The situation was comparable to a consumer boycott instituted against a private company. Yet customers should be free to take such measures without the State incurring liability, even if the boycott led to bankruptcy of the company. 59. According to the Court’s case-law, Article 1 (P1-1), which guarantees in substance the right of property, comprises three distinct rules. The first, which is expressed in the first sentence of the first paragraph (P1-1) and is of a general nature, lays down the principle of peaceful enjoyment of property. The second rule, in the second sentence of the same paragraph (P1-1), covers deprivation of possessions and subjects it to certain conditions. The third, contained in the second paragraph (P1-2), recognises that the Contracting States are entitled, amongst other things, to control the use of property in accordance with the general interest. The second and third rules, which are concerned with particular instances of interference with the right to peaceful enjoyment of property, are to be construed in the light of the general principle laid down in the first rule (see, among other authorities, the Pressos Compania Naviera S.A. and Others v. Belgium judgment of 20 November 1995, Series A no. 332, pp. 21-22, para. 33). It was not contended that the second and third rules above were applicable and the Court sees no reason to hold otherwise. On the other hand, the applicant alleged that there had been a violation of the first rule, namely the right "to the peaceful enjoyment of his possessions". 60. Admittedly, the State may be responsible under Article 1 (P1-1) for interferences with peaceful enjoyment of possessions resulting from transactions between private individuals (see the James and Others v. the United Kingdom judgment of 21 February 1986, Series A no. 98, pp. 28-29, paras. 35-36). In the present case, however, not only were the facts complained of not the product of an exercise of governmental authority, but they concerned exclusively relationships of a contractual nature between private individuals, namely the applicant and his suppliers or deliverers. In the Court’s opinion, such repercussions as the stop in deliveries had on the applicant’s restaurant were not such as to bring Article 1 of Protocol No. 1 (P1-1) into play. III. ALLEGED VIOLATION OF ARTICLE 6 PARA. 1 (art. 6-1) OF THE CONVENTION 61. The applicant alleged that there had been a breach of Article 6 para. 1 (art. 6-1) of the Convention on the ground that the court remedies at his disposal in order to obtain protection against the industrial action would not have been effective. Article 6 para. 1 (art. 6-1), in so far as is relevant, reads: "In the determination of his civil rights and obligations ...,everyone is entitled to a fair and public hearing ... by [a]... tribunal ..." 62. In the Government’s and the Commission’s opinion, Article 6 para. 1 (art. 6-1) was inapplicable. 63. According to the principles in the Court’s case-law (see, for instance, the Kerojärvi v. Finland judgment of 19 July 1995, Series A no. 322, p. 12, para. 32), the Court has first to ascertain whether there was a dispute (contestation) over a "right" which could be said, at least on arguable grounds, to be recognised under domestic law. The dispute must be genuine and serious: it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise. Finally, the result of the proceedings must be directly decisive for the right in question. If the Court finds that there is a dispute over a right, it must examine whether the right in question was of a "civil" character. 64. The Government and the Commission observed that, although there were various possibilities for the applicant to have the merits of his case examined by a Swedish court (see paragraphs 33 and 34 above), it was clear that the union action against him was lawful and that Swedish law provided no basis for the national court to grant an order remedying the situation complained of by the applicant. In these circumstances, there was no dispute (contestation) over a right which could be said on arguable grounds to be recognised under Swedish law. Accordingly, Article 6 para. 1 (art. 6-1) was inapplicable. 65. The applicant, citing Swedish case-law, argued that the negative right to freedom of association was recognised under Swedish law. However, in his submission, by virtue of Article 17 of the Instrument of Government which leaves it to the parties in the labour-market to solve industrial disputes (see paragraph 29 above), Sweden had abdicated its responsibilities as a Contracting Party to the Convention. The notion of an "arguable claim" in the Court’s case-law under Article 6 (art. 6) of the Convention was not confined to the position under national law but referred also to the law of the Convention. 66. The Court observes that applicability of Article 6 (art. 6) of the Convention depends on whether there is a dispute over a right recognised by national law. The applicant’s complaint under Article 6 para. 1 (art. 6-1) is not that he was denied an effective remedy enabling him to submit to a court a claim alleging a failure to comply with domestic law (as, for instance, in the Sporrong and Lönnroth v. Sweden judgment of 23 September 1982, Series A no. 52, pp. 29-30, paras. 80-82). Rather his complaint is essentially directed against the fact that the union action was lawful under Swedish law. However, that provision (art. 6-1) does not in itself guarantee any particular content for (civil) "rights and obligations" in the Contracting States (see, for example, the Powell and Rayner v. the United Kingdom judgment of 21 February 1990, Series A no. 172, pp. 16-17, para. 36). In the instant case there was no right recognised under Swedish law to attract the application of Article 6 para. 1 (art. 6-1) of the Convention. IV. ALLEGED VIOLATION OF ARTICLE 13 (art. 13) OF THE CONVENTION 67. The applicant in addition submitted that the same facts as amounted to the alleged violation of Article 6 para. 1 (art. 6-1) (see paragraphs 62 and 66 above) also constituted a breach of Article 13 (art. 13), which provides: "Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy beforea national authority not withstanding that the violation hasbeen committed by persons acting in an official capacity." 68. The Government disputed this allegation. 69. The Commission, having regard to its considerations with respect to the applicant’s complaint under Article 11 (art. 11) (see paragraphs 43 and 46 above), was of the opinion that the applicant’s claim under this provision (art. 11) was arguable on its merits. Furthermore, it was undisputed that no effective court or other remedy was available to the applicant, given that the industrial action did not contravene Swedish law. For these reasons the Commission shared the applicant’s view that there had been a breach of Article 13 (art. 13). 70. According to the Court’s case-law, Article 13 (art. 13) requires that, where an individual has an arguable claim to be the victim of a violation of the rights set forth in the Convention, he or she should have a remedy before a national authority in order both to have his or her claim decided and, if appropriate, to obtain redress. However, Article 13 (art. 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 (see, for instance, the above-mentioned James and Others judgment, p. 47, para. 84; and the above-mentioned Powell and Rayner judgment, p. 16, para. 36). The applicant’s complaint under the Convention being essentially directed against the fact that the union action was lawful under Swedish law, Article 13 (art. 13) is not applicable. | No violation of Article 11 of the Convention: While the State had to take “reasonable and appropriate measures to secure the effective enjoyment of the negative right to freedom of association”, the restriction imposed on the applicant had not interfered significantly with the exercise of his right to freedom of association. |
1,007 | Cases concerning NATO operations in Afghanistan | RELEVANT LEGAL FRAMEWORK AND PRACTICE International MaterialUnited Nations Security Council Resolutions and international agreements concerning Afghanistan and ISAFAgreement on provisional arrangements in Afghanistan pending the re-establishment of permanent government institutions of 5 December 2001 (“the Bonn Agreement”) United Nations Security Council Resolutions and international agreements concerning Afghanistan and ISAFAgreement on provisional arrangements in Afghanistan pending the re-establishment of permanent government institutions of 5 December 2001 (“the Bonn Agreement”) Agreement on provisional arrangements in Afghanistan pending the re-establishment of permanent government institutions of 5 December 2001 (“the Bonn Agreement”) United Nations Security Council Resolutions and international agreements concerning Afghanistan and ISAFAgreement on provisional arrangements in Afghanistan pending the re-establishment of permanent government institutions of 5 December 2001 (“the Bonn Agreement”) Agreement on provisional arrangements in Afghanistan pending the re-establishment of permanent government institutions of 5 December 2001 (“the Bonn Agreement”) Agreement on provisional arrangements in Afghanistan pending the re-establishment of permanent government institutions of 5 December 2001 (“the Bonn Agreement”) 71. The relevant passages of the above agreement read as follows: “The participants in the UN talks on Afghanistan, ... Reaffirming the independence, national sovereignty and territorial integrity of Afghanistan, Acknowledging the right of the people of Afghanistan to freely determine their own political future in accordance with the principles of Islam, democracy, pluralism and social justice, ... Recognizing that some time may be required for a new Afghan security force to be fully constituted and functional and that therefore other security provisions detailed in Annex I to this agreement must meanwhile be put in place, ... Have agreed as follows: THE INTERIM AUTHORITY ... V. Final provisions ... 3) The Interim Authority shall cooperate with the international community in the fight against terrorism, drugs and organized crime. It shall commit itself to respect international law and maintain peaceful and friendly relations with neighbouring countries and the rest of the international community. ... ANNEX I INTERNATIONAL SECURITY FORCE 1. The participants in the UN Talks on Afghanistan recognize that the responsibility for providing security and law and order throughout the country resides with the Afghans themselves. To this end, they pledge their commitment to do all within their means and influence to ensure such security, including for all United Nations and other personnel of international governmental and non-governmental organizations deployed in Afghanistan. 2. With this objective in mind, the participants request the assistance of the international community in helping the new Afghan authorities in the establishment and training of new Afghan security and armed forces. 3. Conscious that some time may be required for the new Afghan security and armed forces to be fully constituted and functioning, the participants in the UN Talks on Afghanistan request the United Nations Security Council to consider authorizing the early deployment to Afghanistan of a United Nations mandated force. This force will assist in the maintenance of security for Kabul and its surrounding areas. Such a force could, as appropriate, be progressively expanded to other urban centres and other areas. 4. The participants in the UN Talks on Afghanistan pledge to withdraw all military units from Kabul and other urban centers or other areas in which the UN mandated force is deployed. It would also be desirable if such a force were to assist in the rehabilitation of Afghanistan’s infrastructure.” United Nations Security Council Resolution 1386 (2001) of 20 December 2001 72. The above resolution reads as follows: “The Security Council, Reaffirming its previous resolutions on Afghanistan, in particular its resolutions 1378 (2001) of 14 November 2001 and 1383 (2001) of 6 December 2001, Supporting international efforts to root out terrorism, in keeping with the Charter of the United Nations, and reaffirming also its resolutions 1368 (2001) of 12 September 2001 and 1373 (2001) of 28 September 2001, Welcoming developments in Afghanistan that will allow for all Afghans to enjoy inalienable rights and freedom unfettered by oppression and terror, Recognizing that the responsibility for providing security and law and order throughout the country resides with the Afghan themselves, Reiterating its endorsement of the Agreement on provisional arrangements in Afghanistan pending the re-establishment of permanent government institutions, signed in Bonn on 5 December 2001 (S/2001/1154) (the Bonn Agreement), Taking note of the request to the Security Council in Annex 1, paragraph 3, to the Bonn Agreement to consider authorizing the early deployment to Afghanistan of an international security force, as well as the briefing on 14 December 2001 by the Special Representative of the Secretary-General on his contacts with the Afghan authorities in which they welcome the deployment to Afghanistan of a United Nations-authorized international security force, Taking note of the letter dated 19 December 2001 from Dr. Abdullah Abdullah to the President of the Security Council (S/2001/1223), Welcoming the letter from the Secretary of State for Foreign and Commonwealth Affairs of the United Kingdom of Great Britain and Northern Ireland to the Secretary-General of 19 December 2001 (S/2001/1217), and taking note of the United Kingdom offer contained therein to take the lead in organizing and commanding an International Security Assistance Force, Stressing that all Afghan forces must adhere strictly to their obligations under human rights law, including respect for the rights of women, and under international humanitarian law, Reaffirming its strong commitment to the sovereignty, independence, territorial integrity and national unity of Afghanistan, Determining that the situation in Afghanistan still constitutes a threat to international peace and security, Determined to ensure the full implementation of the mandate of the International Security Assistance Force, in consultation with the Afghan Interim Authority established by the Bonn Agreement, Acting for these reasons under Chapter VII of the Charter of the United Nations, 1. Authorizes, as envisaged in Annex 1 to the Bonn Agreement, the establishment for 6 months of an International Security Assistance Force to assist the Afghan Interim Authority in the maintenance of security in Kabul and its surrounding areas, so that the Afghan Interim Authority as well as the personnel of the United Nations can operate in a secure environment; 2. Calls upon Member States to contribute personnel, equipment and other resources to the International Security Assistance Force, and invites those Member States to inform the leadership of the Force and the Secretary-General; 3. Authorizes the Member States participating in the International Security Assistance Force to take all necessary measures to fulfil its mandate; 4. Calls upon the International Security Assistance Force to work in close consultation with the Afghan Interim Authority in the implementation of the force mandate, as well as with the Special Representative of the Secretary-General; 5. Calls upon all Afghans to cooperate with the International Security Assistance Force and relevant international governmental and non-governmental organizations, and welcomes the commitment of the parties to the Bonn Agreement to do all within their means and influence to ensure security, including to ensure the safety, security and freedom of movement of all United Nations personnel and all other personnel of international governmental and non-governmental organizations deployed in Afghanistan; 6. Takes note of the pledge made by the Afghan parties to the Bonn Agreement in Annex 1 to that Agreement to withdraw all military units from Kabul, and calls upon them to implement this pledge in cooperation with the International Security Assistance Force; 7. Encourages neighbouring States and other Member States to provide to the International Security Assistance Force such necessary assistance as may be requested, including the provision of overflight clearances and transit; 8. Stresses that the expenses of the International Security Assistance Force will be borne by the participating Member States concerned, requests the Secretary-General to establish a trust fund through which contributions could be channelled to the Member States or operations concerned, and encourages Member States to contribute to such a fund; 9. Requests the leadership of the International Security Assistance Force to provide periodic reports on progress towards the implementation of its mandate through the Secretary-General; 10. Calls on Member States participating in the International Security Assistance Force to provide assistance to help the Afghan Interim Authority in the establishment and training of new Afghan security and armed forces; 11. Decides to remain actively seized of the matter.” Subsequent United Nations Security Council Resolutions 73. In its Resolution 1510 (2003) of 13 October 2003 the United Nations Security Council expanded the mandate of ISAF to areas of Afghanistan outside of Kabul and its environs. 74. In addition, the United Nations Security Council continuously renewed the authorisation for ISAF given by Resolution 1386 (2001). For the relevant time, United Nations Security Council Resolution 1833 (2008) of 22 September 2008 extended the authorisation for a period of twelve months beyond 13 October 2008. The relevant parts read: “The Security Council, ... Recognizing that the responsibility for providing security and law and order throughout the country resides with the Afghan Authorities, stressing the role of the International Security Assistance Force (ISAF) in assisting the Afghan Government to improve the security situation and welcoming the cooperation of the Afghan Government with ISAF, ... Stressing the central and impartial role that the United Nations continues to play in promoting peace and stability in Afghanistan by leading the efforts of the international community, noting, in this context, the synergies in the objectives of the United Nations Assistance Mission in Afghanistan (UNAMA) and of ISAF, and stressing the need for strengthened cooperation, coordination and mutual support, taking due account of their respective designated responsibilities, ... Expressing also its concern over the harmful consequences of violent and terrorist activities by the Taliban, Al-Qaida and other extremist groups on the capacity of the Afghan Government to guarantee the rule of law, to provide security and basic services to the Afghan people, and to ensure the full enjoyment of their human rights and fundamental freedoms, Reiterating its support for the continuing endeavours by the Afghan Government, with the assistance of the international community, including ISAF and the Operation Enduring Freedom (OEF) coalition, to improve the security situation and to continue to address the threat posed by the Taliban, Al-Qaida and other extremist groups, and stressing in this context the need for sustained international efforts, including those of ISAF and the OEF coalition, ... Recognizing the efforts taken by ISAF and other international forces to minimize the risk of civilian casualties, and calling on them to take additional robust efforts in this regard, notably by the continuous review of tactics and procedures and the conduct of after-action reviews and investigations in cooperation with the Afghan Government in cases where civilian casualties have occurred and when the Afghan Government finds these joint investigations appropriate, ... Recalling the leading role that the Afghan Authorities will play for the organization of the next presidential elections, with the assistance of the United Nations, and stressing the importance of the assistance to be provided to the Afghan Authorities by ISAF in ensuring a secure environment conducive to the elections, ... Expressing its appreciation for the leadership provided by the North Atlantic Treaty Organization (NATO), and for the contributions of many nations to ISAF and to the OEF coalition, including its maritime interdiction component, which operates within the framework of the counter-terrorism operations in Afghanistan and in accordance with the applicable rules of international law, Determining that the situation in Afghanistan still constitutes a threat to international peace and security, Determined to ensure the full implementation of the mandate of ISAF, in coordination with the Afghan Government, Acting for these reasons under Chapter VII of the Charter of the United Nations, 1. Decides to extend the authorization of the International Security Assistance Force, as defined in resolution 1386 (2001) and 1510 (2003), for a period of twelve months beyond 13 October 2008; 2. Authorizes the Member States participating in ISAF to take all necessary measures to fulfil its mandate; ... 5. Calls upon ISAF to continue to work in close consultation with the Afghan Government and the Special Representative of the Secretary-General as well as with the OEF coalition in the implementation of the force mandate; 6. Requests the leadership of ISAF to keep the Security Council regularly informed, through the Secretary-General, on the implementation of its mandate, including through the provision of quarterly reports; 7. Decides to remain actively seized of this matter.” Military Technical Agreement between the International Security Assistance Force (ISAF) and the Interim Administration of Afghanistan (“Interim Administration”) of 4 January 2002 75. The relevant part of the above-mentioned agreement reads as follows: “Article I: General Obligations ... 4. For the purpose of this Military Technical Agreement, the following expressions shall have the meaning described below: ... g. Area of Responsibility (AOR) is the area marked out on the map attached at Annex B. ... i. An ‘Offensive Action’ is any use of armed military force. ... Article II: Status of the International Security Force 1. The arrangements regarding the Status of the ISAF are at Annex A. Article III: Provision of Security and Law and Order 1. The Interim Administration recognises that the provision of security and law and order is their responsibility. This will include maintenance and support of a recognised Police Force operating in accordance with internationally recognised standards and Afghanistan law and with respect for internationally recognised human rights and fundamental freedoms, and by taking other measures as appropriate. 2. The Interim Administration will ensure that all Afghan Military Units come under its command and control in accordance with the Bonn Agreement. The Interim Administration agrees it will return all Military Units based in Kabul into designated barracks detailed at Annex C as soon as possible. Such units will not leave those Barracks without the prior approval of the Interim Administration and notification to the ISAF Commander by the Chairman of the Interim Administration. 3. The Interim Administration will refrain from All Offensive Action within the AOR. ... ANNEX A Arrangements Regarding the Status of the International Security Assistance Force (“ISAF Status of Forces Agreement”) Section 1: Jurisdiction 1. The provisions of the Convention on the Privileges and Immunities of the United Nations of 13 February 1946 concerning experts on mission will apply mutatis mutandis to the ISAF and supporting personnel, including associated liaison personnel. ... 3. The ISAF and supporting personnel, including associated liaison personnel, will under all circumstances and at all times be subject to the exclusive jurisdiction of their respective national elements in respect of any criminal or disciplinary offences which may be committed by them on the territory of Afghanistan. The Interim Administration will assist the ISAF contributing nations in the exercise of their respective jurisdictions. 4. The ISAF and supporting personnel, including associated liaison personnel, will be immune from personal arrest or detention. ISAF and supporting personnel, including associated liaison personnel, mistakenly arrested or detained will be immediately handed over to ISAF authorities. The Interim Administration agree that ISAF and supporting personnel, including associated liaison personnel, may not be surrendered to, or otherwise transferred to the custody of, an international tribunal or any other entity or State without the express consent of the contributing nation. ISAF Forces will respect the laws and culture of Afghanistan. ...” International law and practiceThe Vienna Convention on the Law of Treaties The Vienna Convention on the Law of Treaties The Vienna Convention on the Law of Treaties 76. Article 31 of the Vienna Convention on the Law of Treaties 1969 (“the Vienna Convention”) provides as follows: 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 connexion with the conclusion of the treaty; (b) Any instrument which was made by one or more parties in connexion 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.” Case-law of the International Court of Justice 77. In its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons (8 July 1996), the International Court of Justice stated as follows: “25. The Court observes that the protection of the International Covenant for the Protection of Civil and Political Rights does not cease in times of war, except by operation of Article 4 of the Covenant whereby certain provisions may be derogated from in a time of national emergency. Respect for the right to life, however, is not such a provision. In principle, the right not arbitrarily to be deprived of one’s life applies also in hostilities. The test of what is an arbitrary deprivation of life, however, falls to be determined by the applicable lex specialis, namely, the law applicable in armed conflict which is designed to regulate the conduct of hostilities. Thus whether a particular loss of life, through the use of a certain weapon in warfare, is to be considered an arbitrary deprivation of life contrary to Article 6 of the Covenant, can only be decided by reference to the law applicable in armed conflict and not deduced from the terms of the Covenant itself. ... 41. The submission of the exercise of the right of self-defence to the conditions of necessity and proportionality is a rule of customary international law. As the Court stated in the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) : there is a ‘specific rule whereby self-defence would warrant only measures which are proportional to the armed attack and necessary to respond to it, a rule well established in customary international law’ ( I.C.J. Reports 1986, p. 94, para. 176). This dual condition applies equally to Article 51 of the Charter, whatever the means of force employed.” 78. In its Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (9 July 2004), the International Court of Justice rejected Israel’s argument that the human rights instruments to which it was a party were not applicable to occupied territory, and held: “106. ... the Court considers that the protection offered by human rights conventions does not cease in case of armed conflict, save through the effect of provisions for derogation of the kind to be found in Article 4 of the [International Covenant on Civil and Political Rights]. As regards the relationship between international humanitarian law and human rights law, there are thus three possible situations: some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law. In order to answer the question put to it, the Court will have to take into consideration both these branches of international law, namely human rights law and, as lex specialis, international humanitarian law.” 79. In its judgment concerning Armed Activities on the Territory of the Congo (Democratic Republic of Congo v. Uganda) (19 December 2005), the International Court of Justice held as follows: “215. The Court, having established that the conduct of the UPDF [Uganda People’s Defence Force] and of the officers and soldiers of the UPDF is attributable to Uganda, must now examine whether this conduct constitutes a breach of Uganda’s international obligations. In this regard, the Court needs to determine the rules and principles of international human rights law and international humanitarian law which are relevant for this purpose. 216. The Court first recalls that it had occasion to address the issues of the relationship between international humanitarian law and international human rights law and of the applicability of international human rights law instruments outside national territory in its Advisory Opinion of 9 July 2004 on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory. In this Advisory Opinion the Court found that ‘the protection offered by human rights conventions does not cease in case of armed conflict, save through the effect of provisions for derogation of the kind to be found in Article 4 of the International Covenant on Civil and Political Rights. As regards the relationship between international humanitarian law and human rights law, there are thus three possible situations: some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law.’ (I.C.J. Reports 2004, p. 178, para. 106.) It thus concluded that both branches of international law, namely international human rights law and international humanitarian law, would have to be taken into consideration. The Court further concluded that international human rights instruments are applicable ‘in respect of acts done by a State in the exercise of its jurisdiction outside its own territory’, particularly in occupied territories (ibid., pp. 178-181, paras. 107-113).” International humanitarian law 80. Article 50 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), of 8 June 1977 (“Additional Protocol I”), which is applicable to international armed conflicts, defines civilians as persons who are not members of the armed forces. The Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), of 8 June 1977 (“Additional Protocol II”), which is applicable to non-international armed conflicts, does not contain a definition of civilians. The definition of civilians in Additional Protocol I is a norm of customary international law which also applies to non-international armed conflicts (see Rule 5 of the Customary International Humanitarian Law study by the ICRC and the commentary thereon [2] ). Civilians are protected against attack in non-international armed conflict, unless and for such time as they take a direct part in hostilities (Article 13 (3) of Additional Protocol II and Rule 6 of the Customary International Humanitarian Law study). In respect of non-international armed conflicts, the Customary International Humanitarian Law study indicated that there was ambiguity whether members of armed opposition groups could be considered civilians and be attacked lawfully only for such time as they took a direct part in hostilities, or whether they were, due to their membership, either considered to be continuously taking a direct part in hostilities or considered not to be civilians (see commentary on Rules 5 and 6). In 2009, the ICRC published Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law, [3] stating, inter alia, that in non-international armed conflict organised armed groups constituted the armed forces of a non-State party to the conflict and consisted only of individuals whose continuous function it was to take a direct part in hostilities (“continuous combat function”). Such members of organised armed groups belonging to a non-State party to an armed conflict ceased to be civilians, and lost protection against direct attack, for as long as they assumed their continuous combat function. 81. The prohibition of indiscriminate attacks, set forth in Article 51(4) of Additional Protocol I, constitutes a norm of customary international law applicable in both international and non-international armed conflicts (see Rules 11 to 13 of the Customary International Humanitarian Law study and the commentaries thereon). The principle of proportionality in attack, codified in Article 51(5)(b) and repeated in Article 57(2)(a)(iii) of Additional Protocol I, is recognised as a norm of customary international law which is applicable in both international and non-international armed conflict (see paragraph 77 above and Rule 14 of the Customary International Humanitarian Law study). It provides that launching an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated, is prohibited. State practice indicates that an ex ante perspective is decisive in this respect and Germany made a declaration to that effect upon ratification of Additional Protocol I. The principle of precautions in attack, codified in Article 57 of Additional Protocol I, is a norm of customary international law applicable in both international and non-international armed conflicts (see Rules 15 to 21 and the commentaries thereon). It provides that in the conduct of military operations, constant care must be taken to spare the civilian population, civilians and civilian objects and that all feasible precautions must be taken, including in the choice of means and methods of warfare, to avoid, and in any event to minimise, incidental loss of civilian life, injury to civilians and damage to civilian objects. Everything feasible must be done to verify that targets are military objectives and to assess whether the attack may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated. Each party to the conflict must give effective advance warning of attacks which may affect the civilian population, unless circumstances do not permit, such as in cases where the element of surprise is essential to the success of an operation or to the security of the attacking forces. The obligation to take all “feasible” precautions has been interpreted by many States as being limited to those precautions which are practicable or practically possible, taking into account all circumstances prevailing at the time, including humanitarian and military considerations. 82. The four Geneva Conventions of 1949 and their Additional Protocol I, all of which are applicable to international armed conflict only (with the exception of the common Article 3 to the Conventions), place an obligation on each Contracting State to investigate and prosecute alleged grave breaches of the Conventions, including the wilful killing of protected persons. [4] Additional Protocol II does not contain a similar provision. Its Article 6 contains certain guarantees to be respected in the prosecution and punishment of criminal offences related to the armed conflict, including a court “offering the essential guarantees of independence and impartiality” and that the accused be informed “without delay” of the grounds against him. 83. It is an established norm of customary international humanitarian law which is also applicable in non-international armed conflicts, that States must investigate war crimes allegedly committed by their nationals or armed forces, or on their territory, and, if appropriate, prosecute the suspects. They must also investigate other war crimes over which they have jurisdiction and, if appropriate, prosecute the suspects (see Rule 158 of the Customary International Humanitarian Law study and the commentary thereon). States engaging in multinational operations under the auspices of an international organisation are under the obligation to ensure respect for the entire body of international humanitarian law, including customary international humanitarian law, by their national contingent, including by the exercise of disciplinary and criminal powers retained by them. [5] 84. International humanitarian law assigns duties to commanders to ensure compliance with its rules, including in respect of initiating disciplinary or penal action against subordinates or other persons under their control (see Article 87 of Additional Protocol I and the ICRC commentary thereon [6] as well as Rule 153 of the Customary International Humanitarian Law study and commentary thereon in respect of the corresponding rule of command responsibility for failure to prevent, repress or report war crimes). 85. In 2019, the ICRC and the Geneva Academy of International Humanitarian Law and Human Rights published the Guidelines on investigating violations of IHL: Law, policy and good practice (“Guidelines on investigating violations of IHL”). These Guidelines, while noting that international humanitarian law has few provisions on the specific way investigations should be carried out, draw on internationally recognised principles most commonly required for the effectiveness of an investigation (independence, impartiality, thoroughness and promptness, and in a modified form, transparency) and elucidate their practical application to investigations in armed conflict. United Nations Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (“UN Basic Principles and Guidelines”) 86. The UN Basic Principles and Guidelines, adopted by General Assembly Resolution 60/147 of 16 December 2005 (A/RES/60/147), call for States to investigate violations of international humanitarian law “effectively, promptly, thoroughly and impartially” (under II., 3. lit. b). United Nations Human Rights Committee 87. In its General Comment No. 36 on the right to life under Article 6 of the International Covenant on Civil and Political Rights, adopted on 30 October 2018, the Human Rights Committee stated: “63. ... In light of article 2 (1) of the Covenant, a State party has an obligation to respect and ensure the rights under article 6 of all persons who are within its territory and all persons subject to its jurisdiction, that is, all persons over whose enjoyment of the right to life it exercises power or effective control. This includes persons located outside any territory effectively controlled by the State whose right to life is nonetheless affected by its military or other activities in a direct and reasonably foreseeable manner ... 64. Like the rest of the Covenant, article 6 continues to apply also in situations of armed conflict to which the rules of international humanitarian law are applicable, including to the conduct of hostilities. While rules of international humanitarian law may be relevant for the interpretation and application of article 6 when the situation calls for their application, both spheres of law are complementary, not mutually exclusive. Use of lethal force consistent with international humanitarian law and other applicable international law norms is, in general, not arbitrary. By contrast, practices inconsistent with international humanitarian law, entailing a risk to the lives of civilians and other persons protected by international humanitarian law, including the targeting of civilians, civilian objects and objects indispensable to the survival of the civilian population, indiscriminate attacks, failure to apply the principles of precaution and proportionality, and the use of human shields would also violate article 6 of the Covenant. States parties should, in general, disclose the criteria for attacking with lethal force individuals or objects whose targeting is expected to result in deprivation of life, including the legal basis for specific attacks, the process of identification of military targets and combatants or persons taking a direct part in hostilities, the circumstances in which relevant means and methods of warfare have been used, and whether less harmful alternatives were considered. They must also investigate alleged or suspected violations of article 6 in situations of armed conflict in accordance with the relevant international standards ...” The Minnesota Protocol 88. In 2017, the Office of the UN High Commissioner for Human Rights published a revised version of the Minnesota Protocol on the Investigation of Potentially Unlawful Death (“the Minnesota Protocol”), a set of international guidelines, which provides: “21. Where, during the conduct of hostilities, it appears that casualties have resulted from an attack, a post-operation assessment should be conducted to establish the facts, including the accuracy of the targeting. Where there are reasonable grounds to suspect that a war crime was committed, the State must conduct a full investigation and prosecute those who are responsible. Where any death is suspected or alleged to have resulted from a violation of IHL that would not amount to a war crime, and where an investigation (‘official inquiry’) into the death is not specifically required under IHL, at a minimum further inquiry is necessary. In any event, where evidence of unlawful conduct is identified, a full investigation should be conducted.” Inter-American Court of Human Rights 89. In its judgment of 15 September 2005 on the merits, reparations and costs in Mapiripán Massacre v. Colombia, which concerned a massacre of civilians carried out by a paramilitary group with the alleged assistance of the State authorities, the Inter-American Court of Human Rights recognised the existence of a non-international armed conflict and stated that it would take international humanitarian law into account in interpreting the American Convention on Human Rights (paragraphs 114-15). The court went on to determine that the standard against which the investigations into the extra-legal executions had to be measured was one of a “serious, impartial and effective investigation that must not be undertaken as a mere formality destined beforehand to be fruitless” (paragraph 223). Such investigation must draw on all available means in order to discover the truth within a reasonable timeframe, bearing in mind the complexity of the events under investigation and their context (see, in particular, Afro-Descendant Communities Displaced from the Cacarica River Basin (Operation Genesis) v. Colombia, Preliminary Objections, Merits, Reparations and Costs, Judgment of 20 November 2013, paragraphs 370-73). Comparative law MATERIAL 90. According to the information available to the Court, notably of the legislation and practice in thirteen member States of the Council of Europe which participate in military operations abroad (Belgium, France, Ireland, Italy, the Netherlands, Poland, Romania, the Russian Federation, Spain, Sweden, Turkey, Ukraine and the United Kingdom), all of these States empowered the competent domestic authorities to investigate alleged war crimes or wrongful deaths inflicted abroad by members of their armed forces. The investigation is mandatory in eight States; in three States it is in principle non-mandatory according to the broader meaning of discretionary prosecution ( opportunité des poursuites ). The duty to investigate is considered as essentially autonomous in seven States, while in two States it depends on the State jurisdiction to a larger extent, although it seems that attribution to the State of the impugned acts is not a necessary requirement. As regards the procedural guarantees during the investigation of criminal offences allegedly committed by members of the armed forces abroad, domestic law in ten States refers to the general procedural guarantees applicable in any criminal case, whereas in two States, specific legal provisions or principles apply, the extent and quality of which do, however, not seem to be substantially different from those applicable in ordinary criminal cases. Domestic law and practiceAuthorisation of the deployment of German troops as part of ISAF Authorisation of the deployment of German troops as part of ISAF Authorisation of the deployment of German troops as part of ISAF 91. On 22 December 2001 the German Parliament authorised the deployment of German troops to Afghanistan and their participation in ISAF. The authorisation referred to the Bonn Agreement and United Nations Security Council Resolution 1386 (2001) regarding the tasks and responsibilities of the troops. Moreover, the authorisation clarified the right to individual and collective self-defence: “The exercise of the right to individual and collective self-defence remains unaffected [by the participation in ISAF]. The troops deployed in this [ISAF] operation are further authorised to use military force for the defence of others.” 92. On 16 October 2008 the German Parliament prolonged the deployment of German troops in Afghanistan until 13 December 2009. Basic Law ( Grundgesetz ) 93. Article 25 of the German Basic Law reads as follows: “The general rules of international law shall be an integral part of federal law. They shall take precedence over the laws and directly create rights and duties for the inhabitants of the federal territory.” Code of Crimes against International Law (Völkerstrafgesetzbuch) 94. In June 2002, the Code of Crimes against International Law was adopted and entered into force, amending domestic law with a view to the entry into force of the Rome Statute of the International Criminal Court (“the Rome Statute”) on 1 July 2002, including in respect of Germany. Article 153f of the Code of Criminal Procedure (see paragraph 96 below) was introduced at the same time. A key objective of the legislative amendments was to enable the investigation and prosecution of offences falling within the scope of the Rome Statute at the domestic level, not least in view of the principle of complementarity foreseen in the Rome Statute (see Publication of the Federal Parliament ( Bundestagsdrucksache ) no. 14/8524, at p. 12). 95. The relevant provisions of the Code of Crimes against International Law, as in force at the material time, read as follows: Article 1 “This Act shall apply to all criminal offences against international law designated under this Act and to serious criminal offences designated therein even when the offence was committed abroad and has no connection to Germany.” Article 2 “General criminal law shall apply to offences under this Act, except insofar as Articles 1 and 3 to 5 of this Act contain special provisions.” Article 11 War crimes consisting in the use of prohibited methods of warfare “(1) Whoever in connection with an international armed conflict or with an armed conflict not of an international character ... 3. carries out an attack by military means and anticipates with certainty that the attack will cause death or injury to civilians or damage to civilian objects on a scale out of proportion to the concrete and direct overall military advantage anticipated, ... shall be punished with imprisonment for not less than three years. ... (2) Where the perpetrator causes the death or serious injury of a civilian (Article 226 of the Criminal Code) or of a person who is protected under international humanitarian law through an offence pursuant to paragraph (1), numbers 1 to 6, he shall be punished with imprisonment for not less than five years. Where the perpetrator intentionally causes death, the punishment shall be imprisonment for life or for not less than ten years. ...” Criminal investigations 96. The relevant provisions of the German Code of Criminal Procedure regulating criminal investigations read as follows: Article 152 “(1) The public prosecutor’s office shall have the authority to prefer public charges. (2) Except as otherwise provided by law, the public prosecutor’s office shall be obliged to take action in relation to all prosecutable criminal offences, provided there are sufficient factual indications.” Article 153c “(1) The public prosecutor’s office may dispense with prosecuting criminal offences 1. which have been committed outside the territorial scope of this statute ...; ... Offences for which there is criminal liability pursuant to the Code of Crimes against International Law shall be subject to Article 153f. ...” Article 153f “(1) The public prosecutor’s office may dispense with prosecuting a criminal offence for which there is criminal liability pursuant to Articles 6 to 14 of the Code of Crimes against International Law in the cases referred to in Article 153c § 1, numbers 1 and 2, if the suspect is not resident in Germany and is not expected to so reside. If, in the cases referred to in Article 153c § 1, number 1, the suspect is a German national, however, this shall only apply if the offence is being prosecuted before an international court of justice or by a State on whose territory the offence was committed or a citizen of which was injured by the offence. (2) The public prosecutor’s office may dispense with prosecuting an offence for which there is criminal liability under Articles 6 to 14 of the Code of Crimes against International Law in the cases referred to in Article 153c § 1, numbers 1 and 2, in particular if 1. no German national is suspected of having committed the crime; 2. the offence was not committed against a German national; 3. no suspect is, or is expected to be, resident in Germany; 4. the offence is being prosecuted by an international court of justice or by a country on whose territory the offence was committed, a citizen of which is either suspected of the offence, or suffered injury as a result of the offence. ...” Article 160 “(1) As soon as the public prosecutor’s office obtains knowledge of a suspected criminal offence either through a criminal information or by other means it shall investigate the facts to decide whether public charges are to be preferred. (2) The public prosecutor’s office shall ascertain not only incriminating but also exonerating circumstances and shall ensure that evidence, the loss of which is to be feared, is taken. ...” Article 170 “(1) If the investigations provide sufficient reason for preferring public charges, the public prosecutor’s office shall prefer them by submitting a bill of indictment to the competent court. (2) In all other cases the public prosecutor’s office shall terminate the proceedings. The public prosecutor shall notify the suspect thereof if he was examined as such or a warrant of arrest was issued against him; the same shall apply if he requested such notice or if there is a particular interest in the notification.” Article 171 “If the public prosecutor’s office does not grant an application for preferring public charges or after conclusion of the investigation it orders the proceedings to be terminated, it shall notify the applicant, indicating the reasons. The decision shall inform the applicant, if he is at the same time the aggrieved person, of the possibility of contesting the decision and of the time-limit provided therefor (Article 172 § 1).” 97. According to well-established domestic practice, indications that a person may have committed a criminal offence which fall below the threshold of “sufficient factual indications” as set out in Article 152 § 2 of the Code of Criminal Procedure are insufficient for the opening of a formal criminal investigation under Article 160 § 1 of the Code of Criminal Procedure. In such a scenario, the public prosecutor’s office may conduct preliminary investigations in order to establish whether there are “initial grounds for suspicion” ( Anfangsverdacht ) justifying the opening of a formal criminal investigation. In such preliminary investigations, the person concerned does not have the status of an “accused” and no coercive investigatory measures may be undertaken. However, the public prosecutor’s office is authorised to examine witnesses and to procure a judicial examination of witnesses where appropriate (see Offenburg Regional Court, no. Qs 41/93, order of 25 May 1993). Possibilities to challenge a decision by the public prosecutor not to bring charges 98. Decisions made by the public prosecutor’s office not to bring charges are not final determinations in the sense of res judicata. Prosecution may be reopened if there is new evidence or the evidence presents itself in a different light (see Federal Court of Justice, no. 2 StR 524/10, judgment of 4 May 2011, at paragraph 9), for example in the form of subsequent submissions by an aggrieved party. 99. A decision to discontinue a criminal investigation may be challenged by any aggrieved party within one month of receipt of notification, by lodging a motion seeking to compel public charges (Articles 172 et seq. of the Code of Criminal Procedure). The brief in support of such a motion must indicate the facts intended to substantiate the charges and the evidence as to the offence having been committed. This formal requirement is to enable the court to determine whether or not there is sufficient suspicion as to an offence having been committed exclusively based on the content of the brief, without having to study the files or annexes (see Hamm Court of Appeal, no. 3 Ws 209/09, order of 14 July 2009). The petitioner must present the essence of the public prosecutor’s discontinuation decision (Hamm Court of Appeal, no. 1 Ws 135/11, order of 28 April 2011; Federal Constitutional Court, no. 2 BvR 967/07, order 4 September 2008, at paragraph 17). If the petitioner seeks to rely on additional evidence contained in the investigation file, he must provide the essential content of the respective pieces of evidence in his brief, which may require him to elaborate on evidence that may exonerate the suspect (see Federal Constitutional Court, no. 2 BvR 2040/15, order 27 July 2016, at paragraph 15). In assessing whether there are sufficient grounds for suspicion, the court may consider whether the suspect would have to be acquitted in subsequent criminal proceedings based on the principle in dubio pro reo (see Federal Constitutional Court, no. 2 BvR 2318/07, order of 13 December 2007, at paragraph 2). 100. The Federal Constitutional Court is empowered to review and reverse decisions to discontinue proceedings made by public prosecutors and has made use of that power (see no. 2 BvR 878/05, order of 17 November 2005, at paragraph 23). It may find a violation of a person’s fundamental rights where a decision dismissing a motion to compel public charges was based on the excessively formalistic application of the requirements (see no. 2 BvR 912/15, order of 21 October 2015). In cases concerning killings for which State officials may possibly bear responsibility, it has aligned itself with the requirements of this Court’s case-law in respect of effective investigations under Article 2 of the Convention (see no. 2 BvR 2307/06, order of 4 February 2010; no. 2 BvR 2699/10, order of 26 June 2014). Courts Constitution Act ( Gerichtsverfassungsgesetz ) 101. The relevant provisions of the German Courts Constitution Act read as follows: Section 120 “(1) In criminal matters, the Court of Appeal for the district in which the Land government has its seat shall have jurisdiction for the territory of the given Land for hearing and deciding cases at first instance involving ... 8 criminal offences pursuant to the Code of Crimes against International Law. ...” Section 142a “(1) The Federal Prosecutor General shall discharge the duties of the public prosecutor’s office in respect of the criminal matters falling under the first instance jurisdiction of the Courts of Appeal pursuant to section 120(1) and (2) at these courts as well. In order for the prosecution to be transferred to the Federal Prosecutor General it is sufficient if adequate factual indications exist to fulfil the preconditions for his jurisdiction. The public prosecutor’s office shall inform the Federal Prosecutor General without delay of any events that give cause to examine the transfer of prosecution to him or her. If, in the cases covered by section 120(1), the officials of the public prosecutor’s office of a Land and the Federal Prosecutor General cannot agree which of them should take over the prosecution, the Federal Prosecutor General shall decide.” Section 146 “The officials of the public prosecutor’s office must comply with the official instructions of their superiors.” Section 147 “The right of supervision and direction shall lie with: (1) the Federal Minister of Justice and Consumer Protection in respect of the Federal Prosecutor General and the federal prosecutors; ...” THE LAW AdmissibilityThe Court’s competence ratione personae and ratione lociThe parties’ submissions The Court’s competence ratione personae and ratione lociThe parties’ submissions The parties’ submissions The Court’s competence ratione personae and ratione lociThe parties’ submissions The parties’ submissions The parties’ submissions (a) The respondent Government 102. The respondent Government maintained that the application was incompatible ratione personae and ratione loci with the provisions of the Convention. (i) Compatibility ratione personae 103. As regards the Court’s competence ratione personae, the Government referred to Behrami v. France and Saramati v. France, Germany and Norway ((dec.) [GC], nos. 71412/01 and 78166/01, 2 May 2007 – hereinafter “ Behrami and Saramati ”) and submitted that military actions conducted under the ultimate authority and control of the United Nations Security Council, the latter acting pursuant to Chapter VII of the United Nations Charter, could not be attributed to the respective Contracting State. Therefore, the Court was not competent ratione personae to review the military action at issue. The Government further argued that the conclusion in Behrami and Saramati had been confirmed in multiple later decisions by the Court and had to be considered settled case-law. In so far as the Court had concluded that certain military actions in Iraq were attributable to the respective Contracting States in Jaloud v. the Netherlands ([GC], no. 47708/08, ECHR 2014), Al-Jedda v. the United Kingdom ([GC], no. 27021/08, ECHR 2011), and Al-Skeini and Others v. the United Kingdom ([GC], no. 55721/07, ECHR 2011), this was founded on the exceptional circumstances of those cases. These special circumstances were, however, not present in the current case, which was comparable to Behrami and Saramati on a factual level: – ISAF was created by United Nations Security Council Resolution 1386 (2001); it had not existed previously. The Security Council delegated its powers by authorising States participating in ISAF to “take all necessary measures”. The mandate was sufficiently precise and defined the objects of the mission as well as the roles and responsibilities of all parties involved. In addition, a reporting requirement was provided for. – ISAF was commanded and controlled in a manner comparable to KFOR, as a unified command over troops from a large number of States forming a multinational force. The States involved in the military presence included States that were not party to the Convention. – The security presence of ISAF and its military activities in Afghanistan had been repeatedly endorsed by the Security Council and the UN bodies. This endorsement included the air strikes to combat the Taliban. – This assessment was not changed by the fact that what is termed “full command” over the contingent made available by Germany rested with German commanders. Concerning the troop-contributing States there was thus no difference between KFOR and ISAF. (ii) Compatibility ratione loci (α) No exercise of extraterritorial jurisdiction in Afghanistan 104. In the Government’s submission, the Court was furthermore not competent ratione loci to examine the application. The deaths of the applicant’s sons had not occurred in the exercise of extraterritorial jurisdiction by Germany. According to the Court’s well-established case-law, a Contracting State only exercised jurisdiction outside its own territory if the case involved either “effective control over an area” or the exercise of “State agent authority and control”. Neither of these two exceptions were applicable in the present case. 105. Germany had not had effective control over the Kunduz region and the bomb release area. In September 2009, German ISAF troops in the region were involved in the conduct of hostilities in an active combat zone, which was under the control of the insurgents. The number of insurgents in that area was nearly as high as the number of ISAF troops. The ISAF troops stationed in Kunduz were in danger of being attacked by the insurgents or of falling victim to their booby traps whenever they left the garrison. They were only able to take reactive measures and suffered serious losses in battles with the insurgents. ISAF’s troop strength was far too small, when measured against the approximately 8,000 square kilometres of territory concerned and the large number and high level of organisation of Taliban insurgents active in the region, for ISAF to have effective control over the Kunduz region. 106. As regards jurisdiction based on “State agent authority and control”, the case was not comparable to Al-Skeini and Others or Jaloud (both cited above). At no time during the ISAF deployment in Afghanistan was there ever a situation comparable to that in Iraq in 2003 and 2004. The ISAF mission focused solely on lending support to the Afghan civil government in the fight against armed insurgents and in building up Afghan security forces. The Afghan civil government had its own security forces, in particular in the Kunduz area. On the morning following the air strike at issue, it was the Afghan security forces who had cleared the sand bank of the residual weapons still lying there before the arrival of German and other reconnaissance units. The German reconnaissance unit was able to search the site only after a unit of the Afghan security forces afforded it protection against attacks by Taliban insurgents. ISAF did not exercise governmental powers or assume executive functions, for example by exercising police powers in order to maintain general security and order. 107. The air strike of 4 September 2009 did not establish a jurisdictional link between the persons affected by it and the respondent State, as it was an instantaneous extraterritorial act and the provisions of Article 1 did not admit a “cause and effect” notion of “jurisdiction” (the Government referred to Banković and Others v. Belgium and Others (dec.) [GC], no. 52207/99, § 75, ECHR 2001 ‑ XII, and Medvedyev and Others v. France [GC], no. 3394/03, § 64, ECHR 2010 ). This did not lead to an accountability gap, since Contracting States had to comply with their obligations under international humanitarian law. (β) No competence ratione loci based on institution of criminal proceedings 108. In the Government’s submission, the investigative measures that the German authorities had instituted were, in the particular circumstances of the present case, not sufficient to make the complaints under the procedural limb of Article 2 compatible ratione loci with the Convention. Both Güzelyurtlu and Others v. Cyprus and Turkey ([GC], no. 36925/07, 29 January 2019) and Romeo Castaño v. Belgium (no. 8351/17, 9 July 2019) concerned mutual obligations of cooperation, notably duties of cooperation under the procedural limb of Article 2 of the Convention between two Contracting States in criminal matters within the legal space of the Convention. The jurisdictional link for such an obligation to cooperate resulted from the special nature of the Convention as a treaty for the collective enforcement of human rights. It aimed at preventing a vacuum in the system of human rights protection between two Contracting States within the legal space of the Convention and at ensuring that each Contracting State can fulfil its procedural obligation under Article 2 of the Convention. That rationale limited the principle that a jurisdictional link was established by the institution of investigations into deaths that occurred outside of the territory of a State to cases where two or more Contracting States must assume their respective responsibility for the collective enforcement of the Convention. 109. The present case did not concern a failure on the part of Germany to assume its responsibility for the collective enforcement of the Convention. No mutual obligations of cooperation between Contracting States in criminal matters within the legal space of the Convention were at stake. The deaths that were investigated had occurred in military action outside the territory of Council of Europe member States. The special character of the Convention as a collective enforcement treaty among the Contracting States did not come into play. 110. Referring to Güzelyurtlu and Others (cited above), Markovic and Others v. Italy ([GC], no. 1398/03, ECHR 2006 ‑ XIV) and Chagos Islanders v. the United Kingdom ((dec.), no. 35622/04, 11 December 2012), the Government asserted that the institution of investigations or proceedings could establish jurisdiction only with regard to measures that the State could take exclusively within its territorial jurisdiction – thus limiting the subject matter of the Court’s review to acts which took place there – or, in the case of Turkey in Güzelyurtlu and Others, on the basis of jurisdiction otherwise established. Where extraterritorial investigations were conducted, jurisdiction was established in line with the exceptional nature of extraterritorial jurisdiction in military missions outside the territories of the Contracting States ( Al-Skeini and Others, § 149, and Jaloud, § 152, both cited above). The formal and instantaneous act of a Contracting State to decide to institute a criminal investigation could not, in itself, establish a jurisdictional link and trigger the procedural obligation under Article 2, irrespective of any other circumstance of a given case. It was decisive whether the impugned investigation itself was of an extraterritorial nature. The essence of the applicant’s objections concerned investigatory measures which were, or in his view should have been, taken outside German territory and otherwise outside its jurisdiction. The specific challenges for the investigation, which stemmed from the extraterritorial situation in an active combat zone during a non-international armed conflict, continued to decisively influence the ensuing domestic proceedings. 111. There was no need to expand the reach of the Convention in order to avoid an accountability gap, as Germany was already required by international humanitarian law and domestic criminal law to examine the death of civilians during the conduct of hostilities. Moreover, Germany was also obliged to investigate under international criminal law in the present case. The Rome Statute of the International Criminal Court, however, concerned the jurisdiction of that court, not that of Germany for the purposes of Article 1 of the Convention. 112. If the scope of Güzelyurtlu and Others (cited above) were extended to investigations into extraterritorial military action in the conduct of hostilities not involving the exercise of extraterritorial jurisdiction within the meaning of Article 1, States would be obliged to perform impossible tasks in terms of establishing facts extraterritorially. Such an approach would also circumvent the existing case-law in respect of the exceptional nature of extraterritorial jurisdiction and the Court’s competence ratione personae. Moreover, the establishment of jurisdiction under Article 1 would become arbitrary. If the mere fact of instituting proceedings was sufficient to establish a jurisdictional link even where no other grounds for a jurisdictional link were shown to exist, this could create an incentive not to conduct such proceedings at all. In addition, such an approach could entail an inconsistent application of the Convention among the Contracting States participating in the same extraterritorial military mission. If one State instituted proceedings and another did not, the latter could evade responsibility under the Convention. 113. The special features that had exceptionally triggered a jurisdictional link in Güzelyurtlu and Others (cited above) were not present in this case. In particular, the retention of exclusive criminal jurisdiction over German ISAF personnel in respect of offences which might be committed by them on the territory of Afghanistan, under section I, subsection 3, of the ISAF Status of Forces Agreement (see paragraph 75 above) did not constitute a “special feature” for the purposes of establishing a jurisdictional link within the meaning of Article 1 of the Convention (the Government referred to Güzelyurtlu and Others, cited above, § 190). That provision was a rule on immunity, which excluded ISAF personnel from prosecution by the Afghan authorities. This retention of criminal jurisdiction concerned the internal relationship between the soldier and the sending State. It did not open up any possibility for the civilian law-enforcement authorities of troop-contributing States to pursue criminal investigations of their own on Afghan territory, nor did the delegation of powers in the pertinent United Nations Security Council Resolutions. Such investigations might have interfered with the sovereignty of Afghanistan. The legal powers of the military police in connection with their authorisation to conduct internal investigations were limited. They were not allowed to summon Afghan witnesses, nor to adopt investigative or coercive measures in order to secure evidence. These restrictions on Germany’s legal powers to investigate in Afghanistan reinforced the argument that the United Nations was the entity responsible, not Germany. There was no basis for attribution or extraterritorial jurisdiction in respect of the investigation. A rule similar to section I, subsection 3, of the ISAF Status of Forces Agreement had also been included in the status of forces agreement in Behrami and Saramati (cited above) and had not given rise to doubts there. (b) The applicant 114. The applicant submitted that the facts of which he complained had occurred within the jurisdiction of Germany for the purposes of Article 1 of the Convention. (i) Establishment of a jurisdictional link by instituting a criminal investigation 115. The applicant submitted that the criminal investigation concerning the death of his sons carried out by the German authorities was sufficient to establish a jurisdictional link for the purposes of Article 1 between Germany and the applicant. In Güzelyurtlu and Others (cited above), the deaths that were investigated had also occurred outside the territorial jurisdiction of the State in respect of which the institution of the criminal investigation established a jurisdictional link. That approach was in line with the nature of the procedural obligation under Article 2, which had evolved into a separate and autonomous obligation, which the Court had recognised as being “detachable” and capable of binding the State even if the death had occurred outside its jurisdiction. The approach also followed the same rationale as Markovic and Others (cited above), Aliyeva and Aliyev v. Azerbaijan (no. 35587/08, 31 July 2014) and Gray v. Germany (no. 49278/09, 22 May 2014). 116. Contrary to the Government’s submission, the obligation to seek cooperation, as a component of the procedural obligation under Article 2, was not confined to seeking mutual cooperation between Contracting States. The Court had made clear in Güzelyurtlu and Others (cited above) that there were two types of cases where the duty to cooperate might arise with respect to the procedural obligation under Article 2. First, there were cases where a State, as a part of its own obligation to investigate, might have an obligation to seek cooperation from other States. Second, there were cases where a State might have an obligation to assist another State that was conducting an investigation under its jurisdiction. It was only in relation to that latter scenario that the Court had spoken of the obligation of mutual cooperation among Contracting States in Güzelyurtlu and Others. The present case, however, concerned the former scenario, as it related to Germany’s obligation to seek cooperation for an investigation that it was conducting. There was nothing in the case-law or in logic that limited Germany to seeking cooperation only from other Contracting States. 117. Finding that the initiation of investigations was sufficient to establish a jurisdictional link would not render the establishment of jurisdiction arbitrary or act as a deterrent to the opening of investigations. Even where no investigation or proceedings were instituted, a jurisdictional link based on the procedural obligation imposed by Article 2 would be present where a case had “special features” (the applicant referred to Güzelyurtlu and Others, cited above, § 190). Those special features depended on the particular circumstances of the case and would, in the applicant’s submission, include whether the State had an obligation under domestic or international law to conduct an investigation. In the present case, such an obligation existed under both domestic and international law, as the Government had conceded, given that the criminal liability of Colonel K. for, inter alia, an alleged war crime was at issue. 118. The retention of criminal jurisdiction over its service personnel under section I, subsection 3, of the ISAF Status of Forces Agreement (see paragraph 75 above) was of significance in this respect. Contrary to the Government’s submission, this was not a rule on immunity, but one on jurisdiction. Germany had explicitly retained criminal jurisdiction over its service personnel vis-à-vis the Afghan authorities, the United Nations and ISAF. This supported the argument that the acts carried out by German actors in Afghanistan were attributable to Germany. Moreover, Germany had retained full control over that investigation, questioned the suspect, heard witnesses, collected evidence and taken investigative steps which had also, however insufficiently, involved the applicant. Germany’s jurisdiction had never been contested over the course of that investigation. All alleged violations, whether on German territory or abroad, were committed by German officials. 119. If the jurisdictional link were based merely on the initiation of proceedings in Germany, the Court’s review would not be confined to investigative measures within Germany’s territory. To hold otherwise would be contrary to the Court’s case-law, which saw the jurisdictional link in line with the nature of the procedural obligation to carry out an effective investigation. Some of the investigative flaws which he alleged had occurred in Afghanistan, others in Germany. It was not decisive that the facts that triggered the investigation had taken place outside the Council of Europe member States’ territory. The Convention was not only applicable in the legal space of the Contracting States. Weight had to be given to the fact that the incident which had to be investigated was, in the applicant’s submission, attributable to Germany and fell within its extraterritorial jurisdiction. (ii) Germany’s jurisdiction in respect of the impugned investigation was also established through other circumstances 120. The applicant submitted that, even in the absence of a criminal investigation, a jurisdictional link for the purposes of Article 1 would be established. The facts underlying the present application fell within Germany’s extraterritorial jurisdiction because Germany had exercised “control” over the victims of the air strike. Relying on General Comment No. 36 of the Human Rights Committee (see paragraph 87 above) and on Al-Skeini and Others (cited above, § 137), he argued that it was decisive that Germany was able to affect the relevant rights – in the present case the right to life – of the applicant’s sons, who were killed by the air strike. No logical distinction could be made between the exercise of power, so as to be able to affect the right to life, in the context of a patrol, a checkpoint or an air operation. The fact that Colonel K. had decided not to deploy ground troops but to resort to an air strike could not justify reaching a different conclusion with regard to jurisdiction to that reached in Al-Skeini and Others and Jaloud (both cited above). The air strike was a manifestation of Germany’s exercise of public powers in the region. The German troops had operated with the consent and at the invitation of the Afghan Government and exercised some of the public powers normally exercised by local or sovereign authorities. They were mandated by the United Nations Security Council to support the Afghan Transitional Authority and its successors in the maintenance of security, including through the operation of checkpoints, regular patrols and security operations in the fight against the insurgency. A complete breakdown of the Afghan State order was not necessary for the establishment of a jurisdictional link on this ground. 121. Germany had also exercised effective control over the area in which the air strike that killed the applicant’s sons occurred. The German-commanded RC North comprised approximately 5,600 troops and the site of the air strike was only seven kilometres from the base of PRT Kunduz, where around 1,500 soldiers had been present at the time of the air strike. In this regard the applicant pointed to the fact that effective control could be limited to the specific area where the incident occurred, at that time, and did not require the State to be an occupying power (on the applicant referred to Jaloud, cited above, §§ 139 and 142, and Issa and Others v. Turkey, no. 31821/96, §§ 74 and 76, 16 November 2004). The proximity to the German base and the possibility of immediately deploying ground troops and obtaining close air support – which had arrived at the site of the hijacked tankers within minutes – confirmed that the area where the air strike occurred had been under effective German control. A situation of active hostilities did not per se exclude the possibility that a State exercised, at a certain moment, effective control over an area, particularly with regard to the right to life of the people in that area. The Court had previously found that violations of the Convention committed in the context of an armed conflict fell within the jurisdiction of a Contracting State for the purposes of Article 1, including during phases of active hostilities (the applicant referred to Hassan v. the United Kingdom [GC], no. 29750/09, ECHR 2014). 122. The facts that gave rise to the applicant’s complaint were also attributable to Germany. The applicant argued that the approach to the test of attribution as set out in Behrami and Saramati (cited above) had been refined in Al-Jedda (cited above), which introduced “effective control” as one of the prerequisites for the attribution of conduct. In that judgment, the Court also recognised that certain conduct could be attributed to more than one entity, namely the United Nations and the Contracting State. This concept of multiple attribution had long been recognised by the International Law Commission. While COMISAF had had operational command, Germany had retained full command over its troops (the applicant referred to Jaloud, cited above). Colonel K. and the German troops had not been placed “at the disposal” of any foreign power or international organisation and had not been under the “exclusive direction and control” of the United Nations Security Council, NATO, COMISAF or any other State. This was reflected in the sequence of binding orders, given by Colonel K. without involving his superiors, leading to the air strike that killed the applicant’s sons. This conduct differed significantly from that in Behrami and Saramati (cited above), as did the legal framework for the conduct of the German troops in Kunduz. Third-party interveners (a) The Governments of Denmark, France, Norway, Sweden and the United Kingdom 123. Relying on Behrami and Saramati (cited above), the intervening Governments submitted that the applicant’s complaints were not compatible ratione personae with the Convention. The United Nations Security Council exercised ultimate authority and control over ISAF. 124. The intervening Governments asserted that Germany had not exercised extraterritorial jurisdiction for the purposes of Article 1. Germany had neither exercised effective control over the area in question nor State agent authority and control. 125. There were fundamental differences between the present case and that of Güzelyurtlu and Others (cited above). Opening an investigation at the domestic level concerning facts occurring in the framework of a military operation abroad under the mandate of an international organisation could not in itself suffice to establish a jurisdictional link for the purposes of Article 1. To hold otherwise would put in question the Behrami and Saramati and Banković and Others jurisprudence and could risk resulting in a universal application of the Convention. This could affect States’ willingness and ability to engage in multilateral military operations abroad and could have a chilling effect on States instituting investigations. International humanitarian law was the lex specialis governing situations of armed conflict and Contracting States had to comply with its obligations even in the absence of the Convention being applicable. There was deliberately no general duty under international humanitarian law to investigate each and every death occurring in armed conflict; instead a duty to investigate arose only under certain circumstances. 126. More specifically, the Governments of France and the United Kingdom questioned where Germany’s investigative obligation derived from, given that the incident to be investigated was, in their submission, attributable to the United Nations rather than to Germany. Such a situation was different from that in Šilih v. Slovenia ([GC], no. 71463/01, § 159, 9 April 2009) and Janowiec and Others v. Russia ([GC], nos. 55508/07 and 29520/09, § 132, ECHR 2013), which had concerned investigations into acts that occurred outside the respondent State’s temporal jurisdiction. The Government of the United Kingdom added that it would contradict the Monetary Gold principle ( Monetary Gold Removed from Rome in 1943 (Preliminary Question), Judgment of 15 June 1954, I.C.J. Reports 1954, p. 19) to impose investigative obligations which would inevitably require assessments to be made on the role of other, likely non-Contracting State, allies. 127. The Governments of France and the United Kingdom added that section I, subsection 3 of the ISAF Status of Forces Agreement dealt with disciplinary matters of service personnel and concerned investigative measures taking place in Germany. Neither ISAF nor the United Nations nor the Afghan authorities had such disciplinary powers. The provision had a limited nature, which did not allow for broader conclusions and which did not make the respective investigatory measures attributable to troop-contributing States. It did not constitute a “special feature” in respect of jurisdiction for the purposes of Article 1 in cases concerning the procedural limb of Article 2. When looking at the investigation in isolation, the legal constraints imposed by the legal framework of the United Nations and the ISAF mission, as well as Afghan law, had to be considered. Notably, the German prosecution authorities were not allowed to conduct investigations in Afghanistan. 128. The Governments of France and the United Kingdom pointed out that the Rome Statute of the International Criminal Court concerned the competence of that court and dealt with individual criminal responsibility. They emphasised that individual criminal responsibility should not be confused with a State’s responsibility under the Convention and concluded that the provisions of the Rome Statute could not have any bearing on the determination of a State’s jurisdiction under Article 1 of the Convention. (b) The Human Rights Centre of the University of Essex, the Open Society Justice Initiative, the Institute of International Studies of the Università Cattolica del Sacro Cuore di Milano and Rights Watch (UK) 129. The Open Society Justice Initiative and the Institute of International Studies of the Università Cattolica del Sacro Cuore di Milano submitted that there was a trend in international law towards recognising States’ procedural obligations where they had direct control or authority over a victim’s rights, irrespective of where the incident took place and regardless of whether the State also had jurisdiction over the victim’s substantive right under Article 2. 130. Alternatively, if jurisdiction over a victim’s substantive right under Article 2 were required in order to establish whether a procedural obligation arose, the Open Society Justice Initiative and Rights Watch (UK) pointed to the growing recognition that international human rights law obligations arose where a State exercised power, control or authority over a person’s rights. The Human Rights Centre of the University of Essex asserted that extraterritorial jurisdiction existed in relation to the right to life on the basis of targeting or the use of force. Rights Watch (UK) and the Institute of International Studies of the Università Cattolica del Sacro Cuore di Milano advocated a functional approach to the analysis of jurisdiction, as envisaged by Judge Bonello in his concurring opinion in Al-Skeini and Others (cited above). 131. The Open Society Justice Initiative added that if international humanitarian law applied to the conflict and to the extraterritorial incident in question, then the State was bound by international humanitarian law obligations to conduct an investigation and no further question of jurisdiction would arise. The Court’s assessment (a) As to the applicable principles 132. The applicant complained exclusively under the procedural limb of Article 2 of the Convention about the criminal investigation into the air strike which had killed his two sons. In Güzelyurtlu and Others (cited above), the Court recently set out the principles concerning the existence of a “jurisdictional link” for the purposes of Article 1 of the Convention in cases where the death occurred outside the territory of the Contracting State in respect of which the procedural obligation under Article 2 of the Convention was said to arise. After summarising the relevant case-law up to that point, the Court held: “ (b) The Court’s approach 188. In the light of the above-mentioned case-law it appears that if the investigative or judicial authorities of a Contracting State institute their own criminal investigation or proceedings concerning a death which has occurred outside the jurisdiction of that State, by virtue of their domestic law (e.g. under provisions on universal jurisdiction or on the basis of the active or passive personality principle), the institution of that investigation or those proceedings is sufficient to establish a jurisdictional link for the purposes of Article 1 between that State and the victim’s relatives who later bring proceedings before the Court (see, mutatis mutandis, Markovic and Others, cited above, §§ 54-55). 189. The Court would emphasise that this approach is also in line with the nature of the procedural obligation to carry out an effective investigation under Article 2, which has evolved into a separate and autonomous obligation, albeit triggered by acts in relation to the substantive aspects of that provision (see Šilih v. Slovenia [GC], no. 71463/01, § 159, 9 April 2009, and Janowiec and Others v. Russia [GC], nos. 55508/07 and 29520/09, § 132, ECHR 2013). In this sense it can be considered to be a detachable obligation arising out of Article 2 and capable of binding the State even when the death occurred outside its jurisdiction (see, mutatis mutandis, Šilih, § 159, in relation to the compatibility ratione temporis ). 190. Where no investigation or proceedings have been instituted in a Contracting State, according to its domestic law, in respect of a death which has occurred outside its jurisdiction, the Court will have to determine whether a jurisdictional link can, in any event, be established for the procedural obligation imposed by Article 2 to come into effect in respect of that State. Although the procedural obligation under Article 2 will in principle only be triggered for the Contracting State under whose jurisdiction the deceased was to be found at the time of death, ‘special features’ in a given case will justify departure from this approach, according to the principles developed in Rantsev [ v. Cyprus and Russia, no. 25965/04], §§ 243-44[, ECHR 2010]. However, the Court does not consider that it has to define in abstracto which ‘special features’ trigger the existence of a jurisdictional link in relation to the procedural obligation to investigate under Article 2, since these features will necessarily depend on the particular circumstances of each case and may vary considerably from one case to the other.” 133. Applying those principles to the case at hand, the Court went on to find that a “jurisdictional link” between the applicants – who had complained under the procedural limb of Article 2 in respect of their relatives’ deaths in the Cypriot government-controlled part of Cyprus – and Turkey was established on two grounds, each of which would have sufficed in itself to establish such a jurisdictional link within the scope of that case (see Güzelyurtlu and Others, cited above, §§ 191-96). A jurisdictional link was established, first, because the authorities of the “Turkish Republic of Northern Cyprus” (the “TRNC”) had instituted their own criminal investigation into the murder of the applicants’ relatives, which gave the “TRNC” courts criminal jurisdiction over the individuals who had committed the crimes wherever they were to be found on the whole island of Cyprus, and which accordingly engaged Turkey’s responsibility under the Convention. A jurisdictional link was also established because there were two special features related to the situation in Cyprus: (i) the northern part of Cyprus was under effective control of Turkey for the purposes of the Convention, which justified a departure from the general approach established in Rantsev (cited above ) and therefore engaged Turkey’s procedural obligation under Article 2; and (ii) the presence of the murder suspects in the territory controlled by Turkey had been known to the Turkish and “TRNC” authorities and prevented Cyprus from fulfilling its Convention obligations. (b) Application of these principles to the present case 134. The German authorities instituted, under domestic law, a criminal investigation into the deaths of the applicant’s two sons and of other civilians in connection with the air strike on 4 September 2009 near Kunduz. 135. Without calling into question the principles set out in Güzelyurtlu and Others (cited above) and the application of those principles to the facts of that case, the Court considers that there are significant differences between that case and the present one. In its opinion, the principle that the institution of a domestic criminal investigation or proceedings concerning deaths which occurred outside the jurisdiction ratione loci of that State, not within the exercise of its extraterritorial jurisdiction, is in itself sufficient to establish a jurisdictional link between that State and the victim’s relatives who bring proceedings before the Court (ibid., §§ 188, 191 and 196), does not apply to the factual scenario at issue in the present case. The latter indeed differs from Güzelyurtlu and Others in that the deaths investigated by the German prosecution authorities had occurred in the context of an extraterritorial military operation within the framework of a mandate given by a resolution of the United Nations Security Council acting under Chapter VII of the United Nations Charter, outside the territory of the Contracting States to the Convention. In taking this approach, the Court is also mindful of the concerns raised by the respondent Government and the intervening Governments that establishing a jurisdictional link merely on the basis of the institution of an investigation may have a chilling effect on instituting investigations at the domestic level into deaths occurring in extraterritorial military operations, and result in an inconsistent application of the Convention in respect of Contracting States participating in the same operation. If the mere fact of instituting a domestic criminal investigation into any death which has occurred anywhere in the world were sufficient to establish a jurisdictional link, without any additional requirements, this would excessively broaden the scope of application of the Convention. 136. However, in Güzelyurtlu and Others the Court found that a jurisdictional link had also been established in view of the “special features” of that case. It considered that such special features, which it did not define in abstracto, could establish a jurisdictional link bringing the procedural obligation imposed by Article 2 into effect, even in the absence of an investigation or proceedings having been instituted in a Contracting State in respect of a death which occurred outside its jurisdiction (ibid., § 190). This also applies in respect of extraterritorial situations outside the legal space of the Convention (see, mutatis mutandis, Markovic and Others, cited above, §§ 54-55) as well as in respect of events occurring during the active hostilities phase of an armed conflict (see Georgia v. Russia (II) [GC], no. 38263/08, §§ 329-32, 21 January 2021). 137. In the present case the Court considers, firstly, that Germany was obliged under customary international humanitarian law to investigate the air strike at issue, as it concerned the individual criminal responsibility of members of the German armed forces for a potential war crime (see, in particular, Rule 158 of the Customary International Humanitarian Law study by the ICRC, and the obligation of States engaging in multinational operations under the auspices of an international organisation to ensure respect for the entire body of international humanitarian law, including customary international humanitarian law, by their national contingent, including by the exercise of disciplinary and criminal powers retained by them, cited in paragraph 83 above; see also the UN Basic Principles and Guidelines, cited in paragraph 86 above, and further guidance from international human rights bodies, cited in paragraphs 87-89 above). The existence of a duty to investigate under international law, with which the respondent Government agreed in the present case, reflects the gravity of the alleged offence (see also Georgia v. Russia (II), cited above, § 331). 138. The Court considers, secondly, that the Afghan authorities were prevented, for legal reasons, from themselves instituting a criminal investigation against Colonel K. and Staff Sergeant W. in respect of the alleged offence. Under section I, subsection 3, of the ISAF Status of Forces Agreement, the troop-contributing States had indeed retained exclusive jurisdiction over the personnel they contributed to ISAF in respect of any criminal or disciplinary offences which their troops might commit on the territory of Afghanistan (see paragraph 75 above), as is common practice for troop-contributing States in United Nations-authorised military missions. The respondent Government and third-party Governments submitted that that provision constituted a rule on immunity. In the Court’s opinion, this is true in so far as it shields the ISAF personnel of troop-contributing States from prosecution by the Afghan authorities. At the same time, however, it is also a rule regulating jurisdiction, as the applicant submitted: it clarifies who has jurisdiction over ISAF personnel in criminal matters and provides that only the troop-contributing States are entitled to institute a criminal investigation or proceedings against the personnel they contribute to ISAF, even in cases of alleged war crimes. If the troop-contributing States do not exercise the criminal jurisdiction to investigate allegations that the personnel they contribute to ISAF (or other multinational military missions) committed criminal offences, this may lead to situations of impunity, including in respect of offences entailing individual criminal responsibility under international law. 139. Thirdly, the German prosecution authorities were also obliged under domestic law to institute a criminal investigation, as the Government confirmed. The criminal investigation was conducted by the Federal Prosecutor General because it concerned the potential liability of Colonel K. and Staff Sergeant W., two German nationals, for, inter alia, a war crime as set forth in the Code of Crimes against International Law. The Federal Prosecutor General has exclusive competence to prosecute offences under that Code (see paragraph 101 above), which are subject to the principle of universal jurisdiction (see paragraph 95 above) and to the principle of mandatory prosecution. Under domestic law the German authorities could only have dispensed with such an investigation if the alleged offence had been investigated either before an international tribunal or by the authorities on whose territory the alleged offence occurred or whose nationals were victims (see paragraph 96 above). The latter two scenarios were precluded in the present case by Germany’s retention of exclusive jurisdiction over its troops, under the ISAF Status of Forces Agreement, in respect of any criminal offences which these might commit on the territory of Afghanistan. 140. In that connection the Court observes that the offences punishable under the German Code of Crimes against International Law are serious in nature. The Code and the related provision in the Code of Criminal Procedure were adopted against the background of Germany’s ratification of the Rome Statute in order to enable the investigation and prosecution of those offences at the domestic level and to avoid impunity (see paragraph 94 above). 141. The Court further observes that according to the information available to it, in the majority of those Contracting States which participate in military deployments overseas, the competent domestic authorities are obliged under domestic law to investigate alleged war crimes or wrongful deaths inflicted abroad by members of their armed forces, and the duty to investigate is considered essentially autonomous (see paragraph 90 above). 142. In the present case the fact that Germany retained exclusive jurisdiction over its troops in respect of serious crimes which, moreover, it was obliged to investigate under international and domestic law constitutes “special features” which in their combination trigger the existence of a jurisdictional link for the purposes of Article 1 of the Convention in relation to the procedural obligation to investigate under Article 2. 143. The Court notes that the applicant did not complain about the substantive act which gave rise to the duty to investigate. It therefore does not have to examine whether, for the purposes of Article 1 of the Convention, there is also a jurisdictional link in relation to any substantive obligation under Article 2. It emphasises, however, that it does not follow from the mere establishment of a jurisdictional link in relation to the procedural obligation under Article 2 that the substantive act falls within the jurisdiction of the Contracting State or that the said act is attributable to that State. 144. Accordingly, the scope of the present case is limited to the investigative acts and omissions by German military personnel in Afghanistan that were undertaken in accordance with the retention of exclusive jurisdiction under the ISAF Status of Forces Agreement over German troops in respect of any criminal or disciplinary offences which these might commit on the territory of Afghanistan, as well as to acts and omissions of the prosecution and judicial authorities in Germany. These are capable of giving rise to the responsibility of Germany under the Convention (compare Jaloud, cited above, §§ 154-55). 145. The Court does not overlook the restrictions on Germany’s legal powers to investigate in Afghanistan, or the fact that the deaths to be investigated occurred in the context of active hostilities. However, such circumstances do not per se exclude the determination that further investigatory measures, including in Afghanistan, may have been necessary, including through the use of international legal assistance and modern technology. The specific challenges to the investigation relate to the scope and content of the procedural obligation under Article 2 incumbent on the German authorities and thus to the merits of the case (see Güzelyurtlu and Others, cited above, § 197). The Government’s further objectionThe parties’ submissions The parties’ submissions The parties’ submissions 146. The Government submitted that the applicant had not exhausted all domestic remedies concerning his objections of a lack of independence – both in Afghanistan (see paragraph 158 below) and in Germany (because of pressure allegedly exerted by the Federal Ministry of Defence on the Dresden Public Prosecutor General and because of the abstract possibility for the Federal Ministry of Justice to issue binding directives to the Federal Prosecutor General) – and a lack of reasonable expedition of the investigations (see paragraphs 164-66 below). He had not raised these complaints, not even in substance, either in his constitutional complaint to the Federal Constitutional Court, or in his motion to compel public charges before the Düsseldorf Court of Appeal. His unspecified references to the general obligation to conduct effective investigations under Article 2 of the Convention did not suffice in this respect. He had not mentioned the relevant criteria in respect of these specific complaints and had not advanced any arguments. He had not even elaborated on these aspects in his factual description of the investigation in his submissions. 147. The applicant asserted that he had exhausted domestic remedies as required by Article 35 § 1 of the Convention. He had raised the complaints that he was now invoking before the Court at least in substance before the domestic courts. Both in his motion to compel public charges and in his constitutional complaint he had described in detail the course and duration of the investigation and alleged that it had suffered from several deficiencies, referring to the obligation under Article 2 of the Convention to conduct an effective investigation. The Federal Constitutional Court was in a position to rule on the complaints made by the applicant. The situation was similar to that in Hentschel and Stark v. Germany (no. 47274/15, 9 November 2017). The Court’s assessment 148. The Court reiterates 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 has indeed been raised beforehand, in substance, before the domestic authorities. That is because “it would be contrary to the subsidiary character of the Convention machinery if an applicant, ignoring a possible Convention argument, could rely on some other ground before the national authorities for challenging an impugned measure, but then lodge an application before the Court on the basis of the Convention argument” (see, among other authorities, Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 117, 20 March 2018, with further references). 149. Where the applicant complains of the lack of an effective criminal investigation under the procedural limb of Article 2 or 3 of the Convention, it is sufficient, in order to comply with Article 35 § 1 of the Convention, including with regard to legal arguments not explicitly raised at the domestic level, if the applicant has challenged the effectiveness of that investigation before the competent domestic court and, by describing the course and duration of the investigation and subsequent court proceedings in detail, referred to the relevant factual elements for that court to assess the investigation’s effectiveness (compare Hentschel and Stark, cited above, §§ 64 and 66). In this respect, the Court reiterates that compliance with the procedural requirement of Article 2 is assessed on the basis of several essential parameters which are interrelated and which, taken jointly rather than separately, enable the degree of effectiveness of the investigation to be assessed (see Mustafa Tunç and Fecire Tunç v. Turkey [GC], no. 24014/05, § 225, 14 April 2015). 150. In the present case it is not disputed that the applicant challenged the effectiveness of the investigation before the Federal Constitutional Court and that he made references to the procedural obligation under Article 2 of the Convention. It is, by contrast, in dispute between the parties whether, in the factual description of the investigation and court proceedings in his submissions to the Federal Constitutional Court, he sufficiently elaborated on certain aspects which he later alleged, in his application before the Court, to be flaws in the investigation. 151. The Court observes that the applicant described in his constitutional complaint the on-site assessment performed by the team of PRT Kunduz in the aftermath of the air strike, the report of the German military police and the course of the investigations undertaken by the German prosecution authorities. He thus referred before the Federal Constitutional Court to the relevant factual elements in respect of his allegations about delays with the on-site assessment by the German military contingent in the aftermath of the air strike, the lack of independence of the persons involved in it, the delay in opening the formal criminal investigation and the ineffectiveness of the preliminary investigations. The Court finds that the applicant thus referred before the Federal Constitutional Court to the relevant factual elements regarding the above aspects, such as to enable that court to assess the effectiveness of the investigation. The Government’s objection of non-exhaustion of domestic remedies must therefore be dismissed in respect of those aspects. 152. By contrast, the applicant’s constitutional complaint did not refer to the alleged lack of independence of the investigation in Germany. The Court considers that it can be left open whether the applicant exhausted domestic remedies in respect of this specific argument, because it is in any event inadmissible as being manifestly ill-founded. The Court considers that the interaction between the Federal Ministry of Defence and the Dresden Public Prosecutor General in the context of the preliminary investigation carried out by the latter (see paragraph 30 above) was from the outset incapable of affecting the independence of the investigation, given that the Federal Prosecutor General, who had commenced a preliminary investigation on 8 September 2009 (see paragraph 30 above), had exclusive competence for the investigation and prosecution of offences under the Code of Crimes against International Law and that the Dresden Public Prosecutor General was obliged by law to transfer the investigation concerning Colonel K.’s liability for offences under that Code to the Federal Prosecutor General without delay (see paragraph 101 above). There are no indications that the Federal Ministry of Defence tried to influence or interfere with the Federal Prosecutor General’s investigation. Moreover, a lack of independence cannot be deduced from the abstract possibility for the Federal Ministry of Justice to issue binding directives to the Federal Prosecutor General, it being undisputed that no such directives were issued in the present case (see Mustafa Tunç and Fecire Tunç, cited above, § 222). Conclusion 153. With the exception of the submissions in respect of the alleged lack of independence of the investigation undertaken in Germany, the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It is also not inadmissible on any other grounds. The Court therefore declares it admissible. Merits 154. The applicant complained under the procedural limb of Article 2 of the Convention that the investigation into the air strike that killed, inter alios, his two sons had not been effective. In addition to alleging flaws in the investigation, the applicant also complained, relying on Article 13 of the Convention taken in conjunction with Article 2, that he had had no effective domestic remedy to challenge the decision of the German Federal Prosecutor General to discontinue the investigation. 155. As the essence of the applicant’s complaint is that no individual was prosecuted for his sons’ deaths, the Court considers it appropriate to examine the complaints solely under the procedural aspect of Article 2 of the Convention (see Armani Da Silva v. the United Kingdom [GC], no. 5878/08, §§ 291-92, 30 March 2016, and Hentschel and Stark, cited above, § 45). The provision in question reads as follows: “1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.” The parties’ submissionsThe applicant The applicant The applicant 156. The applicant submitted that the right not to be arbitrarily deprived of one’s life also applied in times of armed conflict, as did the obligation to effectively investigate under the procedural limb of Article 2 of the Convention. International humanitarian law was already taken into account in Article 15 § 2 of the Convention and did not apply here. However, even if international humanitarian law had applied in the present case, the investigation still had to live up to the standards of international humanitarian law and international human rights law in terms of independence, impartiality, thoroughness, effectiveness, promptness and transparency. The normal Convention standards did not disappear even if the Convention was interpreted in the light of international humanitarian law. 157. The investigation in the present case had been ineffective because (i) it had not been conducted by sufficiently independent persons; (ii) the evidence gathered had been one-sided and insufficient investigative measures had been taken to establish the facts, with surrounding circumstances not investigated at all; (iii) the investigation had not been instituted promptly and had not been conducted with reasonable expedition; and (iv) the applicant as a next of kin had not been sufficiently involved. (a) Effectiveness of the investigation (i) Independence 158. In the applicant’s submission, the persons responsible for and carrying out the investigative steps in Afghanistan had lacked the necessary independence from those implicated in the air strike of 4 September 2009. The members of the team which conducted the initial on-site reconnaissance eleven hours after the air strike had been direct colleagues of the suspects. As they served under Colonel K.’s command, they had even stood in a hierarchical relationship to him. All investigators involved had been part of the German military contingent in Afghanistan and neither team had been focused on securing evidence or identifying responsibilities. The soldiers involved in the air strike had not been separated from each other, which entailed a risk of collusion. (ii) The evidence taken was insufficient 159. The applicant submitted that the German prosecutors had not carried out any investigatory steps in Afghanistan. The failure to visit the site of the air strike indicated a violation of Article 2. The Federal Prosecutor General had based his decision almost exclusively on fact-finding from external sources, in particular by military personnel, which had not been compiled with the aim of identifying criminal responsibility and had not been conducted under criminal procedural law. The Federal Prosecutor General had not made use of a list of possible civilian victims handed over by UNAMA and had failed to contact the relatives of the affected persons in Afghanistan, including the applicant. 160. The course of the investigation indicated that the result was pre-determined. The Federal Prosecutor General’s investigation had started with a rigid five to six-week schedule, which did not leave room for supplementary investigations. According to that schedule, only one further investigative measure was to be taken, namely the questioning of the two suspects and of two witnesses, both of whom were subordinates of Colonel K. and had been present at the command post at the time of the air strike. That questioning appeared to be a sheer formality. A thorough investigation with an open outcome would have allowed for further investigative measures to be taken. 161. The investigation did not fulfil its purpose of ascertaining the circumstances surrounding the events and of determining whether the force used had been lawful. Considerable uncertainty remained regarding the conformity of the air strike with international humanitarian law. The number of victims and their status as civilian or combatant was never determined, nor was the meaning of the terms “insurgent” or “Taliban” – which were broad and did not define legitimate military targets – clarified. Consequently, it was impossible to assess the expected military advantage in relation to the expected loss of civilian life, and hence whether the use of force had been excessive. The actual circumstances should have been investigated by questioning eyewitnesses. The fact that the surviving tanker driver, the interpreter and the pilots were questioned by the parliamentary commission of inquiry showed that it would also have been reasonable and possible for the Federal Prosecutor General to do so. Further clarification could also have been obtained by having independent military experts assess the surveillance images taken by the aircraft and by questioning the population in the villages surrounding the site of the air strike, including the applicant. The examination of these witnesses could have been carried out through modern technology. 162. Nor had the Federal Prosecutor General sufficiently investigated whether there had been an imminent threat which had rendered the air strike, and hence the use of force against the applicant’s sons, “absolutely necessary” within the meaning of Article 2 § 2 of the Convention. It had not been investigated whether sufficient precautionary measures had been taken in order to avoid civilian casualties, nor whether the assumption of the absence of civilians had indeed been reasonable. Objects seized by the Afghan security forces, such as remnants of arms said to have been carried by the persons attacked, should have been obtained. 163. The reasoning on which the Federal Prosecutor General relied to discontinue the investigation could not justify the gaps in the investigation. The alleged honest belief of the suspects that they were acting lawfully was only relevant as a defence to avoid the charge of a substantive violation of Article 2, but it had to be established whether or not the air strike was, objectively, in accordance with international humanitarian law. Criminal liability for negligent manslaughter, based on the negligence involved in arriving at the assumption that no civilians had been present at the bomb release area, would have been possible and should have been investigated further. (iii) The investigation was not conducted with reasonable expedition 164. The investigation had not been conducted with the necessary and reasonable expedition. The mandatory battle damage assessment had not been carried out until eleven hours after the air strike, in breach of ISAF Rules of Engagement. This had made it impossible to establish the precise circumstances and degree of damage caused by the air strike because the site had been significantly altered in the meantime. Germany could have sent a drone to take footage to document the scene. There had also been delays in questioning the soldiers involved in the air strike in Afghanistan. 165. The formal criminal investigation had been instituted only on 12 March 2010, more than six months after the air strike. This delay significantly undermined the probative value of the testimonies and allowed for collusion. What was decisive was not whether there had been actual foul play on part of the authorities, but whether effective precautions had been taken to prevent collusion from happening. Not requesting Colonel K. and the other soldiers involved in the incident to return to Germany after the incident for immediate questioning had caused extensive and unjustifiable delays. Many investigative measures, including taking suspects’ testimonies, could have been undertaken immediately after the air strike, including through the use of modern technology. 166. The preliminary investigation initiated right after the air strike could not be regarded as a proper criminal investigation. Its sole purpose was to establish the existence of “initial grounds for suspicion” required for the institution of a formal criminal investigation and it did not allow for investigative measures, such as the questioning of witnesses. The length of the preliminary investigation could not justify the brevity of the formal criminal investigation. (iv) Lack of sufficient involvement of the applicant 167. The applicant, as the next of kin of two victims, had not been involved in the investigations to the extent necessary to safeguard his legitimate interests. On 12 April 2010, and thus at a time when the formal investigation was still open, the applicant had filed a criminal complaint concerning the air strike and requested access to the investigation file. The Federal Prosecutor General closed the investigation on 16 April 2010 without having heard the applicant or permitting his lawyer access to the file. Access to the file was granted only on 3 September 2010, and the Federal Prosecutor General’s decision to discontinue the investigation was only made available to the applicant on 13 October 2010. The applicant should have been heard, as it could not be ruled out that he possessed relevant information, notably as to the identity of those present at the bomb site. (b) Judicial review of, and remedies against, the discontinuation decision 168. The applicant asserted that he did not have the possibility of seeking judicial review of the Federal Prosecutor General’s decision to discontinue the investigation, contrary to the requirements of Article 2. 169. The scope and nature of the motion to compel public charges, as well as the high admissibility threshold, rendered it ineffective as a remedy in the present case, which concerned violations of the right to life caused by the armed forces abroad. The mechanism did not enable victims and their relatives to challenge in an effective manner the discontinuation of an investigation in cases involving inaccessible or classified information, such as on military decision-making. It had been impossible for the applicant to prove that there were sufficient grounds for suspicion that the suspects were criminally liable, as the German prosecution authorities had not investigated the matter thoroughly and the applicant could not fill in all the gaps. It was impossible for the applicant to address each piece of evidence in detail in his brief. 170. Nor had the constitutional complaint to the Federal Constitutional Court constituted an effective remedy to have the discontinuation decision reviewed. The Federal Constitutional Court only reviewed specific violations of constitutional law and was primarily concerned with the question whether the decision to discontinue the investigation had been arbitrary. Unlike in Hentschel and Stark (cited above), the Federal Constitutional Court had not assessed the investigation in detail and had failed to examine the substance of the applicant’s claim under Article 2 of the Convention. 171. The flaws in the investigation had had a negative impact on the applicant’s other potential remedies, including on his compensation claim. The parliamentary commission of inquiry did not meet the requirements of an effective remedy. Its findings, which did not fully clarify the circumstances and lawfulness of the air strike, were not binding and did not address the applicant’s procedural rights under Article 2. The Government 172. At the outset, the Government emphasised that the German legal system had responded comprehensively to the air strike that killed the applicant’s sons. The Federal Prosecutor General had conducted an in-depth examination in order to determine whether the military personnel involved were criminally responsible. A parliamentary commission of inquiry had examined the political and factual dimensions of the events for over one and a half years. Court proceedings on compensation were still pending. 173. Turning to the criminal investigation against the military personnel involved in the air strike, the Government submitted that Germany had complied with its duty to investigate. At the time of the air strike, the situation in the Kunduz region amounted to a non-international armed conflict for the purposes of international humanitarian law, to which the common Article 3 of the Geneva Conventions and the rules of customary international humanitarian law applied. The general principle established in Hassan (cited above) to interpret the Convention in the light of international humanitarian law equally applied to non-international armed conflicts. Consequently, international humanitarian law provided the appropriate yardstick for determining what was required from the respondent State. The situation in the present case differed from that in Jaloud (cited above), as the incident at issue had occurred in the course of the conduct of hostilities. The nature and degree of scrutiny required to satisfy the minimum threshold of the investigation’s effectiveness had to be interpreted in a way which took into account the specifics of the situation and the legal framework for the conduct of hostilities. The Government emphasised the special role assigned to commanders in the conduct of investigations under international humanitarian law. (a) Effectiveness of the investigation 174. None of the defects in the investigation which the applicant alleged existed. Even supposing that they did, the investigation had still succeeded in bringing to light all relevant facts about the incident and had enabled the identification of the persons responsible. The essence of the present application was not concerned with the effectiveness of the investigation and did not aim at a more in-depth clarification of the relevant facts. Rather, it was directed against the legal assessment by the Federal Prosecutor General. However, Article 2 of the Convention did not cover the review of individual prosecutorial decisions in relation to their legal correctness (the Government referred to Armani Da Silva, cited above, § 259). (i) Reasonable expedition of the investigation 175. In the Government’s submission, the investigation had been conducted with reasonable expedition. As regards measures taken in Afghanistan, it sufficed to perform the initial post-attack reconnaissance of the bomb release area in the aftermath of the air strike by flyover. As soon as it became known that there may have been civilian casualties, ISAF had established an investigation team which travelled to Kunduz that same day, and performed reconnaissance of the bomb release area and questioned Colonel K. as well as further German soldiers. Its report led to the appointment of the Joint Investigation Board, which had submitted an extensive report on 26 October 2009. Also on the day of the air strike, an investigation team from the German military police had been deployed to Kunduz and prepared a report. The measures for post-attack reconnaissance suggested in that report were later performed by ISAF and Afghan officials. Moreover, on the day of the air strike, the relevant bodies of the German armed forces had initiated inquiries with a view to potentially opening formal disciplinary investigations. 176. The German law-enforcement agencies had been informed of the air strike on the day it occurred and took action immediately. The decision to open a formal criminal investigation was not delayed and had been prepared for effectively in the preceding preliminary investigations. Contrary to the applicant’s submission, the prosecution authorities were authorised under domestic law to examine and to procure a judicial examination of witnesses in these preliminary investigations. 177. The persons responsible for the investigations had taken appropriate steps to reduce the risk of collusion. Both German and ISAF authorities had questioned Colonel K. and further soldiers involved, on 4 September 2009 and several times thereafter. The prosecution authorities had received access to the documents relating to the examination of all important witnesses which had been carried out by the national and international bodies, such as ISAF, soon after the incident. All important evidence, such as the audio recordings of the radio communications with the USAF F-15 aircraft or the thermal images from their infrared cameras, had been immediately secured. The records of the interviews with the suspects were available to the Federal Prosecutor General, who had also interviewed them in person. 178. The order of events concerning the air strike had been established right at the outset of the investigations. There was nothing that could have been covered up by any collusive arrangements. Ordering Colonel K. or other officers potentially responsible for the incident to return to Germany for questioning would, in fact, have impaired the investigation. An effective interview of the suspects and of the witnesses required highly specialist knowledge about the military situation and the circumstances on the ground. The ISAF investigators possessed this specialist knowledge. (ii) Independence 179. The persons responsible for conducting the investigation had been sufficiently independent from those implicated in the air strike. At the outset, it had to be noted that responsibility for investigations of criminal offences potentially committed by German soldiers lay, in all cases and exclusively, with civilian law-enforcement agencies and civilian criminal-law courts, irrespective of whether the potential offences were committed within Germany or abroad. For historical reasons, Germany had deliberately refrained from reintroducing a separate military justice system after 1949. The responsibility of civilian law-enforcement agencies and courts was an element which served to guarantee the independence of the proceedings. 180. In his assessment, the Federal Prosecutor General had relied, inter alia, on the independent investigations performed by ISAF, the Afghan civil government, the ICRC and UNAMA. Article 2 of the Convention did not require that the law-enforcement agencies needed to obtain all evidence and make all necessary determinations by themselves. The duty to investigate could be fulfilled by having the results of parliamentary and international investigations of an incident made available to the public prosecution authorities, and a criminal investigation could be based on the results of these investigations (the Government referred to Giuliani and Gaggio v. Italy [GC], no. 23458/02, §§ 309-10, ECHR 2011; Tagayeva and Others v. Russia, nos. 26562/07 and 6 others, §§ 628-31, 13 April 2017; and Mustafić-Mujić and Others v. the Netherlands (dec.), no. 49037/15, §§ 102 ‑ 06, 30 August 2016 ). This was appropriate, in particular, in view of the multilevel nature of the military deployment in Afghanistan under the delegation of United Nations Security Council powers, which did not entail legal powers for the civilian law-enforcement authorities of the troop-contributing States to pursue criminal investigations of their own on Afghan territory (other than through international legal assistance), and also served to achieve a high level of public scrutiny. 181. The German military police had not acted on behalf of the Federal Prosecutor General and their factual findings served only as one source amongst other independent sources. The military police had been subordinated to the Commander of the German ISAF contingent and had presented its final report to him. It was hierarchically and functionally independent from the Commander of PRT Kunduz. Even assuming that the military police had lacked independence, this could not render the investigations as such ineffective. Their report was only one among many sources relied on by the Federal Prosecutor General, and in view of their limited investigatory powers they could only play a minor role. Moreover, in view of the legal restrictions on Germany’s powers to investigate in Afghanistan, there had been no feasible alternatives to the investigations conducted by the military police. In addition, the security situation at the material time would not have allowed sending civilian prosecutors or police officers to the place of the incident in order to conduct independent investigations. It would be unrealistic and potentially counterproductive to require that investigations into alleged unlawful killings in armed conflicts always had to be investigated by civilian authorities. (iii) Sufficiency of evidence 182. The measures taken by the investigatory teams which formed the basis for the Federal Prosecutor General’s determination had been conducted along the lines described in the 2019 Guidelines on investigating violations of IHL in respect of how to carry out criminal investigations at the height of an armed conflict. 183. There was no requirement to conduct further investigations to establish the exact number of victims. The Federal Prosecutor General had taken all reports prepared for the purpose of other investigations into account, and after evaluating the evidence had made comprehensive determinations in this respect. He had taken sufficient account, for the purposes of evaluating the criminal responsibility of the suspects, of the fact that the damage ascertained after the incident may have been an indication of whether the attacker had been able to anticipate the likelihood of civilian casualties before the attack. The Federal Prosecutor General’s determination that the number of people present at the time of the bomb release did not give rise to doubts that this group of people were Taliban insurgents could not have been called into question by investigating the number of victims further. 184. The Federal Prosecutor General was not required to consult military experts in order to determine whether all “reasonable and feasible precautions” had been taken. This was a question of applying the standards of international humanitarian law and he could base his assessment on the report prepared by the ISAF investigation team, which was composed of military experts from different countries. He had legitimately determined that Colonel K. had not had any further feasible reconnaissance and precautionary measures available to him. It had been confirmed to him on seven separate occasions that the informant had identified the persons present at the location as “insurgents”, and the images provided by the infrared cameras from the USAF F-15 aircraft, on which the persons next to the fuel tankers were visible as dots of a heat source, were consistent with the statements by the informant. It had not been required to simulate the situation in the command centre or to examine further witnesses who had not had any contact with the suspects at the material time, as this would not have been able to provide any insights capable of incriminating the suspects. 185. The applicant’s plea that international humanitarian law had been applied incorrectly concerned the question of the application and interpretation of domestic law, as well as of the assessment of the existing evidence, to which the Court – by reason of the subsidiary nature of its role – could only object in the event of arbitrariness or some other cogent reason. No such cogent reason could be identified in the case at hand. The Federal Prosecutor General had proceeded on the assumption that the lawfulness of the order of the air strike had to be assessed according to the standard of a “reasonable commander”. That assessment was based on the likely consequences as they presented themselves at the time of decision-making, not the effects of the air strike as they had become known in hindsight. This legal view was in line with established doctrines of public international law. 186. It was generally recognised that military action in armed conflict which was in compliance with international humanitarian law did not lead to criminal responsibility on the part of the participating soldiers and that compliance with international humanitarian law rather constituted an exculpatory defence, including in respect of offences under general criminal law. The interpretation that the relevant provisions of international humanitarian law determined what was “absolutely necessary” for the purposes of Article 2 § 2 of the Convention in a situation of armed conflict was in accordance with the Court’s approach in Hassan (cited above). Lastly, the Federal Prosecutor General had provided extensive reasoning why any potential violation of the Rules of Engagement was irrelevant for the determination of criminal responsibility. The preliminary investigation performed to determine whether or not formal disciplinary proceedings should be launched had led to the result that Colonel K. could not even be reproached from a disciplinary perspective. (iv) Involvement of the applicant 187. The applicant had been involved in the investigation to the extent necessary to safeguard his legitimate interests. It had not been necessary to hear him as a witness in order to ensure a reliable investigation of the circumstances. It was established that his two sons had been killed by the air strike. The applicant, whose statements about, inter alia, his presence at the place of the incident had remained vague, had no knowledge relevant for the determination as to whether the suspects ought to have anticipated the presence of civilians at the sand bank, and hence their criminal liability. 188. The applicant had been given sufficient opportunity to make statements in the investigation. Decisions made by the prosecution authorities not to bring charges were not final determinations in the sense of res judicata and prosecution could be reopened subsequently. The applicant had not been deprived of an opportunity to influence the investigation by the Federal Prosecutor General’s discontinuation decision. The Federal Prosecutor General had reviewed the applicant’s evidence and written submissions and rejected the latter as ill-founded. 189. There had been no undue delay in recognising the applicant as an injured party and in granting him access to the investigation file. Following his request of 12 April 2010, the Federal Prosecutor General was obliged to give the suspects the opportunity to make submissions. As the request by the applicant’s legal representative had been made on behalf of a large number of persons who claimed to have been affected, a certain amount of time was required to verify their respective status. In response to the applicant’s letter of 7 July 2010, the Federal Prosecutor General had confirmed, by letter of 16 July 2010, that proof of the applicant’s status as an injured party had been established with respect to his younger son, but that the necessary evidence in respect of a number of other persons, on whose behalf the request had been made, was still missing. After the applicant’s legal representative, by letter of 1 September 2010, had limited the scope of the request for access to the files to the applicant, the Federal Prosecutor General had promptly granted access by letter of 3 September 2010. (b) Remedy to complain about the alleged ineffectiveness of the investigation 190. It was not required that the applicant be provided with an effective judicial remedy for reviewing the Federal Prosecutor General’s decision not to bring charges (the Government referred to Armani Da Silva, cited above, §§ 278-79). Nonetheless, the applicant did, in fact, have at his disposal two effective judicial remedies to challenge the effectiveness of the investigation and had used both: (i) his motion to compel public charges before the Court of Appeal and (ii) his constitutional complaint. 191. The motion to compel public charges did, as such, entail a sufficient scope of review in the event of flagrant or particularly grave violations of the duty to investigate by the prosecution authorities. There was no indication that the Court of Appeal would not have ordered the investigations to be resumed, had the applicant’s motion complied with the admissibility requirements and had the Court of Appeal found the investigations performed thus far to be deficient. The admissibility requirements applied by the Court of Appeal were not excessive, particularly in view of the fact that the applicant had been represented by a lawyer. In accordance with the case-law of the domestic courts, the Court of Appeal had not demanded a summary of the entire content of the evidence compiled in the investigation files, but rather a presentation of the content of those pieces of evidence on which the Federal Prosecutor General had relied. 192. Moreover, the Federal Constitutional Court had reviewed the effectiveness of the investigation via the applicant’s constitutional complaint. It had expressly emphasised that the Federal Prosecutor General’s decision not to bring charges was not only in line with the standards of the Federal Constitutional Court, but also with the requirements established by the case-law of the European Court of Human Rights. It explained why the Federal Prosecutor General had not been required to examine eyewitnesses or to take further evidence, since further investigations concerning the number and identity of the victims of the air strike would not have concerned any aspects relevant for the assessment of the criminal liability of the suspects. The Federal Constitutional Court had furthermore emphasised that the Court of Appeal’s decision on the motion to compel public charges had discussed the reasons given by the Federal Prosecutor General in depth. Third-party intervenersThe Governments of France, Norway and the United Kingdom The Governments of France, Norway and the United Kingdom The Governments of France, Norway and the United Kingdom 193. The intervening Governments asserted that the procedural obligation under Article 2 as applied to situations of armed conflict outside national territory had to be interpreted in a manner consistent with international humanitarian law, which constituted lex specialis. This concerned not only the threshold issue when the duty to investigate arose, but also the content of such a duty. As to the latter, the Government of the United Kingdom emphasised that Article 6 of Additional Protocol II was essentially limited to prosecutorial obligations of independence and did not contain a broader reference to transparency requirements or the involvement of next of kin. With respect to the requirement of independence, the Governments of France and the United Kingdom further elaborated on the special role assigned to commanders in the conduct of investigations under international humanitarian law and submitted that the lex specialis obligations as regards the specific investigative duties of commanders would be disavowed if the procedural obligations under Article 2 were to be interpreted so as to require the exclusion from investigations of military commanders. 194. The intervening Governments submitted that the practical realities of military deployments had to be considered. These could include the housing of those investigating, such as military police, jointly with other members of the military contingent; the investigators having a certain hierarchical or institutional link with the military leadership responsible for the operation; and the impact of limited resources on the promptness and number of investigatory steps, especially in respect of smaller Contracting States and contingents. The Governments of France and the United Kingdom pointed to the legal constraints imposed by the legal framework of the United Nations and the ISAF mission, as well as Afghan law, notably that German prosecution authorities were not allowed to conduct investigations in Afghanistan. 195. The Governments of France and the United Kingdom added that it followed from State practice that States considered that “lawful acts of war”, referred to in Article 15 of the Convention, derogated from Article 2, even in the absence of prior notification of derogation. The Human Rights Centre of the University of Essex, the Open Society Justice Initiative, the Institute of International Studies of the Università Cattolica del Sacro Cuore di Milano and Rights Watch (UK) 196. The Human Rights Centre of the University of Essex asserted that international humanitarian law became applicable on the basis of objective criteria. Where it was applicable and a State chose to invoke international humanitarian law, the concurrent application of international humanitarian law and human rights law might result in a significant modification of the content of human rights law obligations of the State. Where a State chose not to invoke international humanitarian law, the Court should acknowledge that it was applicable, while noting that the State had chosen to be examined exclusively on the basis of human rights law. For the State to invoke international humanitarian law, it was sufficient that it was applicable and that the respondent State invoked it before the Court; a derogation was unlikely to be required in international armed conflict and might not be required in extraterritorial non-international armed conflict. Where the concurrent application of international humanitarian law did not result in a modification of a relevant human rights law rule, a human rights body could draw upon international humanitarian law to confirm a human rights analysis, without a need for the State to invoke international humanitarian law. The Institute of International Studies of the Università Cattolica del Sacro Cuore di Milano emphasised that reliance on international humanitarian law required very careful consideration in order not to contradict Article 15 of the Convention, in particular. 197. The Human Rights Centre of the University of Essex submitted that international humanitarian law required, in respect of the use of force, that everything feasible be done to verify that the objectives to be attacked were military objectives. There was an obligation under international humanitarian law to investigate suspected violations, with the Guidelines on investigating violations of IHL elaborating on the respective standards. The Open Society Justice Initiative, the Institute of International Studies of the Università Cattolica del Sacro Cuore di Milano and Rights Watch (UK) argued that the standards developed in international human rights law regarding the duty to investigate into civilian deaths during armed conflict should not be lowered by reference to international humanitarian law. The Court’s assessmentThe relevant general principles The relevant general principles The relevant general principles 198. In the domestic proceedings the situation in which the air strike that killed the applicant’s two sons occurred was characterised as a non-international armed conflict for the purposes of international humanitarian law. While acknowledging that Germany had not availed itself of its right of derogation under Article 15 of the Convention, the Government submitted that international humanitarian law provided the appropriate yardstick for determining what was required from the respondent State in the circumstances, in line with the Court’s approach in Hassan (cited above). 199. The Court notes that there is no substantive normative conflict in respect of the requirements of an effective investigation between the rules of international humanitarian law applicable to the present case (see paragraphs 82 and 84-85 above) and those under the Convention. The Court can therefore confine itself to examining the facts of the present case based on its case-law under Article 2, without having to address whether in the present case the requirements allowing it to take account of the context and rules of international humanitarian law when interpreting and applying the Convention in the absence of a formal derogation under Article 15 of the Convention are met (see Hassan, cited above, §§ 98 et seq .). 200. Reiterating that the procedural duty under Article 2 must be applied realistically (see Al-Skeini and Others, cited above, § 168), the Court considers that the challenges and constraints for the investigation authorities stemming from the fact that the deaths occurred in active hostilities in an (extraterritorial) armed conflict pertained to the investigation as a whole and continued to influence the feasibility of the investigative measures that could be undertaken throughout the investigation, including by the civilian prosecution authorities in Germany. Accordingly, the standards applied to the investigation conducted by the civilian prosecution authorities in Germany should be guided by those established in respect of investigations into deaths in extraterritorial armed conflict, as set out in Al ‑ Skeini and Others (cited above, §§ 163-67) and restated in Jaloud (cited above, § 186). 201. What form of investigation will achieve the purposes of Article 2 may vary depending on the circumstances. However, whatever mode is employed, the authorities must act of their own motion once the matter has come to their attention (see Al-Skeini and Others, cited above, § 165). 202. 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 v. the Netherlands [GC], no. 52391/99, § 324, ECHR 2007 ‑ II, and Armani Da Silva, cited above, § 233). This means that it must be capable of leading to the establishment of the facts, a determination of whether the force used was justified in the circumstances and of identifying and – if appropriate – punishing those responsible (see Armani Da Silva, § 233; Mustafa Tunç and Fecire Tunç, § 172; and Al ‑ Skeini and Others, § 166, all cited above). 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; Al ‑ Skeini and Others, cited above, § 166; 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. 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 Armani Da Silva, § 233, and Al-Skeini and Others, § 166, both cited above). 203. In particular, the investigation’s conclusions must be based on a thorough, objective and impartial analysis of all relevant elements, failing which the investigation’s ability to establish the circumstances of the case and the identity of those responsible will be undermined to a decisive extent (see Kolevi v. Bulgaria, no. 1108/02, § 201, 5 November 2009, and Armani Da Silva, cited above, § 234). 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 Armani Da Silva, cited above, § 234). 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 Tanrıkulu v. Turkey [GC], no. 23763/94, §§ 101-10, ECHR 1999-IV; Velikova v. Bulgaria, no. 41488/98, § 80, ECHR 2000 ‑ VI; and Mustafa Tunç and Fecire Tunç, cited above, § 176). 204. It is clear that where the death to be investigated under Article 2 occurs in circumstances of generalised violence, armed conflict or insurgency, obstacles may be placed in the way of investigators and, as the United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions has also observed, concrete constraints may compel the use of less effective measures of investigation or may cause an investigation to be delayed (see Al-Skeini and Others, cited above, § 164; see also Bazorkina v. Russia, no. 69481/01, § 121, 27 July 2006 ). Nonetheless, the obligation under Article 2 entails that, even in difficult security conditions, all reasonable steps must be taken to ensure that an effective, independent investigation is conducted into alleged breaches of the right to life (see Al ‑ Skeini and Others, cited above, § 164). 205. The investigation should also be broad enough to permit the investigating authorities to take into consideration not only the actions of the State agents who directly used lethal force but also all the surrounding circumstances, including such matters as the planning and control of the operations in question, where this is necessary in order to determine whether the State complied with its obligation under Article 2 to protect life (ibid., § 163). This will require adequate questioning of the members of the armed forces prima facie involved in the incident ( see Aktaş v. Turkey, no. 24351/94, § 306, 24 April 2003). 206. 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. This means not only a lack of hierarchical or institutional connection but also a practical independence (see Armani Da Silva, § 232, and Al-Skeini and Others, § 167, both cited above). 207. A requirement of promptness and reasonable expedition is implicit in this context. It must, however, be accepted that there may be obstacles or difficulties which prevent progress in an investigation in a particular situation. That said, 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 Armani Da Silva, § 237, and Al-Skeini and Others, § 167, both cited above). 208. There must also be a sufficient element of public scrutiny of the investigation, the degree of which may vary from case to case. The investigation must be accessible to the victim’s family to the extent necessary to safeguard their legitimate interests (see Armani Da Silva, § 235, and Al-Skeini and Others, § 167, both cited above). However, the investigative materials may involve sensitive issues and disclosure cannot be regarded as an automatic requirement under Article 2 (see Giuliani and Gaggio, cited above, § 304; McKerr v. the United Kingdom, no. 28883/95, § 129, ECHR 2001-III; and Armani Da Silva, cited above, § 236). 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, § 113; Ramsahai and Others, § 348; and Armani Da Silva, § 236, all cited above). The outcome of the investigation must be duly brought to the attention of the next of kin (see Damayev v. Russia, no. 36150/04, § 87, 29 May 2012). 209. The adequacy of the investigative measures, the promptness of the investigation, the involvement of the deceased person’s family and the independence of the investigation are interrelated and each of them, taken separately, does not amount to an end in itself. They are criteria which, taken jointly, enable the degree of effectiveness of the investigation to be assessed. It is in relation to this purpose of an effective investigation that any issues must be assessed (see Mustafa Tunç and Fecire Tunç, cited above, § 225). 210. Article 2 does not entail the right to have third parties prosecuted or convicted for a criminal offence (see Mustafić-Mujić and Others, § 117, and Armani Da Silva, § 238, both cited above). To date, the Court has not faulted a prosecutorial decision which flowed from an investigation which was in all other respects Article 2 compliant (see Armani Da Silva, cited above, § 259), or required the competent domestic court to order a prosecution if that court had taken the considered view that application of the appropriate criminal legislation to the known facts would not result in a conviction (see Mustafić-Mujić and Others, cited above, § 123). Application to the present case (a) Adequacy 211. At the outset the Court notes that the criminal investigation established that the applicant’s two sons were killed by the air strike which had been ordered by Colonel K. on 4 September 2009. It was undisputed that the fuel tankers, which the air strike targeted, had been hijacked and remained under the control of insurgents and that there had been civilian casualties. The cause of death of the applicant’s sons, and the person(s) responsible for it, were known from the start of the investigation (compare and contrast Jaloud, cited above). 212. The Federal Prosecutor General determined that Colonel K. had not incurred criminal liability mainly because he had been convinced, at the time of ordering the air strike, that no civilians were present at the sand bank (see paragraphs 33-49 above). Thus he had not acted with the intent to cause excessive civilian casualties which would have been required for him to be liable under the relevant provision of the Code of Crimes against International Law. His liability under general criminal law was ruled out owing to the lawfulness of the air strike under international humanitarian law. In respect of the latter, the Federal Prosecutor General elaborated on the meaning of the terms “insurgents” and “Taliban”, as employed in his decision, and on the status under international humanitarian law of the victims of the air strike. He considered that the armed Taliban fighters who had hijacked the two fuel tankers were members of an organised armed group that was party to the armed conflict and were thus legitimate military targets. They included those persons who had become functionally integrated into and exercised a continuous combat function within the organised armed group. All those air strike victims who were not Taliban fighters were civilians protected under international humanitarian law, including those who were helping the Taliban to free the fuel tankers from the sand bank and those who were trying to obtain fuel for their own benefit (see paragraphs 42 and 44-45 above). 213. For the purposes of answering the relevant questions of law regarding Colonel K.’s criminal liability, the Federal Prosecutor General’s investigation focused, in essence, on clarifying two questions of fact: Colonel K.’s subjective assessment of the situation when he ordered the air strike, which was crucial as regards both his liability under the Code of Crimes against International Law and the lawfulness of the air strike under international humanitarian law; and the number of victims (see paragraph 36 above). 214. The Court notes that the German civilian prosecution authorities, including the Federal Prosecutor General, did not have legal powers to undertake investigative measures in Afghanistan under the ISAF Status of Forces Agreement, but would have been required to resort to international legal assistance to that end. However, the Federal Prosecutor General could rely on a considerable amount of material from different sources concerning the circumstances and the impact of the air strike. The reports from on-site investigations conducted in the aftermath of the air strike, including by the German military police, ISAF, UNAMA and the Afghan civil authorities, were available to him (see paragraph 35 above), as were the documents (such as photographic evidence) and minutes of the meetings and examinations held in the course of those investigations (compare Giuliani and Gaggio, § 310; Tagayeva and Others, §§ 628 ‑ 31; and Mustafić-Mujić and Others, §§ 102 ‑ 06, all cited above). 215. The Federal Prosecutor General questioned the suspects and the other soldiers present at the command centre and found credible their testimonies that they had operated on the assumption that only insurgents and no civilians had been present at the sand bank (see paragraphs 37-39 above). He noted that this account was corroborated by objective circumstances (distance from inhabited settlements, time of night, presence of armed Taliban) and evidence which could not be tampered with, such as audio-recordings of the radio traffic between the command centre and the pilots of the USAF F ‑ 15 aircraft and the thermal images from the aircraft’s infrared cameras, which had been secured immediately. The Federal Prosecutor General established that Colonel K. had had at least seven calls put through to the informant in order to verify that no civilians were present at the scene and that the information given by the informant, who had previously proven to be reliable, corresponded to the video feed from the aircraft. To that end, he examined Captain X., who had been the only person present at the time the informant’s intelligence was transmitted. 216. The Court has no reason to doubt the assessment of the Federal Prosecutor General, and that of the Federal Constitutional Court, that no additional insights as to whether Colonel K. had acted in the expectation of civilian casualties when ordering the air strike could have been gleaned by examining further witnesses (see paragraphs 39 and 60 above). This is true with regard to the questioning of the pilots of the F ‑ 15 aircraft and that of persons affected by the air strike, including the applicant. The Court takes note of the Federal Prosecutor General’s determination that the number of civilian casualties could not serve as circumstantial evidence from which Colonel K.’s subjective expectations could be deduced and that the number of people present at the scene at the time of the air strike did not constitute a reason to question Colonel K.’s assumption that he was dealing exclusively with Taliban fighters (see paragraphs 40 above and 218 below). 217. Nor can the Court discern a need for the involvement of additional military experts or for the simulation of the situation at the command centre. The report of the ISAF investigation team was prepared by military experts from different countries. Relying on that report, the Federal Prosecutor General determined that all precautionary measures which had been feasible in the circumstances had been taken, that Colonel K., at the time of ordering the air strike, had not had reason to suspect the presence of civilians near the fuel tankers and that no advance warning had been required (see paragraphs 46 and 48 above). 218. The Court observes that under normal circumstances the establishment of the precise number and status of the victims of the use of lethal force is an essential element of any proper investigation of incidents involving a high number of casualties. In the present case, having regard to the divergent findings of the various reports, the methods by which they had been established and the available evidence, including the video material, the Federal Prosecutor General concluded that about fifty persons were likely to have been killed or injured by the air strike and that there were significantly more Taliban fighters than civilians among the victims (see paragraph 40 above). The Court is prepared to acknowledge that a more accurate assessment would not appear to have been possible in the circumstances, given that the air strike occurred in an active combat zone at night-time, that the bodies were removed from the scene by the local population within hours of the air strike, and that the use of modern forensic techniques was difficult in view of the social and religious mores of the local population. At any rate, the Court notes that the precise number of civilian victims did not have any bearing on the legal assessment in respect of the criminal liability of Colonel K., which focused on his subjective assessment at the time of ordering the air strike. In these particular circumstances, the Court takes the view that the fact that the authorities did not establish the precise number and status of the victims of the air strike did not amount to a deficiency capable of calling into question the investigation’s compliance with Convention standards. 219. In view of the foregoing, the Court finds that the facts surrounding the air strike which killed the applicant’s two sons, including the decision-making and target verification process leading up to the order of the air strike (see Al-Skeini and Others, cited above, § 163), were established in a thorough and reliable manner in order to determine the legality of the use of lethal force. 220. In so far as the applicant complained of the lack of an effective judicial remedy by which to complain about the alleged ineffectiveness of the investigation, the Court reiterates that the procedural obligation in Article 2 of the Convention does not necessarily require a judicial review of investigative decisions as such (see Armani Da Silva, cited above, §§ 278 ‑ 79, with further references). The Government indicated that in any event the applicant had had at his disposal two effective judicial remedies to challenge the effectiveness of the investigation, and had used both, namely (i) his motion to compel public charges before the Court of Appeal and (ii) his constitutional complaint. 221. The Court observes that the Court of Appeal declared the applicant’s motion to compel public charges inadmissible and that it is in dispute between the parties whether the admissibility requirements were excessive. The application of the admissibility requirements was consistent with the well-established case-law of the domestic courts in this respect (see paragraphs 53, 62 and 99 above). In any event, the Court of Appeal engaged in a thorough review of the evidence referred to by the applicant and of the decision by the Federal Prosecutor General, as also pointed out by the Federal Constitutional Court (see paragraph 61 above). 222. The Federal Constitutional Court reviewed the effectiveness of the investigation, following the applicant’s constitutional complaint. It expressly emphasised that the Federal Prosecutor General’s decision not to bring charges was not only in line with the standards of the Federal Constitutional Court, but also with the requirements established by the case-law of the European Court of Human Rights (see paragraphs 59-60 above). Noting that the Federal Constitutional Court is able to set aside a decision to discontinue a criminal investigation (see paragraph 100 above), the Court concludes that the applicant had at his disposal a remedy to challenge the effectiveness of the investigation (see also Hentschel and Stark, cited above, § 102). (b) Promptness, reasonable expedition and independence 223. In so far as the applicant alleged a delay and a lack of independence in relation to the on-site reconnaissance, the Court considers that this aspect has to be examined against the background of ongoing hostilities in the bomb release area. The members of PRT Kunduz who arrived on the scene at 12.34 p.m. to perform the initial on-site reconnaissance were afforded protection by some one hundred members of the Afghan security forces, but nonetheless came under fire (see paragraph 27 above). This constitutes a significant difference compared with Al-Skeini and Others and Jaloud (both cited above), where the deaths to be investigated did not occur in the active hostilities phase of an extraterritorial armed conflict. Under these circumstances, the Court does not consider that the German military contingent could realistically have been expected to perform on-site reconnaissance more promptly than they did. While the Court accepts, as submitted by the applicant, that it may have been possible to perform additional reconnaissance through a drone prior to the on-site visit, it is not in a position to determine whether this could possibly have led to gleaning information beyond what had already been established through the inspection by the unmanned aircraft at 8 a.m. that morning (see paragraph 24 above). While the Court concurs with the applicant that it would have been preferable, in terms of independence, if the initial on-site assessment had not been done exclusively by members of PRT Kunduz, who were under Colonel K.’s command, it notes that the investigation team from the German military police, whose deployment from Masar-i-Sharif had been ordered that morning, had not yet arrived at the time the on-site reconnaissance was conducted (see paragraphs 26-27 above). Ensuring their participation would thus have resulted in a delay, albeit one of a minor nature, illustrating the interrelatedness of promptness and independence. 224. Reiterating that the procedural duty under Article 2 must be applied realistically (see Al-Skeini and Others, cited above, § 168) and that the German civilian prosecution authorities did not have legal powers to undertake investigative measures in Afghanistan, the Court does not consider that the fact that the German military police were under the overall command of the German ISAF contingent affected their independence to the point of impairing the quality of their investigations (see Jaloud, cited above, §§ 189-90). While the Court found in Al-Skeini and Others that an investigation carried out solely by the commanding officers of the soldiers alleged to be responsible, and limited to taking statements from the soldiers involved, fell short of the requirements of Article 2 (cited above, §§ 153 and 171), it would not suggest that commanders must be excluded from investigations against their subordinates entirely, having regard also to the duty assigned to commanders in this respect under international humanitarian law (see paragraphs 84 and 193 above). 225. By contrast, the Court considers that Colonel K. should not have been involved in investigative steps in Afghanistan, including interviews and visits on 4 and 5 September 2009 (see paragraphs 27-28 above), given that the investigation concerned his own responsibility in connection with ordering the air strike. 226. Yet the Court cannot conclude that this involvement of Colonel K. as such rendered the investigation ineffective (see Mustafa Tunç and Fecire Tunç, cited above, § 225). The responsibility for the criminal investigation rested with the civilian prosecution authorities, notably the Federal Prosecutor General, who could rely on a considerable amount of material from investigations conducted by different actors and who undertook further investigative measures (compare and contrast Al-Skeini and Others, cited above, §§ 153 and 171). More importantly still, the Federal Prosecutor General’s determination that Colonel K. had not incurred criminal liability was primarily based on the finding in respect of Colonel K.’s mens rea at the time of ordering the air strike, which was corroborated by evidence which could not be tampered with, such as audio-recordings of the radio traffic between the command centre and the pilots of the USAF F ‑ 15 aircraft and the thermal images from the latter’s infrared cameras, which had been secured immediately. 227. In these circumstances there was, realistically, no risk that evidence decisive for the determination of Colonel K.’s criminal liability could become contaminated and unreliable. This applies equally in respect of such a risk allegedly stemming from Colonel K.’s involvement in certain investigative steps in Afghanistan as it does in respect of the delay in questioning him and the other soldiers present at the command post by the Federal Prosecutor General. This marks a significant difference between the present case and those of Jaloud (where it remained unclear who had fired the shots which killed the applicant’s son) and Al-Skeini and Others (where relevant circumstances surrounding the deaths of the relatives of the first five applicants remained uncertain). 228. In so far as the applicant alleged a lack of promptness of the investigation by the civilian prosecution authorities in Germany, the Court observes that on the day of the air strike, the chief legal officer of the armed forces informed the Potsdam public prosecutor of the air strike (see paragraph 30 above). The public prosecutor launched a preliminary investigation three days later, which was eventually transferred to the Federal Prosecutor General, who had in parallel initiated a preliminary investigation on 8 September 2009, four days after the air strike. The competent German authorities thus initiated investigations into the air strike, including with a view to establishing any criminal liability of those involved, promptly after the possibility of the deaths of civilians had become known. 229. Having regard to the powers of the prosecution authorities during the preliminary investigation (see paragraph 97 above), the investigative measures taken and the sustained investigative activities (see paragraph 31 above), in the Court’s opinion the fact that the investigation remained at the preliminary investigation stage for about six months until the opening of the formal criminal investigation on 12 March 2010, while regrettable, did not affect the effectiveness of the investigation. (c) Participation of the next of kin and public scrutiny 230. The Court observes that on 12 April 2010 the applicant filed a criminal complaint regarding the death of his two sons and requested access to the investigation file (see paragraph 50 above). Nonetheless, the Federal Prosecutor General closed the investigation four days later, without having heard the applicant or granting his lawyer access to the file. In terms of the involvement of the applicant, as the father of two persons killed by the air strike, in the investigation, this would at first sight appear problematic, bearing in mind his submission that it could not be ruled out that he possessed relevant information, notably as to the identity of those present at the bomb site. 231. However, in the circumstances of the present case, the failure to examine the applicant as a witness prior to discontinuing the investigation did not render the investigation deficient. It was not in doubt that the applicant’s two sons had been killed by the air strike which had been ordered by Colonel K., and the applicant would not have been in a position to provide additional insights relevant to the determination of Colonel K.’s criminal liability, in view of the grounds on which the Federal Prosecutor General relied. The Court also notes that counsel for the applicant did not elaborate further on the additional relevant information the applicant allegedly possessed, mirroring the Government’s submission that the applicant’s statements as to his presence at the bomb site remained vague. The Court of Appeal, for its part, found that the applicant had failed to offer suitable evidence, or any evidence at all, for a number of submissions incriminating the suspects, including that many civilians had been outside on the night of the air strike (see paragraph 53 above). 232. Furthermore, the Federal Prosecutor General reviewed the submissions which the applicant made in his letters of 9 June and 7 July 2010, and rejected them as ill-founded by letters of 16 July and 3 September 2010 (see paragraph 50 above). Had the applicant’s statements contained new evidence or led to the existing evidence being viewed in a different light, this could have led to the reopening of the investigation (see paragraph 98 above). The applicant has thus not been deprived of the opportunity to influence the investigation, even though he was not heard prior to the discontinuation decision. In this respect the Court reiterates that 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 Giuliani and Gaggio, §§ 304 and 312 et seq.; Velcea and Mazăre, § 113; and Ramsahai and Others, § 348, all cited above). 233. Observing that the question of access to the investigation file was adjudicated by the Federal Constitutional Court at an earlier date in a separate decision, which the applicant did not challenge (see paragraph 57 above), the Court is, in any event, unable to discern any undue restrictions or delay as regards the applicant’s access to the investigation file. Initially, the applicant’s representative had requested access to the file on behalf of a large number of individuals, whose victim status required a certain amount of time to verify (see paragraph 50 above). Once the applicant’s representative restricted the request to the applicant, access to the unclassified parts of the file was granted two days later. The investigative material contained sensitive information concerning a military operation in an ongoing armed conflict, and it cannot be regarded as an automatic requirement under Article 2 that a deceased victim’s surviving next of kin be granted access to the ongoing investigation (see Ramsahai and Others, § 347; Giuliani and Gaggio, § 304; and McKerr, § 129, all cited above). 234. In so far as the applicant complained about the delay in the service of the discontinuation decision, the Court considers that it was reasonable that the decision of 16 April 2010 was not published or served on injured parties straightaway, but was first redacted, given that it contained classified military information. The key aspects of the decision were nonetheless published in a press release (see paragraph 34 above). Two days after the redacted version had been finalised on 13 October 2010, it was served on the applicant’s legal representative. Importantly, the one-month time-limit for filing a motion seeking to compel public charges started to run from the date of service of the discontinuation decision (see paragraph 99 above). Thus, the delay in serving the redacted version of the discontinuation decision did not negatively affect the applicant’s ability to challenge that decision (compare and contrast Damayev, cited above, § 87). 235. Lastly, the Court observes that the investigation into the air strike by the parliamentary commission of inquiry (see paragraph 69 above) ensured a high level of public scrutiny (see Tagayeva and Others, §§ 629 ‑ 31, and Mustafić-Mujić and Others, §§ 102-06, both cited above; see also Al-Skeini and Others, cited above, §§ 71, 157 and 176). Conclusion 236. In view of the foregoing, and having regard to the circumstances of the present case, the Court concludes that the investigation into the deaths of the applicant’s two sons which was performed by the German authorities complied with the requirements of an effective investigation under Article 2 of the Convention. There has accordingly been no violation of the procedural limb of Article 2 of the Convention. | The Court held that there had been no violation of the procedural limb of Article 2 (right to life) of the Convention, finding that the investigation by the German authorities into the deaths of the applicant’s two sons had complied with the requirements of an effective investigation under Article 2. It noted, in particular, that the fact that Germany had retained exclusive jurisdiction over its troops deployed within the International Security Assistance Force with respect to serious crimes, which, moreover, it was obliged to investigate under international and domestic law, constituted “special features” which, taken in combination, triggered the existence of a jurisdictional link for the purposes of Article 1 (obligation to respect human rights) of the Convention in relation to the procedural obligation to investigate under Article 2. The Court further noted that the German civilian prosecution authorities had not had legal powers to undertake investigative measures in Afghanistan under the ISAF Status of Forces Agreement, but would have been required to resort to international legal assistance to that end. However, the Federal Prosecutor General had been able to rely on a considerable amount of material concerning the circumstances and the impact of the airstrike. The Federal Constitutional Court had reviewed the effectiveness of the investigation on the applicant’s constitutional complaint. Noting that the Federal Constitutional Court was able to set aside a decision to discontinue a criminal investigation, the Court concluded that the applicant had had at his disposal a remedy enabling him to challenge the effectiveness of the investigation. Lastly, the Court observed that the investigation into the airstrike by the parliamentary commission of inquiry had ensured a high level of public scrutiny of the case. |
471 | Preliminary ruling | II. RELEVANT DOMESTIC AND EUROPEAN LAW AND PRACTICE A. German law and practice 14. Article 543 of the Code of Civil Procedure reads: “ (1) An appeal on points of law may only be lodged if: 1. Leave is granted by the appellate court in its judgment, or 2. The court hearing the appeal on points of law has granted leave upon a complaint against the refusal to grant leave to appeal on points of law. (2) An appeal on points of law shall be admitted if: 1. The legal matter is of fundamental significance, or 2. Further development of the law or the interests in ensuring uniform adjudication require a decision to be issued by the court hearing the appeal on points of law. The court hearing the appeal on points of law shall be bound by the admission of the appeal by the appellate court.” 15. The relevant parts of Article 544 of the Code of Civil Procedure read as follows: “ (1) Any refusal by the appellate court to grant leave to appeal on points of law may be subject to a complaint (complaint against the refusal of leave to appeal). ... (4) The court hearing the appeal on points of law shall rule on the complaint in a corresponding court order. The reasons on which the order is based shall be summarised briefly; that reasoning may be dispensed with where it would not contribute to clarifying the requirements for granting leave to appeal, or where the court finds for the party filing the complaint. The decision regarding the complaint is to be served upon the parties. ...” 16. According to the established case-law of the Federal Court of Justice and the Federal Constitutional Court a legal matter is, amongst other reasons, always of “fundamental significance” if it raises a question that requires a uniform interpretation of EU law, which is relevant for deciding the case, and makes a referral for a preliminary ruling during the appeal proceedings very probable. Therefore, refusal of leave to appeal (on points of law) includes the consideration that a referral to the CJEU is not required in that case (see, for example, Federal Court of Justice, I ZR 130/02, 16 January 2003; Federal Constitutional Court, 2 BvR 557/88, 22 December 1992; 1 BvR 2534/10, 3 March 2014; 1 BvR 1320/14, 8 October 2015). To provide the Federal Constitutional Court with the possibility to review such decisions for arbitrariness, it is necessary that the court establish the reasons for the decision either from the reasoning of the court of last resort or otherwise (see Federal Constitutional Court, 2 BvR 557/88, 22 December 1992; 1 BvR 2534/10, 3 March 2014; 1 BvR 1320/14, 8 October 2015). In case 2 BvR 557/88, the first-instance court had provided detailed reasoning concerning the relevant EU law and why there were no doubts regarding the correct interpretation of those provisions. It had relied on established case-law of the Federal Financial Court. Under these circumstances, the Constitutional Court found it acceptable that the Federal Financial Court had rejected the subsequent complaint against the refusal of leave to appeal without providing reasons. In case 1 BvR 1320/14, however, the Constitutional Court found a violation of the right to a decision by the legally competent court ( Recht auf den gesetzlichen Richter ) because the Federal Court of Justice had rejected a complaint against the refusal of leave to appeal on points of law and had not provided any reasoning. In that case, the court found that an obligation for a referral to the CJEU during the appeal on points of law proceedings was very likely ( lag nahe ) and that the Federal Court of Justice had not explained why it had rejected leave to appeal on points of law nevertheless. Even though the lower court had provided brief reasoning, there were no indications that the Federal Court of Justice had embraced it, particularly since the applicant in the proceedings had made extensive submissions in its complaint against the refusal of leave to appeal on points of law, disputing the reasoning of the lower court. B. European Union law and practice 17. Article 267 of the Treaty on the Functioning of the European Union (“TFEU”) provides as follows: “The Court of Justice shall have jurisdiction to give preliminary rulings concerning: (a) the interpretation of the Treaties; (b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union ...; Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon. Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court.” 18. Interpreting this provision, the CJEU held in the case of S.r.l. CILFIT and Lanificio di Gavardo S.p.a. v. Ministry of Health (C ‑ 283/81, judgment of 6 October 1982, ECLI:EU:C:1982:335, § 21) that: “... a court or tribunal against whose decisions there is no judicial remedy under national law is required, where a question of Community law is raised before it, to comply with its obligation to bring the matter before the Court [of Justice], unless it has established that the question raised is irrelevant or that the Community provision in question has already been interpreted by the Court or that the correct application of Community law is so obvious as to leave no scope for any reasonable doubt. The existence of such a possibility must be assessed in the light of the specific characteristics of Community law, the particular difficulties to which its interpretation gives rise and the risk of divergences in judicial decisions within the Community.” 19. In the case of Kenny Roland Lyckeskog (C-99/00, 4 June 2002, ECLI:EU:C:2002:329) the CJEU decided, among other things, the question of whether a national court which in practice was the court of last resort in a case, because a declaration of admissibility was needed in order for the case to be reviewed by the country ’ s supreme court, was a court within the meaning of the third paragraph of Article 234 EC (current Article 267 of the TFEU). The court held: “16. Decisions of a national appellate court which can be challenged by the parties before a supreme court are not decisions of a ‘ court or tribunal of a Member State against whose decisions there is no judicial remedy under national law ’ within the meaning of Article [267]. The fact that examination of the merits of such appeals is subject to a prior declaration of admissibility by the supreme court does not have the effect of depriving the parties of a judicial remedy. 17. That is so under the Swedish system. The parties always have the right to appeal to the Högsta domstol against the judgment of a hovrätt, which cannot therefore be classified as a court delivering a decision against which there is no judicial remedy. Under Paragraph 10 of Chapter 54 of the Rättegångsbalk, the Högsta domstol may issue a declaration of admissibility if it is important for guidance as to the application of the law that the appeal be examined by that court. Thus, uncertainty as to the interpretation of the law applicable, including Community law, may give rise to review, at last instance, by the supreme court. 18. If a question arises as to the interpretation or validity of a rule of Community law, the supreme court will be under an obligation, pursuant to the third paragraph of Article [267], to refer a question to the Court of Justice for a preliminary ruling either at the stage of the examination of admissibility or at a later stage.” 20. This judgment was referred to in a later judgment of the CJEU ( Cartesio Oktató és Szolgáltató bt, C-210/06, 16 December 2008, ECLI :EU:C:2008:723 ), in which it held: “76. The Court has already held that decisions of a national appellate court which can be challenged by the parties before a supreme court are not decisions of ‘ a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law ’ within the meaning of the third paragraph of Article 267. The fact that the examination of the merits of such challenges is conditional upon a preliminary declaration of admissibility by the supreme court does not have the effect of depriving the parties of a judicial remedy ( Lyckeskog, paragraph 16). 77. That is true a fortiori in the case of a procedural system such as that under which the case before the referring court must be decided, since that system makes no provision for a preliminary declaration by the supreme court that the appeal is admissible and, instead, merely imposes restrictions with regard, in particular, to the nature of the pleas which may be raised before such a court, which must allege a breach of law.” 21. As regards the initiation of preliminary ruling proceedings, the CJEU stated in the case of György Katz v. István Roland Sós (C-404/07, 9 October 2008, ECLI:EU:C:2008:553): “37. ... It is for the national court, not the parties to the main proceedings, to bring a matter before the Court of Justice. The right to determine the questions to be put to the Court thus devolves on the national court alone and the parties may not change their tenor ...” 22. In its judgment of 9 November 2010 in the case of VB Pénzügyi Lízing Zrt. v. Ference Schneider (C-137/08, ECLI :EU:C:2010:659 ), the CJEU stated: “28. ... the system established by Article 267 TFEU with a view to ensuring that European Union law is interpreted uniformly throughout the Member States instituted direct cooperation between the Court of Justice and the national courts by means of a procedure which is completely independent of any initiative by the parties ...” 23. On 25 November 2016 the CJEU published its (updated) Recommendations to national courts and tribunals in relation to the initiation of preliminary ruling proceedings (2016/C 439/01). The relevant part reads as follows: “3. The jurisdiction of the Court to give a preliminary ruling on the interpretation or validity of EU law is exercised exclusively on the initiative of the national courts and tribunals, whether or not the parties to the main proceedings have expressed the wish that a question be referred to the Court. In so far as it is called upon to assume responsibility for the subsequent judicial decision, it is for the national court or tribunal before which a dispute has been brought – and for that court or tribunal alone – to determine, in the light of the particular circumstances of each case, both the need for a request for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court.” THE LAW ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 24. The applicant complained that the domestic courts had refused to refer questions to the CJEU for a preliminary ruling and had failed to provide adequate reasoning for this refusal, in breach of his right to a fair trial. He relied on Article 6 § 1 of the Convention, the relevant part of which reads as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” 25. The Government contested that argument. A. Admissibility 26. The Government submitted that if the Court examined each question suggested for referral separately, the application would be partially inadmissible for non-exhaustion of domestic remedies. They argued that in his complaint concerning a violation of his right to be heard and his constitutional complaint, the applicant had neither explicitly complained about the lack of reasoning for refusing the second suggested question nor pointed to the fact that this question had only been suggested for the first time after the judgment of the Court of Appeal. In contrast, during the domestic proceedings the applicant had made no distinction between the two questions and had complained about the refusal to refer them to the CJEU and the lack of reasoning in general. 27. The applicant argued that he had exhausted the available domestic remedies by lodging a complaint concerning a violation of his right to be heard and a constitutional complaint. In both complaints he had included both questions and complained that neither the Court of Appeal nor the Federal Court of Justice had provided adequate reasoning for the refusal to refer them to the CJEU for a preliminary ruling. 28. The Court observes that the second question suggested by the applicant is only a variation of the first question, that both questions concern the same issue and that the applicant did not distinguish between them in the domestic proceedings. In addition, the Court notes that, while the parties in domestic proceedings may suggest questions for referral, the final wording of the question or questions is done by the court referring questions to the CJEU (see paragraphs 22 and 23 above). It concludes that the issues in the present case are the refusal to refer a case to the CJEU and the adequacy of the courts ’ reasoning, and not whether a particular question suggested by the applicant was referred to the CJEU for a preliminary ruling. Differentiating between the two questions would therefore be artificial. Consequently, the condition under which the Government pleaded partial non-exhaustion of the application is not fulfilled. 29. In sum, the Court notes that the application is neither inadmissible for non-exhaustion of domestic remedies nor 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 and must therefore be declared admissible. B. Merits 1. The parties ’ submissions 30. The applicant argued that the dispute before the domestic courts had raised an issue under EU law, which had to date not been decided by the CJEU. By arbitrarily refusing to refer questions to the CJEU for a preliminary ruling, the domestic courts had violated Article 6 of the Convention. In addition, the domestic courts had not provided adequate reasoning for the refusal. The Federal Court of Justice had been the court against whose decisions there had been no judicial remedy under national law within the meaning of Article 267 of the TFEU. It had therefore been obliged, pursuant to the Court ’ s case-law ( Dhahbi v. Italy, no. 17120/09, 8 April 2014, and Schipani and Others v. Italy, no. 38369/09, 21 July 2015), to provide reasons for the refusal, based on the CJEU ’ s judgment in the CILFIT case (see paragraph 18 above). However, the Federal Court of Justice had provided no reasons whatsoever and had only repeated the wording of Article 543 of the Code of Civil Procedure. It also had not made any reference to the reasoning of the Court of Appeal. The Court of Appeal, which had not been the court of last resort, had at least considered the question of EU law, but had neither explicitly refused a referral to the CJEU nor referred to the CILFIT criteria established in the CJEU case-law. In particular, the Court of Appeal had not explained why the correct application of Community law had been so obvious as to leave no scope for any reasonable doubt. 31. The Government argued that the refusal to refer the case to the CJEU had not been arbitrary, as the correct application of EU law had been so obvious as to leave no scope for any reasonable doubt about it. The Federal Court of Justice and the Court of Appeal had made it sufficiently evident in their decisions that there was no obligation to refer the case to CJEU for that reason. The Court of Appeal, while not a court of last resort and therefore not obliged to refer questions to the CJEU for a preliminary ruling, had discussed EU law and the CJEU ’ s case law in detail and had concluded that the applicant ’ s legal opinion was not reflected in the CJEU ’ s case-law or academic writing. It therefore followed from the Court of Appeal ’ s decision that a referral had not been required. In addition, the Court of Appeal had also had to examine the question of whether a referral was necessary when deciding whether leave to appeal on points of law had to be granted, since if a question had arisen concerning EU law that had been of relevance for the case, the matter would have had “fundamental significance” within the meaning of Article 543 of the Code of Civil Procedure and therefore required leave to appeal on points of law to be granted. Consequently, the decision of the Court of Appeal to refuse leave to appeal on points of law had also stated that a referral to the CJEU was not necessary. For the same reason, the reasoning of the Federal Court of Justice had been sufficient, because holding that the case had no “fundamental significance” implicitly meant that no referral to the CJEU was necessary. In addition, the Federal Court of Justice had endorsed the reasoning of the Court of Appeal by refusing the applicant ’ s complaint against the refusal of leave to appeal on points of law and dispensing with further reasoning pursuant to Article 544 § 4 of the Code of Civil Procedure. 32. The third party submitted that the Convention did not oblige the national courts to provide detailed answers to any and every argument raised before it. In particular, when decisions only concerned the question of whether leave to appeal should be granted, there was no requirement to give specific reasons. 2. The Court ’ s assessment 33. The Court reiterates that it is for the national courts to interpret and apply domestic law, if applicable in conformity with EU law, and to decide whether it is necessary to seek a preliminary ruling from the CJEU to enable them to give judgment. It reiterates that the Convention does not guarantee, as such, the right to have a case referred by a domestic court to the CJEU for a preliminary ruling. The Court has previously observed that this matter is, however, not unconnected to Article 6 § 1 of the Convention since a domestic court ’ s refusal to grant a referral may, in certain circumstances, infringe the fairness of proceedings where the refusal proves to have been arbitrary. Such a refusal may be deemed arbitrary in cases where the applicable rules allow no exception to the granting of a referral or where the refusal is based on reasons other than those provided for by the rules, or where the refusal was not duly reasoned (see Ullens de Schooten and Rezabek v. Belgium, nos. 3989/07 and 38353/07, 20 September 2011, §§ 54 ‑ 59). The obligation for domestic courts to provide reasons for their judgments and decisions serves to enable the parties to understand the judicial decision that has been given; which is a vital safeguard against arbitrariness. In addition, it serves the purpose of demonstrating to the parties that they have been heard, thereby contributing to a more willing acceptance of the decision on their part (see Taxquet v. Belgium [GC], no. 926/05, §§ 90 and 91, ECHR 2010, with further references). 34. However, the duty to give reasons cannot be understood to mean that a detailed answer to every argument is required, and the extent of it varies according to the nature of the decision and must be determined in the light of the circumstances of the case (ibid.). It is 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 of whether or not a court has failed to fulfil the obligation to provide reasons − deriving from Article 6 of the Convention − can only be determined in the light of the circumstances of the case (see Borovská and Forrai v. Slovakia, no. 48554/10, § 57, 25 November 2014; García Ruiz v. Spain [GC], no. 30544/96, § 26, ECHR 1999 ‑ I; Kok v. the Netherlands ( dec. ), no. 43149/98, 4 July 2000; and Ruiz Torija v. Spain, no. 18390/91, § 29, 9 December 1994). 35. It is acceptable under Article 6 § 1 of the Convention for the national superior courts to dismiss a complaint by mere reference to the relevant legal provisions governing such complaints if the matter raises no fundamentally important legal issue (see Vogl v. Germany ( dec. ), no. 65863/01, 5 December 2002; John v. Germany ( dec. ) no. 15073/03, 13 February 2007), particularly in cases concerning applications for leave to appeal (see Sawoniuk v. The United Kingdom ( dec. ), no. 63716/00, 29 May 2001; Kukkonen v. Finland (no. 2), no. 47628/06, § 24, 13 January 2009; and Bufferne v. France ( dec. ), no. 54367/00, ECHR 2002 ‑ III (extracts)). In dismissing an appeal, an appellate court may, in principle, simply endorse the reasons for the lower court ’ s decision (see García Ruiz v. Spain [GC], no. 30544/96, § 26, ECHR 1999 ‑ I) or the reasons for a decision may be also implied from the circumstances in some cases (see Sawoniuk, cited above). 36. These principles are reflected in the Court ’ s case-law, which has been summarised recently in the case of Baydar v. the Netherlands ( no. 55385/14, §§ 42-44, 24 April 2018), where the issue of due reasoning by the domestic courts when refusing a request for a referral to the CJEU was considered: “42. For example, the Court has held that where a request to obtain a preliminary ruling was insufficiently pleaded or where such a request was only formulated in broad or general terms, it is acceptable under Article 6 of the Convention for national superior courts to dismiss the complaint by mere reference to the relevant legal provisions governing such complaints if the matter raises no fundamentally important legal issue (see John v. Germany ( dec. ) no. 15073/03, 13 February 2007) or for lack of prospects of success without dealing explicitly with the request (see Wallishauser v. Austria (No. 2), no. 14497/06, § 85, 20 June 2013; see also Rutar Marketing D.O.O. v. Slovenia ( dec. ), no. 62020/11, § 22, 15 April 2014 and Moosbrugger v. Austria, no.44861/98, 25 January 2000). 43. Furthermore, in the case of Stichting Mothers of Srebrenica and others v. the Netherlands (no. 65542/12, § 173, ECHR 2013) the Court found that the summary reasoning used by the Supreme Court to refuse a request for a preliminary ruling was sufficient, pointing out that it followed already from a conclusion reached in another part of the Supreme Court ’ s judgment that a request to the CJEU for a preliminary ruling was redundant. In Astikos Kai Paratheristikos Oikodomikos Synetairismos Axiomatikon and Karagiorgos v. Greece (( dec. ), nos. 29382/16 and 489/17, § 47, 9 May 2017) the Court observed that the preliminary ruling requested by the applicant in that case would not have changed the conclusion reached by the Council of State of Greece since his appeal had been declared inadmissible due to the non-compliance with statutory requirements for the admissibility of appeal. 44. In other cases, not concerning a context of domestic accelerated proceedings, the Court has held that national courts against whose decisions there is no remedy under national law are obliged to give reasons for their refusal in the light of the exceptions provided for in the case-law of the CJEU ( Ullens de Schooten and Rezabek, cited above, § 62). In Dhahbi v. Italy (no. 17120/09, § 31, 8 April 2014; see also Schipani and others v. Italy, no. 38369/09, § 42, 21 July 2015), the Court formulated the following principles regarding the domestic courts ’ duty under Article 6 of the Convention when a request is made for a referral to the CJEU for a preliminary ruling, and where the request was accompanied by a due argumentation: ‘ ... Article 6 § 1 requires domestic courts to provide reasons, in the light of the applicable law, for any decision refusing to refer a question for a preliminary ruling; – when the Court hears a complaint alleging a violation of Article 6 § 1 on this basis, its task consists in ensuring that the impugned refusal was duly accompanied by such reasoning; – whilst this verification has to be carried out in a thorough manner, it is not for the Court to examine any errors that might have been committed by the domestic courts in interpreting or applying the relevant law; and – in the specific context of the third paragraph of Article 234 of the Treaty establishing the European Community (current Article 267 of the TFEU), this means that national courts against whose decisions there is no judicial remedy under national law, and which refuse to request a preliminary ruling from the CJEU on a question raised before them concerning the interpretation of EU law, are required to give reasons for such refusal in the light of the exceptions provided for by the case-law of the CJEU. They must therefore indicate the reasons why they have found that the question is irrelevant, that the European Union law provision in question has already been interpreted by the CJEU, or that the correct application of EU law is so obvious as to leave no scope for any reasonable doubt. ’ ” 37. Turning to the circumstances of the present case, the Court observes that the Federal Court of Justice was the court of last resort within the meaning of the third paragraph of Article 267 of the TFEU, even though it “only” decided on the applicant ’ s complaint against the refusal of leave to appeal on points of law (see paragraphs 19 and 20 above). It also observes that the Federal Court of Justice only briefly indicated the reasons for refusing leave to appeal on points of law and dispensed with any further reasoning pursuant to Article 544 § 4 of the Code of Civil Procedure, to which it referred in its decision. 38. However, the Court also observes that the applicant requested a referral to the CJEU not only before the Federal Court of Justice but also earlier before the Court of Appeal. The Court of Appeal, while not the court of last resort within the meaning of Article 267 of the TFEU, examined EU law in detail and, in the reasoning of its judgment, referred extensively to the CJEU ’ s case-law. It also stated in the judgment that “[t]here [was] no need to clarify the legal question raised, since there [were] no doubts concerning the scope and interpretation of those legal provisions.” Moreover, during the oral hearing the issue of EU law was discussed between the parties and the court explained that, in its view, the case-law of the CJEU was clear and that, in contrast to what had been suggested by the applicant, EU law was not applicable to the case. In sum, the Court concludes that the Court of Appeal explained why there was no reasonable doubt concerning the correct application of German and EU law and how the question raised had had to be resolved. 39. The Court further observes that the Court of Appeal had to decide, in accordance with Article 543 of the Code of Civil Procedure, whether the case was of “fundamental significance” and whether leave to appeal on points of law should therefore be granted. It notes, as has been pointed out by the Government, that, under the established case-law of the Federal Court of Justice and the Federal Constitutional Court, a legal matter is always of “fundamental significance” if it raises a question that requires a uniform interpretation of EU law, which is relevant for deciding the case, and makes a referral for a preliminary ruling during the appeal proceedings very probable (see paragraph 16 above). It also notes that, based on this case-law, a refusal of leave to appeal on points of law includes the consideration that a referral to the CJEU is not required in the case in question. The Court concludes that the Court of Appeal therefore considered the applicant ’ s referral request and denied it by refusing leave to appeal on points of law. 40. For the same reason, the Court considers that the Federal Court of Justice, which was obliged to decide referrals pursuant to Article 267 of the TFEU, refused to acknowledge the need for a referral to the CJEU by confirming that it did not concern a legal matter of “fundamental significance”. 41. Moreover, the Court points out that it has previously accepted that the reasons for a decision by a superior court may be implied from the circumstances in some cases or from endorsement of the reasoning of the lower court (see paragraph 35 above). In that regard, it observes that the Federal Constitutional Court also only requires that the reasons for a refusal be established either from the reasoning of the court of last resort or otherwise, such as the reasoning of a lower court (see paragraph 16 above). Having regard to the fact that the Court of Appeal provided detailed reasoning concerning the refusal of leave to appeal on points of law, after discussing the issue of EU law with the parties in the oral hearing, the Court considers that the circumstances of the present case enabled the applicant to understand the decision of the Federal Court of Justice. 42. Taking into account the purpose of the duty of the domestic courts to provide reasons under Article 6 of the Convention (see paragraph 33 above) and examining the proceedings as a whole, the Court notes that the domestic courts provided the applicant with a detailed explanation why the requested referral to the CJEU had been refused. Notwithstanding the fact that the Federal Court of Justice was the court of last resort within the meaning of Article 267 of the TFEU, the Court considers that in the specific circumstances of the present case it was acceptable that the Federal Court of Justice dispensed with providing more comprehensive reasoning and merely referred to the relevant legal provisions when deciding the applicant ’ s complaint against the refusal of leave to appeal on points of law. 43. The foregoing considerations are sufficient to enable the Court to conclude that the refusal of the referral, which does not appear arbitrary, was sufficiently reasoned. There has accordingly been no violation of Article 6 § 1 of the Convention. | The Court held that there had been no violation of Article 6 § 1 (right to a fair trial) of the Convention, finding in particular that the German courts’ refusal of the referral, which had not appeared arbitrary, had had sufficient reasons. |
974 | Internet | RELEVANT LEGAL FRAMEWORK AND PRACTICE DOMESTIC LAW AND PRACTICEProtection of the fundamental rights at stake and the right to be forgotten Protection of the fundamental rights at stake and the right to be forgotten Protection of the fundamental rights at stake and the right to be forgotten 30. The Belgian Constitution guarantees freedom to manifest one’s opinions on all matters (Article 19) and freedom of the press (Article 25), as well as the right to respect for private and family life (Article 22). 31. Prior to the events giving rise to the present case, the right to be forgotten had been recognised by the lower courts as an integral part of the right to respect for private life (see, for instance, Brussels Court of Appeal (ref.), 21 December 1995, J.T., 1996, p. 47; Brussels Court of First Instance, 30 June 1997, J.T. 1997, p. 710; Namur Court of First Instance, 17 November 1997, J.T., 1998, p. 187; Namur Court of First Instance, 27 September 1999, Auteurs & Média, 2000, p. 471; and Brussels Court of First Instance, 20 September 2001, Auteurs & Média, 2002, p. 77). This right was also recognised subsequently by the Court of Cassation (Cass., 29 April 2016, C.15.0052.F, in the applicant’s case, and Cass., 8 November 2018, C.16.0457.F). Civil Code 32. Under Article 1382 of the Civil Code, “any act committed by a person that causes damage to another shall render the person through whose fault the damage was caused liable to make reparation for it”. 33. This provision may be used as the basis for civil actions for alleged abuse of press freedom (Cass., 4 December 1952, Pas. 1953, I, p. 215; see De Haes and Gijsels v. Belgium, 24 February 1997, § 26, Reports of Judgments and Decisions 1997 ‑ I). Act of 8 December 1992 on the protection of private life with regard to the processing of personal data 34. Under section 8(1) of the Act of 8 December 1992 on the protection of private life with regard to the processing of personal data (“the Protection of Private Life Act”), which was in force at the material time, the processing of personal data concerning cases coming before the ordinary and administrative courts, suspected offences, prosecutions or convictions in connection with offences, and administrative sanctions or preventive measures, was prohibited. Nevertheless, section 3(3)(a) of the Act provided that section 8 did not apply to the processing of personal data solely for journalistic purposes where it concerned data that had been manifestly made public by the person concerned, or to data that were closely connected to the public profile of the person concerned or the public nature of the events in which he or she had been involved. 35. Under section 14 of the same Act, the president of the Court of First Instance, as the judge responsible for hearing urgent applications, had jurisdiction to examine any request to rectify, remove or prohibit the use of any personal data that were inaccurate or which, regard being had to the purpose of the processing, were incomplete or irrelevant; the recording, communication or retention of which was prohibited; the processing of which the person concerned had objected to; or which had been retained beyond the authorised period. 36. Hearing an application based on this Act, the president of the Brussels Court of First Instance refused to order the anonymisation of an article published in the online press archives of several media companies (Brussels Civ. (pres.), 9 October 2012, Auteurs & Média, 2013, p. 267). The applicant had based his action on the right to object and the right to rectification granted to the persons concerned under the Act. The president found that the online publication of journalistic archives could be said to meet the definition of processing solely for journalistic purposes, which was covered by a derogation under the Act relating in particular to the two rights in issue and which, in the president’s view, was not limited in time, as journalism was not merely a matter of “informing the public on current affairs”. Accordingly, the president refused the application. That order was upheld on appeal (Brussels, 21 March 2013, no. 2012/AR/2791, unreported). 37. The Act of 8 December 1992 was repealed by the Act of 30 July 2018 on the protection of individuals with regard to the processing of personal data. Section 24(2) exempts the processing of personal data carried out solely for journalistic purposes from the application of a number of Articles of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 (see paragraph 48 below). Article 17 of the Regulation is not among the provisions concerned. Rehabilitation of convicted persons 38. Articles 621 to 634 of the Code of Criminal Procedure make provision for persons who have been convicted to apply for rehabilitation, subject to a number of conditions. Rehabilitation orders are made by the Court of Appeal. 39. The rehabilitation of a convicted person does not mean that the facts established by the courts and forming the basis for the person’s conviction are ignored as though they had never existed. The conviction still stands and the rehabilitation order does not prevent third parties – including the media – from referring to it (Cass., 23 April 1997, Pas. 1997, I, no. 199). COUNCIL OF EUROPE INSTRUMENTS 40. The relevant provisions of the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data, Recommendation No. R (2000) 13 of the Committee of Ministers to member states on a European policy on access to archives, Recommendation Rec (2003) 13 of the Committee of Ministers to member states on the provision of information through the media in relation to criminal proceedings, and Recommendation CM/Rec(2012)3 of the Committee of Ministers to member States on the protection of human rights with regard to search engines are set out in the judgment in M.L. and W.W. v. Germany (nos. 60798/10 and 65599/10, §§ 52-56, 28 June 2018). EUROPEAN UNION LAW 41. 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 was aimed at protecting the fundamental rights and freedoms of individuals, and in particular the right to privacy, with regard to the processing of personal data, while removing obstacles to the free movement of such data. Under Article 9 of the Directive, the member States could provide for exemptions or derogations from the provisions of a number of Chapters for the processing of personal data carried out solely for journalistic purposes or the purpose of artistic or literary expression “only if they [were] necessary to reconcile the right to privacy with the rules governing freedom of expression”. 42. In its judgment of 13 May 2014 (Case C-131/12, EU:C:2014:317; Google Spain SL and Google Inc. – hereafter “ Google Spain ”), the Court of Justice of the European Union (“the CJEU”) was called upon to define the extent of the rights and obligations arising out of Directive 95/46/EC with regard to Internet search engines. The case originated in a complaint lodged by a Spanish national with the Spanish Data Protection Agency against a Spanish daily newspaper and Google. The applicant had complained that, when an Internet user entered his name in Google’s search engine, the list of results displayed links to two pages of the newspaper mentioning his name in connection with an auction following attachment proceedings. He had requested the newspaper either to remove or alter those pages so that the personal data relating to him no longer appeared or to use certain tools made available by search engines in order to protect his data. He had also requested Google to remove or conceal the personal data relating to him so that they ceased to be included in the search results and in the links to the newspaper. While the Spanish agency had rejected the complaint against the newspaper, it had upheld the complaint against Google, which brought an action before the Spanish courts. It was in the context of this judicial dispute that the case was referred to the CJEU for a preliminary ruling. 43. The CJEU held that the operations carried out by operators of search engines should be classified as “data processing”, of which they were the “controllers” (Article 2 (b) and (d)), regardless of the fact that these data had already been published on the Internet and had not been altered by the search engine. It stated that, in so far as the activity of a search engine could be distinguished from and was additional to that carried out by publishers of websites and also affected the fundamental rights of the person concerned, the operator of the search engine had to ensure in particular that the guarantees laid down by the directive could have full effect. Moreover, given the ease with which information published on a website could be replicated on other sites, effective and complete protection of data users, and particularly of their right to privacy, could not be achieved if they had to obtain first or in parallel the erasure of the information relating to them from the publishers of websites. The CJEU concluded that the operator of a search engine was obliged to remove links to web pages that were published by third parties and contained information relating to a person from the list of results displayed following a search made on the basis of that person’s name, including in cases where the name or information had not been erased beforehand or simultaneously from those web pages and even, as applicable, when its publication on those pages was in itself lawful. 44. The CJEU added that even initially lawful processing of accurate data could, in the course of time, become incompatible with the directive where those data were no longer necessary in the light of the purposes for which they had been collected or processed. That was so in particular where they appeared to be inadequate, irrelevant or no longer relevant, or excessive in relation to those purposes and in the light of the time that had elapsed. The CJEU concluded that if, under Articles 7 and 8 of the European Union’s Charter of Fundamental Rights guaranteeing, respectively, the right to respect for private life and the right to the protection of personal data, the persons concerned had a right to ensure that the information in question relating to them personally should no longer be linked to their name by a list of results, and they were thus entitled to request that the information in question no longer be made available to the general public on account of its inclusion in such a list of results, those rights overrode, as a rule, not only the economic interest of the operator of the search engine but also the interest of the general public in having access to that information through a search relating to the names of the persons concerned. However, according to the CJEU, that would not be the case if it appeared, for particular reasons such as the role played by the persons concerned in public life, that the interference with their fundamental rights was justified by the preponderant interest of the general public in having, on account of its inclusion in the list of results, access to the information in question. 45. Regarding the difference in treatment between the publisher of a web page and the operator of a search engine, the CJEU found as follows: “85. Furthermore, the processing by the publisher of a web page consisting in the publication of information relating to an individual may, in some circumstances, be carried out ‘solely for journalistic purposes’ and thus benefit, by virtue of Article 9 of Directive 95/46, from derogations from the requirements laid down by the directive, whereas that does not appear to be so in the case of the processing carried out by the operator of a search engine. It cannot therefore be ruled out that in certain circumstances the data subject is capable of exercising the rights referred to in Article 12(b) and subparagraph (a) of the first paragraph of Article 14 of Directive 95/46 against that operator but not against the publisher of the web page. 86. Finally, it must be stated that not only does the ground, under Article 7 of Directive 95/46, justifying the publication of a piece of personal data on a website not necessarily coincide with that which is applicable to the activity of search engines, but also, even where that is the case, the outcome of the weighing of the interests at issue to be carried out under Article 7(f) and subparagraph (a) of the first paragraph of Article 14 of the directive may differ according to whether the processing carried out by the operator of a search engine or that carried out by the publisher of the web page is at issue, given that, first, the legitimate interests justifying the processing may be different and, second, the consequences of the processing for the data subject, and in particular for his private life, are not necessarily the same. 87. Indeed, since the inclusion in the list of results, displayed following a search made on the basis of a person’s name, of a web page and of the information contained on it relating to that person makes access to that information appreciably easier for any internet user making a search in respect of the person concerned and may play a decisive role in the dissemination of that information, it is liable to constitute a more significant interference with the data subject’s fundamental right to privacy than the publication on the web page.” 46. In the Guidelines on the implementation of the Court of Justice of the European Union judgment in the case of “ Google Spain SL and Google Inc. v Agencia Española de Protección de Datos (AEPD) and Mario Costeja González ” (C-131/12), adopted on 26 November 2014, the “Article 29” Data Protection Working Party stated as follows: “18. Search engines included in web pages do not produce the same effects as ‘external’ search engines. On the one hand, they only recover the information contained on specific web pages. On the other, and even if a user looks for the same person in a number of web pages, internal search engines will not establish a complete profile of the affected individual and the results will not have a serious impact on him, Therefore, as a rule the right to de-listing should not apply to search engines with a restricted field of action, particularly in the case of search tools of websites of newspapers. ... 21. From the material point of view, and as it’s been already mentioned, the ruling expressly states that the right only affects the results obtained on searches made by the name of the individual and never suggests that the complete deletion of the page from the indexes of the search engine is needed. The page should still be accessible using any other terms of search. It is worth mentioning that the ruling uses the term ‘name’, without further specification ...” 47. The second part of the guidelines concerns common criteria which the data protection authorities are invited to apply in handling complaints following refusals of delisting by search engines. The relevant parts of the eighth and thirteenth criteria read as follows: “8. Is the data processing causing prejudice to the data subject? Does the data have a disproportionately negative privacy impact on the data subject? ... The data might have a disproportionately negative impact on the data subject where a search result relates to a trivial or foolish misdemeanour which is no longer – or may never have been – the subject of public debate and where there is no wider public interest in the availability of the information. ... 13. Does the data relate to a criminal offence? EU Member States may have different approaches as to the public availability of information about offenders and their offences. Specific legal provisions may exist which have an impact on the availability of such information over time. [Data Protection Authorities] will handle such cases in accordance with the relevant national principles and approaches. As a rule, [Data Protection Authorities] are more likely to consider the de-listing of search results relating to relatively minor offences that happened a long time ago, whilst being less likely to consider the de-listing of results relating to more serious ones that happened more recently. However, these issues call for careful consideration and will be handled on a case-by-case basis.” 48. After the Court of Appeal had given its judgment in the present case, 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 (“the GDPR”) repealed Directive 95/46/EC of 24 October 1995. Article 17 of the GDPR provides as follows: Article 17 Right to erasure (“right to be forgotten”) “1. The data subject shall have the right to obtain from the controller the erasure of personal data concerning him or her without undue delay and the controller shall have the obligation to erase personal data without undue delay where one of the following grounds applies: (a) the personal data are no longer necessary in relation to the purposes for which they were collected or otherwise processed; ... 2. Where the controller has made the personal data public and is obliged pursuant to paragraph 1 to erase the personal data, the controller, taking account of available technology and the cost of implementation, shall take reasonable steps, including technical measures, to inform controllers which are processing the personal data that the data subject has requested the erasure by such controllers of any links to, or copy or replication of, those personal data. 3. Paragraphs 1 and 2 shall not apply to the extent that processing is necessary: (a) for exercising the right of freedom of expression and information; ... (d) for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes in accordance with Article 89(1) in so far as the right referred to in paragraph 1 is likely to render impossible or seriously impair the achievement of the objectives of that processing; ...” 49. After the delivery of the judgment in M.L. and W.W. v. Germany (cited above), the CJEU delivered two judgments on 24 September 2019 relating to requests for a preliminary ruling concerning the obligation for operators of search engines to grant requests for delisting (“de ‑ referencing”). The cases concerned are GC and Others v Commission nationale de l’informatique et des libertés (CNIL) ( C-136/17, EU:C:2019:773), and Google LLC, successor in law to Google Inc. v Commission nationale de l’informatique et des libertés (CNIL) ( C-507/17, EU:C:2019:772). 50. In the first judgment ( C-136/17 ), the CJEU reiterated that the operators of search engines could be required to grant requests for de ‑ referencing. Nevertheless, when they received a request to that effect, they had to weigh up the right to privacy and the right to protection of personal data of the person making the request for de-referencing against the freedom of information of Internet users potentially interested in accessing the information in question. The CJEU referred to the judgment in M.L. and W.W. v. Germany (cited above), inferring from it that it was for the operator of a search engine to “assess, in the context of a request for de ‑ referencing relating to links to web pages on which information is published relating to criminal proceedings brought against the data subject, ... whether, in the light of all the circumstances of the case, such as, in particular, the nature and seriousness of the offence in question, the progress and the outcome of the proceedings, the time elapsed, the part played by the data subject in public life and his past conduct, the public’s interest at the time of the request, the content and form of the publication and the consequences of publication for the data subject, he or she has a right to the information in question no longer, in the present state of things, being linked with his or her name by a list of results displayed following a search carried out on the basis of that name” (§ 77). 51. In the second judgment ( C-507/17 ), the CJEU specified that European Union law did not require the operator of a search engine to carry out de-referencing on all versions of its search engine. Nevertheless, it was required to do so on the versions of the search engine corresponding to all the member States and to put in place measures to discourage Internet users conducting a search from one of the member States from gaining access to the links in question found on non-EU versions of the search engine. Furthermore, EU law did not prevent a supervisory or judicial authority of a member State from weighing up the fundamental rights at stake in the light of national standards of protection of fundamental rights and, after weighing those rights against each other, from ordering the operator of such a search engine, where appropriate, to carry out de-referencing concerning all versions of the search engine. THE LAW ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 52. The applicant alleged that the order for him to anonymise the archived version of the impugned article on the website of the newspaper Le Soir constituted a violation of freedom of expression, freedom of the press and freedom to impart information. He 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.” Admissibility 53. The Court notes that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. MeritsThe parties’ submissions The parties’ submissions The parties’ submissions (a) The applicant (i) Lawfulness of the interference 54. The applicant submitted that the judgment against him had not been based on a clear and foreseeable law enabling him to foresee the legal consequences of his actions. Article 1382 of the Civil Code did not provide any clarification as to the type of restrictions allowed, their purpose, duration and scope or the possibility of reviewing them. The right to be forgotten as established in a handful of decisions of the Belgian courts applied only to newly published material and not to the digital reproduction of an original article that had been archived in unaltered form. 55. The Court of Appeal had drawn an analogy with the CJEU judgment in the case of Google Spain, transposing the principles established in that judgment regarding a search engine to a newspaper publisher. It had equated newspaper publishers with search engines without taking into account the fact that they were not subject to the same obligations, as newspaper publishers were granted exemptions “for journalistic purposes” within the meaning of Article 9 of Directive 95/46/CE, or the fact that the CJEU had expressly distinguished between these two types of activities. 56. Furthermore, the Belgian courts had previously held that the Protection of Private Life Act of 8 December 1992 did not impose a time ‑ limit on the press beyond which any information had to be disseminated in anonymous form by the person responsible for the processing or by a third party (see paragraph 36 above). That Act also expressly permitted journalists to process judicial data. In the applicant’s view, something that was permitted under a specific law could not be prohibited by the ordinary rules on liability. 57. The applicant added that the few decisions that had sanctioned the right to be forgotten on the basis of Article 1382 of the Civil Code set out criteria that had been the subject of novel, and therefore unforeseeable, interpretations. Finding, as the Court of Appeal had done in the instant case, that the proceedings were not designed to “punish the disclosure of past events, but to obtain the removal of information available online”, amounted to a substantial change in the criteria for applying the right to be forgotten hitherto recognised by the case-law. In the applicant’s view, the extensive interpretation of those criteria by the Court of Appeal conferred an absolute and automatic character on the right to be forgotten which meant that with the passage of time it was possible to obtain the anonymisation of any electronic archive, and hence of all newspaper judicial archives. This would result in a gradual erosion of the integrity of the journalistic archives, if it was possible for anyone to have the information made anonymous. There was even a risk that the activity of archiving itself would disappear. Anonymisation therefore needed to be part of a particularly tight framework ensuring effective judicial review to prevent possible abuse. 58. Lastly, the applicant emphasised that the GDPR, which incorporated the interpretation of the right to be forgotten given by the CJEU in its Google Spain judgment, specifically provided for an exemption for the processing of data “for archiving purposes in the public interest” (Article 17(3)(d); see paragraph 48 above). (ii) Necessity of the interference 59. In the applicant’s view, the judgment against him had not been strictly necessary in a democratic society. The source of G.’s grievance was the fact that the article was indexed by search engines, rather than the article as such. It was search engines that brought the archives to light. A decision should therefore have been taken to de-index the article rather than anonymising it, as this was less restrictive of freedom of expression. 60. There were significant issues at stake in the present case, as requests for anonymisation posed a serious threat to digital archiving. Recognising a right to be forgotten with regard to journalistic archives entailed a risk that this right would become a right to have information deleted or rewritten and hence a risk of undermining freedom to convey information and the very concept of archives, which presupposed the existence of documents in their original unaltered form. The order for the applicant to anonymise the archive in question would have a chilling effect on freedom of expression and freedom of the press and would ultimately prompt him to cease electronic archiving. 61. Furthermore, the Belgian courts had not weighed up the competing interests at stake in accordance with the criteria established in the Court’s case-law. In particular, the assessment as to whether G. was known to the public had been incompatible with the Court’s case-law, according to which individuals could not complain of a loss of reputation which was a foreseeable consequence of their own actions, such as the commission of a criminal offence. 62. As to the severity of the measure imposed, the applicant submitted that other measures had existed that were less restrictive of freedom of expression, such as making an addition to the news item published at the time, referring to the order rehabilitating G., or the delisting of the article by search engines such as Google. With regard to the last of these, the applicant alleged that it had been up to G. to submit a request for delisting to the operators of the search engines. Nevertheless, in an effort to assist the applicant, the newspaper’s legal department had itself requested Google to delist the article in question but had received no response. 63. The applicant inferred from this that the reasons given by the Court of Appeal and upheld by the Court of Cassation were insufficient to demonstrate that the interference had been “necessary in a democratic society”. The Court of Cassation had merely found that the Court of Appeal judgment had been legally justified, without replying to the arguments raised by the applicant. 64. The applicant added that the right to be forgotten could not be transformed into a right for each individual to rewrite his or her personal history. Criminal convictions that had been the subject of public proceedings reported on by the press fell into the category of information that could legitimately be retained by the media. The information could be delisted if the relevant criteria were satisfied, but it could not be censored. (b) The Government (i) Lawfulness of the interference 65. The Government observed that the foreseeability of the law should not translate into excessive rigidity. In the present case the judgment against the applicant was based on the provisions of the Convention and the Constitution guaranteeing the right to protection of private life – of which the right to be forgotten formed a part – and on Article 1382 of the Civil Code, which together constituted a sufficiently foreseeable legal basis. Hence, the interference with freedom of expression did not stem either from the Belgian legal literature or case-law or from the CJEU’s Google Spain judgment. 66. It was acknowledged in the Belgian ordinary rules on liability that a violation of the right to respect for private life, of which the right to be forgotten was a part, constituted a fault resulting from a breach of a written rule of conduct. Hence, the applicant could not have been unaware that he might be held liable. Article 1382 of the Civil Code was sufficiently accessible, clear, precise and foreseeable. Taken together with Article 8 of the Convention, it formed a sufficiently foreseeable basis justifying interference with freedom of expression. 67. The fact that other courts, whether in Belgium or elsewhere, had reached a different conclusion was irrelevant in so far as those courts had applied the same reasoning, which had resulted in different outcomes depending on the specific circumstances of the cases before them. In any event, any exemptions allowed for journalists were not absolute and had to be weighed up in the light of the criteria established by the Court. (ii) Necessity of the interference 68. The Government pointed out that neither the public’s right to be informed about past events nor the right to create online archives was an absolute right. In their view, the initial interference with G.’s exercise of his right to respect for his private life stemmed from the decision of the publisher of Le Soir to publish the information in question and to keep it online, albeit without drawing the public’s attention to it. The domestic courts had examined all the legal and technical arguments advanced by the parties and had imposed a proportionate measure on the applicant, taking into account the range of different measures proposed by him. In particular, they had deemed it insufficient to add a comment to the online article. The Court of Appeal had opted for the anonymisation of the article after weighing up the interests at stake. The Government stressed that the integrity of the archives as such was not impaired by the judgment given against the applicant, but merely the public’s access to the online version of the article. The paper archives remained intact and people like researchers could still request access to the non-anonymised digital version of the article. 69. The case was to be distinguished from that of M.L. and W.W. v. Germany (nos. 60798/10 and 65599/10, 28 June 2018) in view of the particular circumstances of the case, and especially the fact that G. was not well known, the fact that he had had no contact with the media and the minimal interest of the events reported on in the article. The information had become damaging precisely because of the passage of time, and the article had been published online more than fifteen years after publication of the print version. The present case was therefore also to be distinguished in terms of the facts from the judgment in Węgrzynowski and Smolczewski v. Poland (no. 33846/07, 16 July 2013). 70. In conclusion, the Government observed that the Belgian courts had determined a specific dispute between two parties in the context of a civil action for damages while seeking to ensure that a balance was struck between two competing fundamental rights claimed by the parties. They had taken their decisions after examining the criteria established by the Court and striking a reasonable balance between the interests at stake. There were therefore no sufficiently strong reasons for the Court to substitute its assessment for that of the domestic courts. Submissions of the third-party intervener 71. The third-party intervener, G., was the person who had requested anonymisation of his name in the article in issue. In his view, the applicant had displayed excessive zeal in objecting to the request. As to the facts, he pointed out in particular that although he had himself, in the proceedings before the Court of First Instance, proposed the use of a no-index tag as an alternative to anonymisation, it was the applicant who had subsequently rejected that solution. 72. In G.’s view, Article 1382 of the Civil Code, taken in conjunction with the right to be forgotten as recognised by the case-law and legal literature as an integral part of the right to respect for private life, constituted a sufficiently foreseeable legal basis satisfying the requirements of Article 10 § 2 of the Convention. 73. As to the necessity of the interference, he stressed the fact that the article belonged to the past, which meant that it attracted a lesser degree of protection; the significant repercussions of re-publication of the article on the Internet as a result of the publication of the archives online; and the complete lack of any public interest in the inclusion of his full name in the article. Furthermore, it was not a question of requiring the media to remove all personal data from their archives as a blanket measure, or to remove the data of anyone who so requested, but of requiring them to assess the fundamental rights at stake in context. The Court’s assessment 74. It is not disputed that the civil judgment against the applicant ordering him to anonymise the impugned article amounted to “interference” with his rights under Article 10 of the Convention. 75. An interference with the right to convey information or ideas will infringe the Convention if it does not meet the requirements of paragraph 2 of Article 10. It should therefore be determined whether the interference was “prescribed by law”, whether it pursued one or more of the legitimate aims set out in that paragraph and whether it was “necessary in a democratic society” in order to achieve the relevant aim or aims. (a) Lawfulness of the interference 76. The applicant alleged that the judgment against him had not been foreseeable. 77. The general principles concerning the requirement of foreseeability of the law under Article 10 of the Convention are summarised in the judgment in Delfi AS v. Estonia [GC], no. 64569/09, §§ 120-22, ECHR 2015; see also, more recently, Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland [GC], no. 931/13, §§ 142-45, 27 June 2017; Magyar Kétfarkú Kutya Párt v. Hungary [GC], no. 201/17, §§ 93-101, 20 January 2020; and Selahattin Demirtaş v. Turkey (no. 2) [GC], no. 14305/17, §§ 249-53, 22 December 2020). 78. The Court must seek to ascertain whether the way in which the domestic courts applied Article 1382 of the Civil Code – which constitutes the ordinary rules on liability – to the applicant’s situation was foreseeable. In so doing it will take account of the domestic legal framework as a whole, that is to say, both the written norms that were applied and the general principles stemming from the legislation and the case-law (see Delfi AS, cited above, § 128). 79. The Court observes at the outset that Belgian law recognises a right to be forgotten as an integral part of the right to respect for private life (see paragraph 31 above). As pointed out by the Court of Cassation in the present case, that right flows from Article 8 of the Convention, Article 17 of the International Covenant on Civil and Political Rights, and Article 22 of the Constitution (see paragraph 27 above). The Court of Appeal relied on these provisions in particular in recognising G.’s right to be forgotten (see paragraph 14 above). 80. Interpreting the scope of the right to be forgotten is a matter for the national authorities, notably the courts, which have primary responsibility for interpreting domestic law. Unless the interpretation is arbitrary or manifestly unreasonable, the Court’s role is confined to ascertaining whether the effects of the interpretation are compatible with the Convention (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 149, 20 March 2018; S., V. and A. v. Denmark [GC], nos. 35553/12 and 2 others, § 148, 22 October 2018; and Molla Sali v. Greece [GC], no. 20452/14, § 149, 19 December 2018). 81. The question raised by the applicant before the domestic courts was whether G. satisfied the relevant criteria in order to claim the right to be forgotten, in so far as, in the applicant’s view, the article in question was not newly published material but an archived version of an old article. In this regard the Court of Cassation upheld the interpretation of the Court of Appeal, which had found that the online publication of the archived version of the article amounted to “fresh disclosure” of G.’s previous conviction (see paragraph 27 above). 82. The Court cannot subscribe to the applicant’s view that the Court of Appeal, in referring to the CJEU judgment in Google Spain, had equated newspaper publishers with search engines. As explained by the Court of Cassation, the Court of Appeal had referred to the above-mentioned judgment, which concerned a search engine, only for the purpose of determining the scope of the right to be forgotten per se. 83. In the Court’s view, this interpretation by the national courts of the provisions concerning the protection of private life was neither arbitrary nor manifestly unreasonable. 84. Returning to Article 1382 of the Civil Code, this provision requires a person to make good any damage caused through his or her fault, including the unjustified infringement of a right. This provision serves as the basis for civil actions for alleged abuse of press freedom (see paragraph 33 above). 85. Accordingly, the Court is not persuaded by the applicant’s argument that it had not been foreseeable that judgment might be given against him on the basis of the ordinary rules on liability on account of an infringement of the right to be forgotten stemming from the digital reproduction of an old article. It observes in that connection that the fact that a legal provision is applied for the first time in a certain type of case does not suffice to establish a lack of foreseeability (see Satakunnan Markkinapörssi Oy and Satamedia Oy, cited above, § 150; Magyar Kétfarkú Kutya Párt, cited above, § 97; and Selahattin Demirtaş, cited above, § 253). 86. Likewise, the fact that there are examples of cases in which the courts ruled differently is not sufficient to establish a lack of foreseeability, since all the circumstances of the case must be taken into account in matters that involve the balancing of rights. This is especially true since the case ‑ law to which the applicant referred had a different legal basis, namely the Protection of Private Life Act of 8 December 1992 (see paragraph 36 above; see, conversely, RTBF v. Belgium, no. 50084/06, §§ 113-14, ECHR 2011). 87. Moreover, the Court notes that in previous cases examined under Article 10 of the Convention, it has accepted a provision constituting the ordinary rules on civil liability as a sufficiently foreseeable legal basis (see, with regard to Article 1382 of the Belgian Civil Code, De Haes and Gijsels v. Belgium, 24 February 1997, Reports of Judgments and Decisions 1997 ‑ I, and Leempoel & S.A. ED. Ciné Revue v. Belgium, no. 64772/01, 9 November 2006; for cases concerning other States in which the interference with freedom of expression was also based on the ordinary rules of liability, see, for instance, Węgrzynowski and Smolczewski, cited above, § 64, and M.L. and W.W. v. Germany, cited above, §§ 48-49). 88. It follows from the foregoing that the judgment given against the applicant had a legal basis that satisfied the foreseeability requirement. The interference was therefore “prescribed by law”. (b) Legitimate aim 89. The parties agreed that the interference had pursued a legitimate aim within the meaning of Article 10 § 2, namely the protection of the reputation or rights of others, in this case G.’s right to respect for his private life. (c) Necessity of the interference 90. The Court emphasises that, as in the case of M.L. and W.W. v. Germany (cited above, § 99), it is not the lawfulness of the article when it was first published that is in issue, but the fact that it was made available on the Internet and the possibility of accessing the article a long time after the events. 91. The task of the national courts was to balance the various rights at stake: the freedom of expression of the applicant as a publisher, and in particular his right to convey information to the public, on the one hand, and G.’s right to protection of his private life on the other. 92. The Court will first reiterate the principles concerning the balancing of the rights in issue and the criteria to be taken into account in assessing the necessity of an interference with freedom of expression as guaranteed by Article 10 of the Convention, especially where, as in the present case, the issue concerns a digital archive available on the Internet ( i ). It will then apply those criteria to the particular circumstances of the case ( ii ). (i) The applicable general principles (α) Balancing of the rights 93. The Court refers to the general principles as set out in numerous judgments concerning the balancing of the rights guaranteed by Articles 8 and 10 of the Convention (see, among other authorities, Axel Springer AG v. Germany [GC], no. 39954/08, §§ 78-84, 7 February 2012; Couderc and Hachette Filipacchi Associés v. France [GC], no. 40454/07, §§ 82-93, ECHR 2015 (extracts); Bédat v. Switzerland [GC], no. 56925/08, §§ 48-54, 29 March 2016; and Satakunnan Markkinapörssi Oy and Satamedia Oy, cited above, §§ 162-65). As it has held repeatedly, these rights as a matter of principle deserve equal respect (see, among other authorities, Axel Springer AG, cited above, § 87; Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 106, CEDH 2012; Delfi AS, cited above, §§ 110 and 139; Couderc and Hachette Filipacchi Associés, cited above, § 91; and Bédat, cited above, § 52). 94. The Court has already had occasion, in examining an initial publication, to lay down the relevant principles which must guide its assessment – and, more importantly, that of the domestic courts – as to whether an instance of interference was necessary. It has thus identified a number of criteria in the context of balancing the right to freedom of expression and the right to respect for private life. The criteria are as follows: (i) contribution to a debate of public interest; (ii) whether the person concerned is known to the public, and the subject of the news report; (iii) the prior conduct of the person concerned; (iv) the way in which the information was obtained and its veracity; (v) the content, form and consequences of the publication; and (vi) the severity of the measure imposed (see Axel Springer AG, cited above, §§ 89-95, and Satakunnan Markkinapörssi Oy and Satamedia Oy, cited above, § 165, and the references therein; see also the CJEU judgment in GC and Others v Commission nationale de l’informatique et des libertés (CNIL), cited at paragraph 50 above). 95. According to the Court’s case-law, the test of “necessity in a democratic society” requires the Court to determine whether the interference complained of corresponded to a pressing social need, and in particular whether the reasons given by the national authorities to justify it were relevant and sufficient and whether it was proportionate to the legitimate aim pursued (see The Sunday Times v. the United Kingdom (no. 1), 26 April 1979, § 62, Series A no. 30, and Vavřička and Others v. the Czech Republic [GC], nos. 47621/13 and 5 others, § 273, 8 April 2021). 96. The Court further reiterates that, under Article 10 of the Convention, the Contracting States enjoy a certain margin of appreciation in assessing whether and to what extent an interference with the freedom of expression guaranteed under that provision is necessary. 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 Axel Springer AG, cited above, §§ 85 ‑ 86). 97. Where the balancing exercise 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, among other authorities, Axel Springer AG, cited above, § 88; Couderc and Hachette Filipacchi Associés, cited above, § 92; Bédat, cited above, § 54; and Satakunnan Markkinapörssi Oy and Satamedia Oy, cited above, § 164). (β) The specific nature of online publication of digital archives 98. The great majority of cases concerning a conflict between the right to freedom of expression and the right to respect for private life examined by the Court have related to the initial publication of information about private aspects of the lives of individuals or their families (see, among many other authorities, Hachette Filipacchi Associés ( ICI PARIS ) v. France, no. 12268/03, 23 July 2009; Axel Springer AG, cited above; Couderc and Hachette Filipacchi Associés, cited above; Satakunnan Markkinapörssi Oy and Satamedia Oy, cited above; and, more recently, Falzon v. Malta, no. 45791/13, 20 March 2018). 99. Unlike those cases, the present case concerns the online publication in 2008, and the continued availability to date, of the archived version of an article originally published in 1994 in the print edition of the newspaper Le Soir, in a situation where the lawfulness of the initial publication is not disputed. In response to a request to that effect by G., the domestic courts ordered the applicant to anonymise the digital archive of the impugned article by replacing G.’s full name with the letter X. 100. The Court has previously held that, in addition to its primary function, the press has a secondary but nonetheless valuable role in maintaining archives containing news which has previously been reported and making them available to the public. Internet archives make a substantial contribution to preserving and making available news and information. Digital archives constitute an important source for education and historical research, particularly as they are readily accessible to the public and are generally free (see Times Newspapers Ltd v. the United Kingdom (nos. 1 and 2), nos. 3002/03 and 23676/03, §§ 27 and 45, ECHR 2009; Węgrzynowski and Smolczewski, cited above § 59; Fuchsmann v. Germany, no. 71233/13, § 39, 19 October 2017; and M.L. and W.W. v. Germany, cited above, § 90 ). 101. In a case such as the present one, the rights of a person who has been the subject of content available on the Internet must therefore be balanced against the public’s right to be informed about past events and contemporary history, in particular through the use of digital press archives (see M.L. and W.W. v. Germany, cited above, § 104). 102. In that connection the Court is keenly aware of the risk of a chilling effect on freedom of the press posed by a requirement for a publisher to anonymise an article whose lawfulness has not been questioned. The obligation to examine at a later stage the lawfulness of keeping a report online following a request from the person concerned, which implies weighing up all the interests at stake, entails a risk that the press might refrain from keeping reports in its online archives or omit individualised elements in reports likely to be the subject of such a request (see M.L. and W.W. v. Germany, cited above, § 103). 103. The Court is also mindful of the fact that the alteration of the archived version of an article undermines the integrity of the archives and thus their very essence. The domestic courts must therefore be particularly vigilant whenever they grant a request for anonymisation or alteration of the electronic version of an archived article on the grounds of respect for private life. 104. That being said, the right to keep archives available to the public online is not an absolute right but must be balanced against the other rights at stake. In this context, in the Court’s view, the criteria to be taken into account regarding the online publication or continued availability of archived material are, in principle, the same as those applied by the Court in the context of initial publication. Nevertheless, certain criteria may have more or less relevance given the particular circumstances of the case and the passage of time (see, to similar effect, M.L. and W.W. v. Germany, cited above, § 96; see also Satakunnan Markkinapörssi Oy and Satamedia Oy, cited above, § 166). (ii) Application of these principles in the present case (α) Contribution to a debate of public interest 105. As to the existence of a debate of public interest not diminished by the passage of time (see M.L. and W.W. v. Germany, cited above, § 99), the Court stresses the fact that, by their very nature, archives contribute to a debate of public interest in a different way from an initial publication. Above all, digital archives constitute an important source for education and historical research (see paragraph 100 above) and for placing current events in context. The weight to be given to this criterion in balancing the interests at stake must therefore be tailored to the specific nature of such archives. 106. In the present case, the Court of Appeal correctly observed that the online publication of the article did not have any value in terms of newsworthiness (see paragraph 17 above). It held that, twenty years after the events, the identity of a person who was not a public figure did not enhance the public interest of the impugned article, which merely contributed at a statistical level to a general debate on road safety. 107. The article concerned a series of – admittedly tragic – events whose contribution to a debate of public interest related mainly to the hazards of road traffic and the causes of those hazards. Hence, the Court notes the Court of Appeal’s finding that mentioning G.’s full name was not apt, twenty years after the events, to contribute to a debate of public interest (see, conversely, M.L. and W.W. v. Germany, cited above, § 106). (β) Whether the person concerned was known to the public, and the subject of the article 108. As to whether the person concerned was known to the public, and the subject of the article, it is true that the Court has previously found, as pointed out by the applicant, that Article 8 of the Convention cannot be relied on in order to complain of a loss of reputation which is the foreseeable consequence of one’s own actions, such as the commission of a criminal offence (see Axel Springer AG, cited above, § 83; Gillberg v. Sweden [GC], no. 41723/06, § 67, 3 April 2012; Medžlis Islamske Zajednice Brčko and Others v. Bosnia and Herzegovina [GC], no. 17224/11, § 76, 27 June 2017; M.L. and W.W. v. Germany, cited above, § 88; and Denisov v. Ukraine [GC], no. 76639/11, § 98, 25 September 2018). 109. However, this does not mean that a person with a past criminal conviction may never claim the right to be forgotten; were this so, that right would be devoid of substance. The Court considers that after a certain amount of time has passed, persons who have been convicted may have an interest in no longer being confronted with their acts, with a view to their reintegration in society (see M.L. and W.W. v. Germany, cited above, § 100, and the references contained therein). As stated by the Court of Appeal, the electronic archiving of an article concerning the commission of an offence must not create a kind of “virtual criminal record” for the person concerned (see paragraph 17 above). This is particularly true where, as in the present case, the person has served his or her sentence and been rehabilitated. 110. Although, after the commission of a criminal offence and while the trial is ongoing, a hitherto unknown person may acquire a degree of notoriety, that notoriety may also decline with the passage of time (see M.L. and W.W. v. Germany, cited above, § 106). Indeed, the public’s interest as regards criminal proceedings will vary in degree (ibid., § 100). Thus, in some cases, the right to be forgotten may confer on the person concerned the right to revert to being simply an individual unknown to the public. Again, time is a very important factor in this regard. 111. In the present case the Court of Appeal observed that G. did not hold any public office (see paragraph 17 above). He was a private individual unknown to the general public at the time of his request for anonymisation (see, conversely, M.L. and W.W. v. Germany, cited above, § 106). The facts for which he had been convicted were not the subject of any media coverage with the exception of the impugned article, either at the time of the events reported on or when the archived version of the article was published on the Internet. (γ) The conduct of the person concerned with regard to the media 112. The domestic courts did not rule expressly on the issue of G.’s conduct with regard to the media. The Court notes that G. did not at any time contact the media to publicise his situation, either when the article first appeared in 1994 or when it was published online in 2008 (see, conversely, M.L. and W.W. v. Germany, cited above, §§ 108-09). It is clear from his letters to Le Soir requesting the removal or anonymisation of the article (see paragraph 7 above) that, on the contrary, he made every effort to stay out of the media spotlight. (δ) How the information was obtained and its veracity 113. The veracity of the facts related in the article was not disputed by G. (see, mutatis mutandis, M.L. and W.W. v. Germany, cited above, § 111, and, conversely, Węgrzynowski and Smolczewski, cited above, § 60). Likewise, G. did not allege that the information had been obtained in breach of journalistic ethics. Moreover, the Court of Appeal found that it was not disputed that the initial disclosure of the information had been lawful (see paragraph 17 above). (ε) The content, form and consequences of the publication 114. Firstly, as regards the content of the article in question, it dealt with several road-traffic accidents which had occurred within the space of a few days in 1994. The accident caused by G. was one of them (see paragraph 5 above). 115. Secondly, with regard to the form of the publication, an issue on which the domestic courts likewise did not rule expressly, the Court reiterates that Internet sites are an information and communication tool particularly distinct from the printed media, especially as regards the capacity to store and transmit information, and that 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 printed publications (see Editorial Board of Pravoye Delo and Shtekel v. Ukraine, no. 33014/05, § 63, ECHR 2011 (extracts); Węgrzynowski and Smolczewski, cited above, § 58; Delfi AS, cited above, § 133; and M.L. and W.W. v. Germany, cited above, § 91). 116. The Court has inferred from this that the policies governing reproduction of material from the printed media and the Internet may differ (see Editorial Board of Pravoye Delo and Shtekel, cited above, § 63, and Węgrzynowski and Smolczewski, cited above, § 58). The same is true as regards paper and digital archives, as the scope of the latter is much greater and the repercussions on the private life of the individuals who are named are correspondingly more serious, an effect that is further amplified by search engines. 117. As to the extent to which the archived version of the article was disseminated, the Court takes account of the fact that consulting archives requires an active search which involves entering keywords on the web page containing the newspaper’s archives. Given its location on the website, the article in issue was not likely to attract the attention of those Internet users who were not seeking information about G. Likewise, the Court does not doubt that maintaining access to the article was not intended to re ‑ disseminate information about G. (see, to similar effect, M.L. and W.W. v. Germany, cited above, § 113). 118. The Court nevertheless notes that in the instant case, at the time of G.’s request and throughout the domestic proceedings, access to the archives of the newspaper Le Soir was unrestricted and free of charge (compare with M.L. and W.W. v. Germany, cited above, § 113, where certain articles were accessible only behind a paywall or for subscribers). 119. The applicant pointed out that in the present case the judgment had not been against the operator of the search engine but against the publisher of a newspaper whose articles were accessible online. 120. Like the CJEU, the Court accepts that the obligations of search engines may differ from those of the entity which originally published the information (see M.L. and W.W. v. Germany, cited above, § 97; see also paragraph 45 above). It is also true that it is primarily because of search engines that the information on individuals that is held by the media outlets concerned can easily be found by Internet users (see M.L. and W.W. v. Germany, cited above, § 97). However, it cannot be overlooked that the very fact that a newspaper posts an article on its website has an impact on the visibility of the information in question. Thus, the initial interference with G.’s right to respect for his private life resulted from the applicant’s decision to publish that information on his website and, especially, to keep it available there, even without the intention of attracting the public’s attention (ibid.). 121. Thirdly, as to the consequences of publication, the Court of Appeal noted that a simple search using G.’s first name and surname on the search engine of Le Soir or on Google immediately brought up the article (see paragraph 17 above). The Court of Appeal held that keeping the impugned article online was therefore liable to cause indefinite and serious harm to G.’s reputation by giving him, as already observed (see paragraph 109 above), a “virtual criminal record”, despite the fact that he had not only served his sentence after a final conviction for the offence but had also been formally rehabilitated. 122. In the Court’s view, this assessment by the Court of Appeal cannot be regarded as arbitrary or manifestly unreasonable. With the passage of time, individuals should have the opportunity to rebuild their lives without being confronted with their past mistakes by members of the public (see, mutatis mutandis, Österreichischer Rundfunk v. Austria, no. 35841/02, § 68, 7 December 2006, and M.L. and W.W. v. Germany, cited above, § 100). Name searches have become commonplace in today’s society, and more often than not people conduct such searches for reasons wholly unconnected to any prosecution or conviction of the person concerned. (στ) The severity of the measure imposed on the applicant 123. Lastly, as regards the severity of the measure imposed on the applicant, the Court must seek to ascertain whether the domestic courts took into account the impact of the measure on the applicant and Le Soir and whether they examined, within the limits of the case before them, whether other measures less restrictive of freedom of expression could be considered. 124. The Court notes that in the proceedings before the domestic courts the applicant maintained that a balance between the rights at stake could be achieved by means of a right to rectification or communication, that is to say, by adding further information to the impugned article. The Court of Appeal took the view that such a procedure would not be appropriate in the present case as it would allow the stigmatising effect of the offences committed by G., and of the sentence he had already served, to persist indefinitely and would render the rehabilitation order given in his favour meaningless. 125. Before the Court, the applicant subsequently alleged that the Court of Appeal had not made clear why the addition by Le Soir of a no-index tag would be insufficient to secure G.’s right to respect for his private life. He also alleged, referring in particular to the CJEU’s Google Spain judgment, that G. should have asked search engines like Google to delist the impugned article. The Court notes that in the Court of Appeal proceedings the applicant argued that only the search engines were competent to deal with G.’s request and that the latter had erroneously directed his request against the applicant. 126. As to the addition by Le Soir of a no-index tag on the article, it does not appear from the documents in the domestic case file to which the Court has access that the applicant argued before the lower courts that the addition of such a tag would suffice to secure G.’s right to respect for private life. In any event, the Court of Appeal noted that at the time of delivery of its judgment the article in question was still available on the website of Le Soir without any no-index tag. 127. As to the delisting of the article by search engines, the Court considers that the relevance of such a measure is to be assessed in the context of the case brought before the courts. As G.’s request was directed against the applicant alone, the courts cannot be criticised for simply examining the admissibility and merits of that request. It is true that it was open to Le Soir to take the initiative and itself request the search engines to delist the article in question, in response to the request it had received from G. to ensure respect for his private life. The applicant stated that the newspaper’s legal department had in fact contacted Google for that purpose, but had received no reply (see paragraph 8 above). As G. did not request delisting of the article by the search engines in the context of his dispute with the applicant, and the latter did not have it delisted as an alternative to anonymisation, the Court considers it unnecessary to examine in the abstract whether delisting was apt to achieve a fair balance between the interests at stake. Likewise, in so far as the matter was not raised in the proceedings before the domestic courts, it is not the Court’s task to consider of its own motion possible alternative methods, less restrictive of the applicant’s right to freedom of expression, that might have been used in the present case. 128. The Court of Appeal took the view that the most effective means of protecting G.’s privacy without disproportionately interfering with the applicant’s freedom of expression was to anonymise the article posted on Le Soir ’s website by replacing G.’s first name and surname with the letter X (see paragraph 22 above). In reply to an argument advanced by the applicant, it stressed the fact that he had not been requested to remove the article from the archives but simply to render the electronic version anonymous; the paper archives remained intact and the applicant could still ensure the integrity of the original digital version (see paragraph 18 above). Replying to a further argument by the applicant citing the technical impossibility of altering archived articles, the Court of Appeal considered that the impossibility of doing so had not been established (see paragraph 25 above). 129. With regard to archives, the Court attaches considerable weight to the fact that the nature of the measure imposed in the present case preserved the integrity of the archived article, since it was only a matter of anonymising the online version of the article and the applicant was allowed to keep the original digital and paper archives. As pointed out by the Government, this meant, in particular, that anyone interested in the original version of the article could still request access to it, including in digital form (see paragraph 68 above). It was therefore not the article itself, but merely the ability to access it on the website of Le Soir, that was affected by the measure. 130. As to the Court of Appeal’s assessment of the technical feasibility for the applicant of anonymising the article on the website of Le Soir, the applicant did not adduce any evidence capable of persuading the Court that this assessment was arbitrary or manifestly unreasonable. 131. In view of the foregoing, the Court considers that the national courts were entitled to conclude that the test as to the proportionality of the interference with the right to freedom of expression was satisfied (see paragraph 16 above). (iii) Conclusion 132. In the light of the considerations outlined above, the Court considers that the domestic courts weighed in the balance G.’s right to respect for his private life and the applicant’s right to freedom of expression, in accordance with the criteria established in its case-law. Specifically, the Court of Appeal attached particular weight to the damage sustained by G. on account of the online publication of the article in question, having regard in particular to the passage of time since the publication of the original article and to the fact that the anonymisation of the article on the website of Le Soir left the archives themselves intact and constituted the most effective measure amongst those that could have been taken in the present case, without interfering disproportionately with the applicant’s freedom of expression. In the Court’s view, the reasons given by the domestic courts were relevant and sufficient. It sees no strong reason which would require it to substitute its view for that of the domestic courts and to set aside the balancing exercise carried out by them. It therefore finds that the measure imposed can be regarded as proportionate to the legitimate aim pursued and as striking a fair balance between the competing rights at stake. 133. Accordingly, in the specific circumstances of the present case, there has been no violation of Article 10 of the Convention. 134. The Court wishes to make it clear that its finding cannot be interpreted as entailing an obligation for the media to check their archives on a systematic and permanent basis. Without prejudice to their duty to respect private life at the time of the initial publication of an article, when it comes to archiving the article they are required to carry out a check, and thus weigh the rights at stake, only if they receive an express request to that effect. | In its Chamber judgment of 22 June 2021, the Court, by six votes to one, held that there had been no violation of Article 10 (freedom of expression) of the Convention, finding that the reasons given by the domestic courts had been relevant and sufficient, and that the measure imposed on the applicant could be regarded as proportionate to the legitimate aim pursued and as striking a fair balance between the competing rights at stake. On 11 October 2021 the Grand Chamber Panel accepted the applicant’s request that the case be referred to the Grand Chamber. On 9 March 2022 the Grand Chamber held a hearing in the case. |
808 | Legal capacity | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Legal incapacity and guardianship legislation 33. As concerns legal incapacity and guardianship, the Civil Code, in force at the material time and until 31 December 2015, provided : Article 2.10. Declaration of a person ’ s incapacity “1. A natural person who, as a result of mental illness or dementia, is unable to understand the meaning of his actions or control them may be declared incapacitated. The incapacitated person shall be placed under guardianship. 2. Contracts on behalf and in the name of a person declared incapacitated shall be concluded by his guardian ... 3. Where a person who was declared incapacitated recovers from illness or his state of health improves considerably, the court shall reinstate his capacity. Once the decision takes effect, guardianship of the person shall be revoked. 4. A request to declare a person legally incapacitated may be lodged by a person ’ s spouse, parents or adult children, a care institution or a public prosecutor. They also have the right to apply to the courts for recognition of the person ’ s capacity.” Article 2.11. Limitation of a person ’ s active civil capacity “1. The courts may impose restrictions on a person ’ s civil capacity if he abuses alcohol, drugs or narcotic or toxic substances. Once limitations on a person ’ s capacity have been imposed, he shall be placed under guardianship .. .” Article 2.11 1. The Register of legally incapacitated persons and persons of limited capacity “1. The Register of legally incapacitated persons and persons of limited capacity shall record persons who are declared in accordance with the procedure laid down by the court to be legally incapacitated or whose civil capacity is limited ..., guardians and curators ( globėjai ir rūpintojai ) of such persons; the data of the court decisions, adopted in respect of them, concerning the establishment and revocation of legal capacity or limitation of legal capacity...” Article 3.238. Guardianship “1. Guardianship is established with the aim of exercising, protecting and defending the rights and interests of a legally incapacitated person. 2. Guardianship includes guardianship of a person ’ s assets, but if necessary, an administrator may be appointed to manage [these] .” Article 3.240. Legal status of guardians and curators “1. Guardians and curators represent those under guardianship in accordance with the law and defend the rights and interests of legally incapacitated people or people of limited active capacity without any specific authorisation. 2. A guardian is entitled to enter into all necessary transactions in the interests and on behalf of the legally incapacitated person represented ... ” Article 3.241. Guardianship and curatorship authorities “1. Guardianship and curatorship authorities are municipal or regional authorities concerned with the supervision and control of the activities of guardians and curators. 2. The functions of guardianship and curatorship in respect of residents of a medical or educational institution or [ an institution run by a] guardianship (curatorship ) authority who have been declared by the court as legally incapable or of limited active capacity shall be performed by the relevant medical, educational or guardianship (curatorship ) authority until a permanent guardian or curator is appointed ... ” 34. In 2007, the year the applicant was declared legally incapacitated, the Code of Civil Procedure provided that an application to declare a person legally incapacitated could be submitted by his spouse, children or parents, a guardianship institution or a public prosecutor (Article 463 § 1 ). The parties to the incapacitation proceedings consisted of, besides the person who had initiated them, the person whose legal capacity was in question, as well as the guardianship (care) authority. The court could also invite close relatives or family members living with the person whose incapacitation was to be decided to join the proceedings. If it was impossible to call into or question in court a person subject to incapacitation proceedings or serve court documents on him because of his state of health, as confirmed by medical opinion, the court could hear the case in his absence (Article 464 §§ 1 and 2). 35. An application for a person ’ s incapacity had to contain information about the mental illness ( psichikos sutrikimas ) which had left him unable to understand the meaning of his actions or control them. In addition, it had to contain a medical report and other evidence about his psychological state (Article 465). When preparing the case the judge had to order a psychiatric report to establish the person ’ s psychological state, and obtain medical documents necessary for the expert report (Article 466). 36. The question of incapacity had to be decided at an oral hearing, having informed all the parties to the proceedings. If the court considered it necessary to hear and question the person whose legal capacity was in question, and he did not appear, the court could order the police to escort him, or order another court within whose territory that person resides, to question him. The person had to be questioned in the presence of a court psychiatrist (Article 467 §§ 1 and 2 ). 37. A person declared legally incapacitated by the court had a right to appeal against the decision to a higher court (Article 468 § 5). 38. A copy of the decision had to be sent to the parties and third parties absent from the hearing within five days of the date the decision was pronounced (Article 275 § 1). 39. Article 366 § 1 (6) and (7) of the Code of Civil Procedure provided that proceedings could be reopened if one of the parties was incapacitated and did not have a representative, or if the court had taken a decision in respect of a party not involved in the proceedings. 40. The Law on State Guaranteed Legal Aid ( Valstybės garantuojamos teisinės pagalbos įstatymas – “the Law on Legal Aid”) provided that those subject to incapacitation proceedings were eligible for “ secondary ” legal aid regardless of their assets and level of income levels (Article 12 § 1 (11)). The authorities could refuse to provide legal aid where an applicant ’ s claims were manifestly ill-founded or where representation in the matter had no reasonable prospect of success (Article 11 § 6 (1, 2)). 41. The Constitution provides that citizens who are recognised as incapable by the courts cannot participate in elections or stand for election as a Member of the Seimas (Articles 34 and 56 ). 42. The Civil Code stipulates that a transaction is voidable if it is made by someone who, within the procedure established by law, is recognised as legally incapable by reason of a mental disorder (Article 1.84 § 2). A person who has been declared legally incapacitated by a court judgment in force cannot marry (Article 3.15 § 1). Furthermore, a will may only be made by a legally capable person able to understand the importance and consequences of his actions (Article 5.15 § 2). 43. Article 27 of the of the Law on Mental Healthcare ( Psichikos sveikatos priežiūros įstatymas ) provides that a person who is seriously mentally ill and refuses hospitalisation can be admitted involuntarily to hospital if there is a real danger that by his actions he is likely to commit serious harm to his health or life or the health or life of others. In such circumstances, the patient may be involuntarily hospitalised and given treatment in a mental health facility without court authorisation for a period not exceeding forty-eight hours. If the court does not give authorisation within this time, the involuntary hospitalisation and treatment must be stopped (Article 28). B. Legislative steps to regulate the situation of those suffering from a mental disability 1. Explanatory memorandum No. XIIP-1656 by the Ministry of Justice 44. On 2 April 2014 the Ministry of Justice adopted an explanatory memorandum ( aiškinamasis raštas ) in connection with proposed legislative changes relating to the protection of the rights of the disabled. The changes were prompted by the ratification of the United Nations Convention on the Rights of Persons with Disabilities, ratified by Lithuania in 2010 (for the relevant extracts from that Convention, see paragraph 6 9 below) and the Court ’ s practice. The changes aimed at improving existing domestic standards in the light of Article 12 of the aforementioned Convention, which specifies that States should recognise that people with disabilities enjoy legal capacity on an equal basis with others in all aspects of life, and therefore States should take appropriate measures to provide them with access to the support they may require in exercising their legal capacity. 45. The explanatory memorandum acknowledged that the law as it existed in Lithuania lacked a legal framework for how assistance could be provided to people with disabilities, including those suffering from mental illness. As a result, those with psychiatric illnesses, owing to which they could not always make decisions in their best interests, would be exposed to the most restrictive measure – full incapacitation. Even if a person could partially understand or control his actions, limiting his legal capacity by only allowing him to act in certain areas of life was not permitted by law. However, limited legal capacity could be established in respect of people who abused narcotic or psychotropic substances or alcohol (Articles 2.10 and 2.11 of the Civil Code, see paragraph 33 above ). 46. It was also pertinent that under Article 2.10 of the Civil Code, once a person was declared legally incapacitated, he lost the right to act in his name in all areas of his life. Moreover, under the law in force the person whose legal capacity could be restricted in future had no right to indicate how he wished his pecuniary or non-pecuniary rights to be dealt with after incapacitation. The existing law also lacked a means of guaranteeing that, after the person was declared incapacitated, his or her earlier wishes would be taken into account. The explanatory memorandum thus proposed that the existing law be amended by emphasising the need to individualise the measures of incapacitation so that they were fully justified ( visapusiškai pagrįstos ) and applied to each person ’ s particular situation. 47. As to the misgivings concerning the proceedings for limiting a person ’ s capacity, the Ministry of Justice noted that, should a person ’ s health improve, the same people who could ask for his incapacitation could then submit a request to restore his legal capacity (Article 2.10 §§ 2 and 4 of the Civil Code, see paragraph 33 above ). However, the incapacitated person could not apply to the court himself. Furthermore, no independent body had an obligation to periodically review the incapacitated person ’ s condition or ask the court to review the incapacitation decision. As a result, the existing legislation did not prevent situations where the guardian of the incapacitated person, abusing his or her rights or executing them improperly, failed to ask the court to declare the incapacitated person legally capable even if his health had improved. Moreover, there was no legal requirement for a court to review an incapacity decision if none of the people who could initiate incapacity proceedings had not asked for a review for a long time. Nor was it possible to ask for the decision to be reviewed by an independent body which monitors the incapacitated person ’ s state of health. As a result, the incapacitated person ’ s rights could be restricted for a disproportionately long time. 48. The Ministry of Justice further observed that under Article 465 of the Code of Civil Procedure, the request for a person ’ s incapacitation had to contain a description of the circumstances, including the mental illness which had left the person unable to understand the meaning of his actions or control them. It also had to contain a doctor ’ s report and other evidence about the person ’ s state of mind ( apie asmens psichinę būklę ). However, this definition of evidence was restrictive and narrow. 2. Legislative amendments in force from 1 January 2016 49. On the basis of the aforementioned proposals by the Ministry of Justice, on 26 March 2015 the Seimas adopted a number of legislative amendments relating to the protection of the rights of people with disabilities. They came into force on 1 January 2016, and are summarised below. (a) Civil Code 50. Article 2.10 of the Civil Code now provides that a person who cannot understand or control his actions in a particular area of his life because of psychological illness may be declared by the court as legally incapacitated in that area ( neveiksnus tam tikroje srityje ) by court decision. In that particular area the person must act through his guardian. The court must establish a definitive list stating in which areas the person is incapacitated. It must also restore legal capacity in those areas if his health improves. 51. A request to declare a person legally incapacitated in a certain area may be submitted by his spouse, parents or adult children, a care institution or a prosecutor, who may all request that the court restore legal capacity. Unlike previously, the Civil Code now provides that such requests for restoration of legal capacity may be lodged, no more than once per year, by the person declared legally incapacitated. 52. A request to restore a person ’ s legal capacity may also be lodged by the State [of Mind] of Incapacitated Persons ’ Review Commission ( Neveiksnių asmenų būklės peržiūrėjimo komisija ), a new independent body to be established in every municipality. It must review the incapacitated person ’ s state of mind on its own initiative, if no request has been lodged by the parties entitled to do so within a year of the incapacity decision. Furthermore, it must be impartial and work on the basis that restriction of legal capacity should be used as little as possible and measures for limiting legal capacity should be individualised and reasoned. When reviewing the person ’ s state of health, the Commission must hear his opinion, except where objective reasons make that impossible. When it has doubts over whether it is appropriate to apply to the court for restoration of legal capacity, all of those doubts should be interpreted for the benefit of the incapacitated person (Articles 2.10 and 2.10 1 ). 53. The Civil Code also extends the ability to restrict a person ’ s civil capacity in a particular area of his life ( fizinių asmenų civilinio veiksnumo apribojimas tam tikroje srityje ) to those with mental illnesses (Article 2.11). Accordingly, a person who, because of mental illness, may not understand or control his or her actions in a particular area, may be declared by a court to have limited active legal capacity in that area, where he may not act without the agreement of his curator. A request to declare a person partially legally restricted in a certain area may be submitted by his spouse, parents or adult children, a care institution or a prosecutor. They can also request the court to restore legal capacity. Unlike previously, the Civil Code now provides that a request to restore a person ’ s legal capacity may also be lodged by the person whose capacity was partially restricted. 54. The Civil Code was also supplemented by new Article 2.137 1, which concerns preliminary arrangements ( išankstinis nurodymas ). It provides that an adult may make preliminary arrangements about how his pecuniary or non-pecuniary rights will be managed, should he be declared incapacitated in a certain area or partially capacitated in another. In the preliminary arrangements the person may name a person he wishes the court to appoint as his guardian, express his intentions about where he will live in future, name a specific person to deal with any financial and non-financial matters, or make other arrangements. Such preliminary arrangements must be approved by a notary and take effect after the court decision regarding the person ’ s legal incapacity. From that point onwards, the preliminary arrangements are binding on everybody, unless the court decides that they are not in the incapacitated person ’ s interests. (b) Code of Civil Procedure 55. Article 465 now stipulates that an application for a person ’ s incapacitation in a certain area must contain a description of the circumstances, including the medical condition which has left him unable to understand or control his actions. A medical report and other evidence must be added to the application. It must also list the areas in which the person should be declared incapacitated. Unlike previously, the new element to be included is a conclusion by a social worker about the person ’ s ability to take care of his or her daily needs independently or with assistance in particular areas. 56. Article 467 § 6 now provides that when hearing a case for a person ’ s incapacity in a certain area, it is obligatory that the person concerned is represented by a lawyer. 57. In accordance with Article 469, the court may review an earlier incapacity decision at the request of, inter alia, the incapacitated person himself, should his health improve. In such proceedings the person ’ s lawyer must take part, and if he does not have a lawyer the court will order the Legal Aid Service to secure one. Should a court decide to maintain a decision that a person is incapable in certain areas, it must ex officio evaluate whether he needs help in other areas and suggest to him that he agrees to assistance in those areas. (c) Other legislative changes 58. The Law of Local Government ( Vietos savivaldos įstatymas ) was supplemented by adding “ ensuring a review of the state [ of mind ] of incapacitated persons ” ( neveiksnių asmenų būklės peržiūrėjimo užtikrinimas ) to the functions of local government (Article 7 § 37). 59. The Law on State Guaranteed Legal Aid Service was amended to stipulate that when a healthcare institution contacts the Legal Aid Service for legal aid to be provided to a mental health patient, the Legal Aid Service must adopt a decision the same day and familiarise the patient with it. It must also provide appropriate facilities to enable the patient and his lawyer to communicate (Article 22 ). C. Supreme Court guidance regarding incapacity and guardianship proceedings 1. Ruling of 11 September 2007 in civil case no. 3K-3-328/2007 60. In the above ruling, the Supreme Court noted that a person whose incapacity was requested was also a party to the proceedings (Article 464 § 1 of the Code of Civil Procedure ). As a result, he enjoyed the rights of an interested party, including the right to be duly informed of the time and place of any hearing. The fact that the incapacitation case was heard in the absence of D.L. – who did not open the door to anyone and thus did not accept correspondence – was assessed by the Supreme Court as a violation of her right to be duly informed of the time and place of hearing. It also found that by failing to hear the person concerned and without making sure that she had been aware of the proceedings, the first-instance court had breached the principle of equality of arms and her right to appeal against the incapacity decision, because it had not been served on her. The Supreme Court also referred to Principle no. 13 of Recommendation No. R( 99)4 by the Committee of Ministers of the Council of Europe (see paragraph 6 8 below), stating that a person has the right to be heard in any proceedings which could affect his legal capacity. This procedural guarantee should be applicable to the fullest extent possible, at the same time bearing in mind the requirements of Article 6 of the European Convention on Human Rights. In this regard, the Supreme Court also referred to the Court ’ s case-law to the effect that mental illness could result in appropriate restrictions of a person ’ s right to a fair hearing. However, such measures should not affect the very essence of that right ( the Supreme Court relied on Winterwerp v. the Netherlands, 24 October 1979, § 60, Series A no. 33, and Lacárcel Menéndez v. Spain, no. 41745/02, § 31, 15 June 2006 ). 61. In the same ruling, the Supreme Court also emphasised that determining whether a person can understand his or her actions was not only a scientific conclusion for forensic psychiatry, but also a question of fact which should be decided by the court on assessing all the other evidence and, if necessary, hearing expert evidence. Taking into consideration the fact that a declaration of incapacity entailed very serious interference with a person ’ s right to respect for his private life, it could only be made in exceptional circumstances. 2. Ruling of 11 July 2008 in civil case no. 3K-3-370/2008 62. In that ruling, the Supreme Court reiterated the Court ’ s case-law to the effect that depriving a person of legal capacity entailed serious restrictions on his rights under Article 8 of the Convention. Very weighty reasons therefore had to be given for incapacitation (the Supreme Court referred to Matter v. Slovakia, no. 31534/96, § 68, 5 July 1999). It drew attention to the fact that different degrees of incapacity may exist, and that it may vary from time to time. Full restriction of legal capacity should therefore not be an unavoidable result when protecting the rights of the mentally disabled. The Supreme Court established two criteria to be observed: medical, the mental illness or disorder, recognised by a forensic psychiatric examination report and legal, the inability to understand and control one ’ s actions because of the mental illness. Both criteria were essential and of equal importance to each case regarding someone ’ s incapacitation. The Supreme Court emphasised that the question of establishing incapacity could not be examined in a purely formalistic way, simply following the medical criteria established in the expert ’ s conclusion and considering it to be sufficient grounds for finding someone incapable (the Supreme Court relied on Shtukaturov v. Russia, no. 44009/05, ECHR 2008). Moreover, the medical expert report as to the mental capacity of the person did not bind the court. 63. In the same ruling, the Supreme Court underlined that under Article 2.10 of the Civil Code, legal incapacitation entailed a very serious restriction on a person ’ s right to respect for his private life, because he would become completely dependent on his guardian for an indefinite period of time. Legal status could only be reviewed on the initiative of the person ’ s guardian or others, but not on the initiative of the incapacitated person. For that reason, fairness of the incapacitation proceedings was crucial. The Supreme Court also observed that under Article 464 of the Code of Civil Procedure, a person whose incapacitation was at issue should be present at the hearing where his incapacitation is being decided, unless medical experts have deemed his participation impossible because of his or her state of mind. 3. Ruling of 23 March 2012 in civil case no. 3K-3-166/2012 64. In that ruling, the Supreme Court observed that incapacitation stripped a person of all his rights, including the right to marry, vote, deal with his assets and choose where to live; in fact, it eliminated him from society. For that reason, it was vital to give priority to defending the rights of the vulnerable using all means possible during incapacitation proceedings. The Supreme Court once again reiterated that in order to justify full incapacitation, the mental disorder must be “ of a kind and degree ” warranting such a measure. 65. In that particular case, the Supreme Court found that the question of legal capacity had only been examined at one level of jurisdiction, which was not sufficient to protect the incapacitated person ’ s interests. Moreover, when assessing fairness of proceedings, the entire proceedings, including the appellate stage, counted. In the circumstances of the case, the legally incapacitated person first appealed against the first - instance court ’ s decision to incapacitate her. Later she withdrew her appeal, an application which the appellate court had quickly accepted. The Supreme Court found that without holding a hearing and examining whether the plaintiff truly wished to terminate the court proceedings (and with information that she actually objected to her incapacitation), the appellate court had failed to take into account the importance of the issue at stake for her, and had thus breached her right to a fair hearing and the principle that priority must be given to the protection of the rights of the vulnerable. The Supreme Court referred to, inter alia, the Convention on the Rights of Persons with Disabilities, Article 12 of which reads that the disabled shall be provided with the support they may require in exercising their legal capacity. 66. Lastly, in that case the incapacitated person ’ s guardian submitted a written request to the Supreme Court, arguing that she was the only person who could legally represent the incapacitated person. She requested that the court dismiss the incapacitated person ’ s appeal on points of law. The Supreme Court dismissed that request. D. Other relevant domestic law 67. The Code of Civil Procedure provided at the material time that a court decision could be appealed against within thirty days. If there was a valid reason for missing that deadline, a request to extend the time - limit could be submitted within six months of the decision of the first-instance court (Article 307). Proceedings could be reopened if, for example, the court had ruled on the rights and obligations of a person not party to those proceedings. Such a request had to be submitted to the court within three months of the date the person learned of the grounds for reopening the proceedings, but no later than five years from the date the decision was adopted (Articles 365-368). III. RELEVANT INTERNATIONAL MATERIALS 68. Recommendation No. R( 99)4 of the Committee of Ministers of the Council of Europe on principles concerning the legal protection of incapable adults was adopted on 23 February 1999. The relevant parts read as follows: 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 proportional 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 7 – Procedural fairness and efficiency “1. There should be fair and efficient procedures for the taking of measures for the protection of incapable adults. 2. There should be adequate procedural safeguards to protect the human rights of the persons concerned and to prevent possible abuses.” Principle 11 – Institution of proceedings “1. The list of those entitled to institute proceedings for the taking of measures for the protection of incapable adults should be sufficiently wide to ensure that measures of protection can be considered in all cases where they are necessary. It may, in particular, be necessary to provide for proceedings to be initiated by a public official or body, or by the court or other competent authority on its own motion. 2. The person concerned should be informed promptly in a language, or by other means, which he or she understands of the institution of proceedings which could affect his or her legal capacity, the exercise of his or her rights or his or her interests unless such information would be manifestly without meaning to the person concerned or would present a severe danger to the health of the person concerned.” Principle 12 – Investigation and assessment “1. There should be adequate procedures for the investigation and assessment of the adult ’ s personal faculties. 2. No measure of protection which restricts the legal capacity of an incapable adult should be taken unless the person taking the measure has seen the adult or is personally satisfied as to the adult ’ s condition and an up-to-date report from at least one suitably qualified expert has been submitted. The report should be in writing or recorded in writing. ” 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. 2. Measures of protection should be reviewed on a change of circumstances and, in particular, on a change in the adult ’ s condition. They should be terminated if the conditions for them are no longer fulfilled. 3. There should be adequate rights of appeal.” 69. The United Nations Convention on the Rights of Persons with Disabilities was ratified by the Republic of Lithuania on 27 May 2010, where it entered in force on 17 September 2010. The relevant parts read as follows: 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. 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.” 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.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 70. Without relying on any particular provision of the Convention, the applicant complained about the fairness of his incapacitation proceedings. 71. The Court considers that the complaint falls to be examined under Article 6 § 1 of the Convention. The relevant part reads as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal...” A. Admissibility 1. Submissions by the parties (a) The Government ( i ) Six-month rule 72. The Government firstly noted that the decision to declare the applicant legally incapacitated had been adopted on 31 January 2007. However, he had only lodged his application with the Court on 28 March 2008, nearly a year and two months later. The Government admitted that they did not have information to determine if or when the applicant had received the decision regarding his incapacitation. It could only be presumed that his mother, later appointed as his guardian, had informed him of that decision. In any case, it was completely clear that the applicant had found out about the decision on 9 March 2007, as he had referred to it himself in his request to be provided with legal aid on 26 November 2008 (see paragraph 24 above). On the basis of an extract from the applicant ’ s medical records (see paragraph 22 above), the Government argued that on 15 March 2007 the treating doctor had given him a copy of the Šiauliai District Court ’ s decision of 13 March 2007, and in the later decision it had been clearly indicated that he had been declared legally incapable by the Akmenė District Court on 31 January 2007. For the Government, the six ‑ month time-limit had therefore started running from at least 15 March 2007. They also noted the applicant ’ s letter to the Akmenė District Court, in which he had stated that he had seen the prosecutor ’ s request to have him declared incapacitated (see paragraph 18 above). The applicant, however, had not taken any action for nearly a year and a half, within either the domestic system or the international system. The Government were also of the view that the alleged violation of the applicant ’ s rights could not be considered to be of a continuous nature. (ii) Exhaustion of domestic remedies 73. The Government further maintained that the applicant had failed to exhaust the available domestic remedies. Firstly, he had missed the thirty ‑ day time-limit to appeal against the Akmenė District Court ’ s decision of 31 January 2007, as well as the six-month time-limit to extend the time ‑ limit for lodging an appeal, if there had been valid reasons for missing the thirty - day time-limit ( see paragraph 67 above ). Nor had he given any valid reasons why any of those time-limits had been missed. It was therefore reasonable for the Legal Aid Service to have concluded that the appeal against the decision to incapacitate him had had no prospects. The Government also deemed it appropriate to note that in his request for legal aid the applicant had asked the Legal Aid Service to appeal against the aforementioned incapacity decision and had requested that the court extend the missed time-limit for lodging an appeal. However, he had not requested a reopening of the civil proceedings ( atnaujinti procesą ) regarding his legal incapacity, which was a different legal avenue (see paragraph 67 above ). Lastly, he had not challenged before the administrative courts the Legal Aid Service ’ s refusal to assist him either. (b) The applicant 74. The applicant submitted that he had not known about the incapacitation decision of 31 January 2007 or the decision of 6 March 2007 to appoint his mother as his guardian, because he had not taken part in those proceedings. He admitted that he had been “ shown” both decisions by a doctor on 9 March 2007, when he had been taken to the Šiauliai Psychiatric Hospital. Until then, no one had informed him about the proceedings regarding his legal incapacitation. He had not been present at either of the hearings himself, and had not even known when they had taken place. 75. Lastly, the applicant submitted that his mother would not give him the decisions, and that on 16 December 2008 the Akmenė District Court had refused to give him a copy of the decision regarding his legal incapacity. The applicant also pointed out that on 31 December 2008 the Legal Aid Service had denied his request for legal assistance in connection with the incapacitation proceedings. 2. The Court ’ s assessment ( a ) Six-month rule 76. The Court reiterates that the six-month rule is autonomous and must be construed and applied to the facts of each individual case, so as to ensure effective exercise of the right of individual petition (see, among many other authorities, Büyükdağ v. Turkey ( dec. ), no. 28340/95, 6 April 2000; Fernández -Molina González and Others v. Spain ( dec. ), nos. 64359/01 and others, ECHR 2002 IX (extracts); and Zakrzewska v. Poland, no. 49927/06, § 55, 16 December 2008 ). While taking account of domestic law and practice is an important aspect, it is not decisive in determining the starting point of the six-month period ( see Sabri Güneş v. Turkey [GC], no. 27396/06, §§ 52 and 55, 29 June 2012 ). 77. The Court points out that the six-month period cannot start to run until the applicant has effective and sufficient knowledge of the final domestic decision. Furthermore, it is for the State relying on the failure to comply with the six-month time-limit to establish the date the applicant became aware of that decision (see Baghli v. France, no. 34374/97, § 31, ECHR 1999 ‑ VIII, and more recently, Sgaibă v. Romania ( dec. ), no. 6005/05, § 25, 27 January 2015). 78. In the instant case, the Court firstly observes that the Government did not deny that the Akmenė District Court decision had never been served on the applicant, but maintained that it had been sent to the applicant ’ s mother. Be that as it may, service on the applicant ’ s mother in the particular circumstances of this case is not sufficient, for it was precisely on her initiative that the applicant was declared legally incapacitated. Moreover, given that no appeal was ever lodged against the 31 January 2007 decision, it is clear that the mother agreed with it. 79. The Court does not lose sight of the applicant ’ s statement that he had been “shown” the Akmenė District Court decisions of 31 January and 6 March 2007 regarding his legal incapacitation and the appointment of his legal guardian when he was placed in the Šiauliai Psychiatric Hospital on 9 March 2007 (see paragraphs 24 and 74 above ). That notwithstanding, nothing in the case file indicates that those two decisions were in fact handed over to him. Moreover, it is not unreasonable to state that his mental illness, which had become more serious by that time, made it difficult for him to understand those decisions (see paragraph 20 above). The Court has also carefully scrutinised his medical records, relied on by the Government. It is however unable to find in those records an indication to the effect that either of the two decisions were given to the applicant on 15 March 2007 (see paragraph 22 above). 80. Lastly, the Court refers, on the one hand, to its settled case-law stating that the applicant must show due diligence in obtaining a copy of the decision deposited with the court ’ s registry (see Mıtlık Ölmez and Yıldız Ölmez v. Turkey ( dec. ), no. 39464/98, 1 February 2005 ). On the other hand, and whilst noting that the UN Convention on the Rights of Persons with Disabilities was not in force in respect of Lithuania at the relevant time, the Court nevertheless stresses the State ’ s obligation to help to ensure that disabled people have effective access to justice (see Article 13 of that Convention, paragraph 6 9 above). Accordingly, it is somewhat struck by the Akmenė District Court ’ s letter to the applicant of 16 November 2008, informing him that the rulings regarding his legal incapacity and guardianship would not be given to him (see paragraph 29 above). Clearly, they were not without meaning to the applicant, nor did knowing their content present any danger to him (see, mutatis mutandis, Principle 11 of Recommendation No. R( 99)4, cited in paragraph 6 8 above). 81. In these circumstances and in the absence of any irrefutable evidence showing that the knowledge which the applicant presumably had about the Akmenė District Court ’ s decision regarding his legal incapacitation was effective and sufficient (see Papachelas v. Greece [GC], no. 31423/96, § 30, ECHR 1999-II), the Government ’ s preliminary objection that the application was lodged outside the six-month period must be dismissed. (b) Exhaustion of domestic remedies 82. In the particular circumstances of the case, the Court considers that the Government ’ s objections as to the applicant ’ s failure to exhaust domestic remedies is intrinsically linked to his complaint that he did not have a fair hearing when the matter of his legal capacity was decided. These objections should therefore be joined to the merits. (c) Conclusion 83. The Court also finds that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. Submissions by the parties (a) The applicant 84. The applicant complained about the lack of involvement in the proceedings regarding his incapacitation. As a result of those proceedings, however, he had been deprived of all of his “ human and civil ” rights and, in his words, had had no right to appeal to any court on any grounds. He also complained of a lack of assistance on the part of the Akmenė District Court, which had refused to give him a copy of his incapacitation decision, and the Legal Aid Service, which had not supported him when he had attempted to have his legal capacity restored. Another example of this lack of effective access to justice was his forced hospitalisation on 13 March 2007, when a lawyer he had never met had “ represented ” him during the hearing of that day at the Šiauliai District Court. He argued that the lawyer had in fact represented the interests of the Šiauliai Psychiatric Hospital, which earlier that day had asked the Legal Aid Service to secure a lawyer. It was not the practice of the Šiauliai Psychiatric Hospital for a person who was treated there to have a lawyer to represent his interests. (b) The Government 85. The Government argued that the proceedings before the Akmenė District Court for the applicant ’ s legal incapacitation had been fair. The court had firstly assigned a forensic expert to determine whether the applicant ’ s mental health allowed his participation in the proceedings. Notwithstanding the experts ’ negative answer, the court attempted to secure the applicant ’ s appearance at the hearing, having summoned him. Four attempts to serve that summons had failed because the applicant had not opened the door of his apartment. 86. The Government also submitted that the aim of the applicant ’ s legal incapacitation proceedings had been to protect his interests, for he had been in need of constant care and help from others. Accordingly, his mother and the prosecutor, who had been protecting the public interest, had taken part in the court hearing on 31 January 2007, after social services had consented to the incapacitation proposal and asked the court to hear the case in their absence. The applicant ’ s mother had been questioned and had described the applicant ’ s state of health and expressed concern for his life. In this connection, the Government also noted that under Article 464 of the Code of Civil Procedure, the court was allowed to decide the case without the person subject to the incapacitation proceedings, if he could not be present for objective reasons (see paragraph 34 in fine above). 87. The Government admitted that the Legal Aid Service had refused to provide free legal aid to appeal against the decisions of 31 January and 6 March 2007. However, there had been valid reasons for this (see paragraph 73 above). Lastly, the Government did not have any information that there would be a conflict of interests between the applicant and his mother. 2. The Court ’ s assessment (a) General principles 88. In most of the previous cases before the Court involving “persons of unsound mind”, the domestic proceedings concerned their detention and were thus examined under Article 5 of the Convention. However, the Court has consistently held that the “procedural” guarantees under Article 5 §§ 1 and 4 are broadly similar to those under Article 6 § 1 of the Convention (see Stanev v. Bulgaria [GC], no. 36760/06, § 232, ECHR 2012 and the case-law cited therein). In deciding whether the proceedings in the present case for the reopening of the guardianship appointment were “fair”, the Court will therefore have regard, mutatis mutandis, to its case-law under Article 5 § 1 (e) and Article 5 § 4 of the Convention (see D.D. v. Lithuania, no. 13469/06, § 116, 14 February 2012 ). 89. In the context of Article 6 § 1 of the Convention, the Court accepts that in cases involving a mentally-ill person the domestic courts should also enjoy a certain margin of appreciation. Thus, for example, they can make appropriate procedural arrangements in order to secure the good administration of justice, protection of the health of the person concerned, and so forth (see Shtukaturov v. Russia, no. 44009/05, § 68, ECHR 2008 ). 90. The Court accepts that there may be situations where a person deprived of legal capacity is entirely unable to express a coherent view. It considers, however, that in many cases the fact that an individual has to be placed under guardianship because he lacks the ability to administer his affairs does not mean that he is incapable of expressing a view on his situation. In such cases, it is essential that the person concerned should have access to court and the opportunity to be heard either in person or, where necessary, through some form of representation. Mental illness may entail restricting or modifying the manner of exercise of such a right, but it cannot justify impairing the very essence of the right, except in very exceptional circumstances, such as those mentioned above. Indeed, special procedural safeguards may prove called for in order to protect the interests of persons who, on account of their mental health issues, are not fully capable of acting for themselves (see D.D. v. Lithuania, cited above, § 118). 91. The Court also reiterates that there is the importance of ensuring the appearance of the fair administration of justice and a party to civil proceedings must be able to participate effectively, inter alia, by being able to put forward the matters in support of his or her claims. Here, as with other aspects of Article 6, the seriousness of what is at stake for the applicant will be of relevance to assessing the adequacy and fairness of the procedures (see P., C. and S. v. the United Kingdom, no. 56547/00, § 91, ECHR 2002-VI). (b) Application to the present case 92. The Court firstly turns to the question of whether the applicant was aware of his incapacitation proceedings, so that he could effectively take part in them. Looking at the proceedings in a chronological order, it observes that there is nothing in the medical expert report of 8 January 2007 to conclude that when examined the applicant, who had been seen regularly by psychiatrists since 1990, was clearly informed or realised that this time it was his legal capacity at stake (see paragraph 13 above; see also Shtukaturov, cited above, § § 15 and 69). 93. The Court also has regard to the fact that the Akmenė District Court took efforts proprio motu to notify the applicant about the proceedings, but on 23, 24, 25 and 30 January the summons was not delivered because the applicant did not open the door of his apartment (see paragraph 15 above). Moreover, the Court accepts that the applicant should have learned about the incapacitation proceedings on at least 30 January 2007, when, in his words, he had found the prosecutor ’ s request for his incapacitation (see paragraph 18 above). Be that as it may, the Akmenė District Court ruled on the issue already the following day, and there is nothing to indicate that the applicant ’ s written plea of 5 February 2007 received any reaction from the court. The Court therefore concludes that the applicant did not participate in the 31 January 2007 hearing before the Akmenė District Court in any form. It remains to be ascertained whether, in the circumstances, this was compatible with Article 6 of the Convention. 94. The Government argued that the decisions taken by the national judge had been lawful in domestic terms. However, the crux of the complaint is not the domestic legality but the “fairness” of the proceedings from the standpoint of the Convention and the Court ’ s case-law. 95. In a number of previous cases (concerning compulsory confinement in a psychiatric hospital) the Court confirmed that a person of unsound mind must be allowed to be heard either in person or, where necessary, through some form of representation ( see, for example, Winterwerp v. the Netherlands, 24 October 1979, § 60, Series A no. 33 ). In Winterwerp, the applicant ’ s freedom was at stake. However, in the present case the outcome of the proceedings was at least equally important for the applicant: his personal autonomy in almost all areas of his life was in issue (see paragraph 119 below). 96. The applicant was indeed an individual with a history of psychiatric troubles. From the case material, however, it appears that despite his mental illness, he had been a relatively independent person. Indeed, and despite his suicide attempts in 2004 and 2006, for most of the time he lived alone, and could apparently take care of himself. Furthermore, the Court notes that the applicant played a double role in the proceedings: he was an interested party, and, at the same time, the main object of the court ’ s examination. His participation was therefore necessary, not only to enable him to present his own case, but also to allow the judge to have at least brief visual contact with him, and preferably question him to form a personal opinion about his mental capacity (see Shtukaturov, cited above, § 72). Given that the potential finding of the applicant being of unsound mind was, by its very nature, largely based on his personality, his statements would have been an important part of his presentation of his case (see D.D. v. Lithuania. , cited above, § 120; see also Principle 13 of the Recommendation No. R (99) 4 by the Council of Europe ). 97. The Court has already acknowledged the Akmenė District Court ’ s attempts to summons the applicant (see paragraph 93 above). Given that the attempts to secure his presence by sending a summons to his address failed for reasons beyond the district court ’ s control, it remains to be seen whether his absence could have been compensated for by other means, or through some form of representation. 98. The Court has examined the Government ’ s argument that the applicant ’ s mother and the prosecutor attended the 31 January 2007 court hearing on the merits. However, and without doubting their good intentions, in the Court ’ s opinion their presence did not make the proceedings truly adversarial. Indeed, whilst by law the prosecutor was performing the function of defending the public interest, there was no one at the court hearing who could, on the applicant ’ s behalf, rebut the arguments or conclusions by his mother or the prosecutor. For the Court, taking into account the principle of procedural fairness (see Principle 7 in paragraph 68 above), it would have been appropriate for Akmenė District social services to pay more attention to the merits of the applicant ’ s case. However, their involvement was restricted to a simple indication of the word “ agree ” in their response to the prosecutors ’ request, as sent to the Akmenė District Court (see paragraph 14 above), without providing a more elaborate or comprehensive response. In this connection, the Court also draws particular attention to the new Lithuanian legislation which requires social workers to provide what appears to be a very specific conclusion as to the person ’ s capacity or incapacity to act in particular areas ( see paragraph 55 above ). The Court also notes that after legislative changes in 2015 the State [of Mind] of Incapacitated Persons ’ Review Commission, which has a very specific role of monitoring people with disabilities in order to protect their rights, was brought into Lithuanian legislation (see paragraph 52 above), thus making the current legal background substantially different from that which existed in 2007, when the applicant ’ s case was decided by the Akmenė District Court. The lack of any meaningful involvement on the part of social services in the applicant ’ s case, especially in view of the clear European standards that in 2007 already existed and that prompted amendments to Lithuanian legislation in order to rectify the shortcomings of the legislation applicable at the material time (see paragraphs 44, 68 and 69 above), leads the Court to conclude that his interests at the Akmenė District Court were not represented to make the proceedings fair in any form. 99. Furthermore, it transpires from the Akmenė District Court decision of 31 January 2007 that the court ruled exclusively on the basis of the psychiatric report without summoning the medical expert who wrote it for questioning (see D.D. v. Lithuania, cited above, § 120 ). Furthermore, that medical expert report to the effect that the applicant could not take care of himself appears to be based on an account by the applicant ’ s mother, without there being any proof that those circumstances had been verified by the State or municipal authorities themselves. Similarly, the Court observes that the Akmenė District Court did not call anyone else as a witness so that more light could be shed on the applicant ’ s state of health (see paragraph 62 above). 100. Lastly, the Court notes that it must always assess the proceedings as a whole, including the decision of the appellate court (see C.G. v. the United Kingdom, no. 43373/98, § 35, 19 December 2001). It also considers that the principle that particular attention must be given to the protection of the rights of the vulnerable extends to appeal proceedings. The Lithuanian Supreme Court clearly shared the view that rights of persons with disabilities had to be guaranteed at all stages of court proceedings (see paragraph 65 above). The Court has also held that the right to request that a court review a declaration of incapacity is one of the most important rights for the person concerned (see Kędzior v. Poland, no. 45026/07, § 89, 16 October 2012). 101. In the present case, the Court points out that the applicant contacted the Legal Aid Service with a request to appeal against his incapacity decision and the decision to appoint a legal guardian. The Court reiterates its earlier finding that the decision of 31 March 2007 was never handed over to the applicant (see paragraphs 79 -81 above). Accordingly, he may not be blamed for not appealing against that decision within thirty days, or for asking to extend the time - limit for appeal within six months of the date the incapacity decision was adopted. In this connection, it is also relevant that for the period of 9 March to 22 June 2007 the applicant was in the Šiauliai Psychiatric Hospital, where, this not having been disputed by the Government, he had no access to a lawyer. Against this background, and whilst accepting that by the time the applicant contacted the Legal Aid Service on 26 November 2008 the time-limits of thirty days and six months had already expired, the Court can only hold that the Legal Aid Service ’ s response was purely formalistic and limited to the question of time-limits which, in their view, the applicant had to observe (see paragraphs 25 and 26 above; also see paragraph 73 above regarding the Government ’ s suggestion about another legal avenue theoretically available to the applicant). 102. The Court reiterates that the applicant was a person suffering from mental illness, a factor which militated in favour of the State employing measures to help him to ensure effective access to justice (see Article 13 of the UN Convention on the Rights of Persons with Disabilities, paragraph 69 above). Accordingly, and given the complexity of the legal issues at stake, the Court cannot share the Government ’ s view that in his plea to the Legal Aid Service the applicant should have specified the request to reopen civil proceedings as the appropriate legal avenue, whereas in fact he only asked to extend the time-limit to lodge an appeal against the 31 January 2007 decision (see paragraphs 24 and 73 above). To require him to have such an understanding of the law would be plainly disproportionate. The Court also is mindful of the fact that at the material time the applicant, once declared incapacitated, had no legal standing and thus could not bring any court action himself, including against the Legal Aid Service. In the light of the foregoing considerations, the Court dismisses the Government ’ s preliminary objection of failure to exhaust domestic remedies (see paragraph 73 above). 103. As to the quality of legal assistance received by the applicant from the Lithuanian authorities, the Court lastly gives weight to his statement that during the proceedings for his forced hospitalisation the lawyer appointed by the Legal Aid Service “ represented ” him without even having seen or talked to him (see paragraphs 21 and 84 above). The Court nevertheless notes legislative changes that are a precondition for such practice to become extinct in future. Accordingly, from 1 January 2016 the Legal Aid Service are required by law to provide appropriate facilities to enable patients and their lawyers to communicate (see paragraph 59 above), which seems particularly relevant where a person is being held in isolation in a psychiatric hospital, as was the situation in the instant case. 104. In view of the above considerations, the Court holds that at the material time the regulatory framework for depriving people like the applicant of their legal capacity did not provide the necessary safeguards. The Court will revert further to this matter in the context of the applicant ’ s complaint under Article 8 of the Convention. 105. The Court also concludes that the applicant was deprived of a clear, practical and effective opportunity to have access to court in connection with his incapacitation proceedings, and particularly in respect of his request to restore his legal capacity (see Kędzior, cited above, § 90 ). There has, accordingly, been a violation of Article 6 § 1 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 106. The applicant complained that by depriving him of his legal capacity, the authorities had stripped him of his right to private life. 107. The Court considers that the complaint falls to be examined under Article 8 of the Convention. The relevant part 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. Submissions by the parties 108. The applicant argued that he was conscientious, lived a normal life alone and took proper care of himself. That notwithstanding, because of his legal status as an incapacitated person, he had been effectively barred from taking part in community life and developing relationships with anyone of his choosing. In particular, he could not find a job, take part in elections, get married, enter into legal transactions or even draw up a will. His situation was exacerbated by the fact that, in accordance with Article 2.10 of the Civil Code, a request to restore legal capacity could only be lodged by a person ’ s family members, a care institution or a prosecutor. However, he had been prevented from directly applying to a court for restoration of his legal capacity. An incapacitated person had to rely on the good will of others, but not on objective factors such as improvement of health. This was impossible in the applicant ’ s case, because his mother considered him to be mentally ill, whereas he was healthy. 109. The Government accepted that the applicant ’ s incapacitation could be considered to be an interference with his right to respect for his private life. However, that interference had a basis in domestic law and was aimed at protecting his interests. Lastly, and given that his mental illness had worsened to such a level that he had become a danger to himself, as illustrated by his attempts to commit suicide, the interference was necessary and proportionate. 110. For the Government, it was also important that the Akmenė District Court ’ s decision to declare the applicant legally incapacitated had been based on his state of health. However, in compliance with Article 469 of the Code of Civil Procedure, where a person ’ s health improves considerably, the question of legal capacity could be examined again. According to the established practice of the courts, a person could initiate a review of his capacity by asking his guardian, care institution or a prosecutor to start proceedings to change his status. He could also submit a request to be provided with “ secondary ” legal aid himself. That notwithstanding, the Government had no information that the applicant had ever complained of a conflict of interests between him and his mother. B. The Court ’ s assessment 1. Admissibility 111. The Court has held that deprivation of legal capacity undeniably constitutes a serious interference with the right to respect for a person ’ s private life protected under Article 8 (see, for example, Matter v. Slovakia, no. 31534/96, § 68, 5 July 1999). It reiterates that Article 8 secures to the individual a sphere within which he or she can freely pursue the development and fulfilment of his personality (see Smirnova v. Russia, nos. 46133/99 and 48183/99, § 95, ECHR 2003 ‑ IX (extracts) ). It has not been disputed by the Government that the Akmenė District Court ’ s decision of 31 January 2007 deprived the applicant of his capacity to act independently in almost all areas of his life : at the relevant time he was no longer able to sell or buy any property on his own, work, choose a place of residence, marry, or bring a court action in Lithuania. The Court cannot but hold that the deprivation of legal capacity thus amounted to an interference with his right to respect for his private life (see Shtukaturov, cited above, § 83). 112. The Court further notes that this complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 of the Convention, and that it is not inadmissible on any other grounds. It must therefore be declared admissible. 2. Merits 113. The Court reiterates that any interference with an individual ’ s right to respect for his private life will constitute a breach of Article 8 unless it was “in accordance with the law”, pursued a legitimate aim or aims under Article 8 § 2 and was “necessary in a democratic society” in the sense that it was proportionate to the aims sought. 114. In the instant case, the Court acknowledges that the applicant ’ s incapacitation proceedings had a legal basis, namely Article 2.10 of the Civil Code, Article 19 of the Law on Prosecution Service and Article 46 5 of the Code of Civil Procedure ( see paragraphs 11 and 16 above ). The Court also has no reason to doubt that the measure was taken in the applicant ’ s interests. 115. It remains to be examined whether the applicant ’ s legal incapacitation was necessary and proportionate. (a) General principles 116. The applicant claimed that his full incapacitation had been an inadequate response to the problems he had experienced. Indeed, under Article 8 of the Convention the authorities had to strike a fair balance between the interests of a person of unsound mind and the other legitimate interests concerned. However, as a rule, in such a complex matter as determining somebody ’ s mental capacity, the authorities should enjoy a wide margin of appreciation (also see paragraph 125 below). This is mostly explained by the fact that the national authorities have the benefit of direct contact with the people concerned and are therefore particularly well placed to determine such issues. The task of the Court is rather to review under the Convention the decisions taken by the national authorities in the exercise of their powers in this respect (see Shtukaturov, cited above, § 87). 117. At the same time, the margin of appreciation to be accorded to the competent national authorities will vary in accordance with the nature of the issues and the importance of the interests at stake. A stricter scrutiny is called for in respect of very serious limitations in the sphere of private life ( ibid., § 88). 118. Furthermore, the Court reiterates that whilst Article 8 of the Convention contains no explicit procedural requirements, the decision ‑ making process involved in measures of interference must be fair and such as to ensure due respect of the interests safeguarded by Article 8 (see Görgülü v. Germany, no. 74969/01, § 52, 26 February 2004). The extent of the State ’ s margin of appreciation thus depends on the quality of the decision-making process. If the procedure was seriously deficient in some respect, the conclusions of the domestic authorities are more open to criticism (see Shtukaturov, cited above, § 89 ). (b) Application to the present case 119. The Court firstly notes that the interference with the applicant ’ s right to respect for his private life was very serious. As a result of his incapacitation, he became fully dependent on his mother as his guardian in almost all areas of his life, and this was clearly recognised by the Lithuanian Supreme Court (see paragraphs 61-64 above). 120. The Court has already found that the proceedings before the Akmenė District Court did not give the judge an opportunity to examine the applicant in person. In such circumstances, it cannot be said that the judge had the benefit of direct contact with the person concerned, which would normally call for judicial restraint on the part of the Court. Furthermore, the applicant ’ s incapacitation proceedings ended at one level of jurisdiction, his participation in that decision-making process being reduced to nothing. 121. Turning to the Akmenė District Court ’ s decision of 31 January 2007, the Court observes that it essentially relied on two pieces of evidence − the forensic expert report and the testimony of the applicant ’ s mother. The Court admits that the effect of the applicant ’ s illness on his social life, health and pecuniary interests was depicted more clearly by his mother, who stated that her son had recently lived apart, but could no longer take care of himself, did not go out or take medication, and would not pay maintenance fees for his apartment (see paragraphs 10 and 16 above ). 122. Because of the complexity of such an assessment and the special knowledge it requires, the Court finds that it was certainly correct that the Akmenė District Court sought to obtain an expert opinion on the applicant ’ s mental health, as it had been instructed by Article 464 of Code of Civil Procedure (see paragraph 34 above). That report, however, mainly referred to the applicant ’ s suffering from schizophrenia and his ensuing mistrust and feelings of persecution, without explaining what kind of actions, except for his inability to take part in the court proceedings, he was capable of understanding or controlling. It is true that the expert referred to the applicant ’ s inability to take care of his daily needs. However, that was more of a narrative of his mother ’ s opinion than an independent analysis by the psychiatrist. 123. The Court does not cast doubt on the competence of the doctor who examined the applicant and accepts that the latter was seriously ill. However, the existence of a mental disorder, even a serious one, cannot be the sole reason to justify full incapacitation. By analogy with the cases concerning deprivation of liberty, in order to justify full incapacitation the mental disorder must be “of a kind or degree” warranting such a measure (see Shtukaturov, cited above, § 94; also see the Lithuanian Supreme Court ’ s analogous conclusion in paragraph 62 above ). However, the questions to the doctor, as formulated by the judge, did not concern “the kind and degree” of the applicant ’ s mental illness (see paragraph 12 above). As a result, the report of 8 January 2007 did not analyse the degree of his incapacity in sufficient detail. 124. It transpires that the existing legislative framework did not leave the Akmenė District Court any other choice. In case of mental illness, Article 2.10 of the Lithuanian Civil Code at that time distinguished only between full capacity and full incapacity, but did not provide for any “borderline” situation other than for drug or alcohol addicts (see paragraph 33 above). At this juncture, the Court considers that where a measure of protection is necessary it should be proportionate to the degree of capacity of the person concerned and tailored to his individual circumstances and needs ( see Principle 6 of Recommendation No. R( 99)4, paragraph 68 above). Contrary to this standard, Lithuanian legislation did not provide for a tailor-made response. The Court thus finds that the guardianship regime was not geared to the applicant ’ s individual case but entailed restrictions automatically imposed on anyone who had been declared incapable by a court. This conclusion is further confirmed by the latest legislative changes and, in particular, the explanatory memorandum by the Ministry of Justice, wherein the flaws of the former legal regulation were pointed. Partial incapacity was thus introduced to Lithuanian legislation on 1 January 2016 (see paragraphs 44 et seq. above). 125. The Court reiterates its view that the authorities in principle have broad discretion in determining a person ’ s mental capacity (see paragraph 116 above). However when restrictions on the fundamental rights apply to a particularly vulnerable group in society that has suffered considerable discrimination in the past, the Court has also held that then the State ’ s margin of appreciation is substantially narrower and must have very weighty reasons for the restrictions in question. 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. In the past, the Court has identified a number of such vulnerable groups that suffered different treatment, persons with mental disabilities being one of them (see Alajos Kiss v. Hungary, no. 38832/06, § 42, 20 May 2010, and Kiyutin v. Russia, no. 2700/10, § 63, ECHR 2011). 126. The applicant has put much emphasis on the fact that he was unable to himself request that the court lift his legal incapacity. Indeed, the applicant ’ s incapacitation, which applied for an indefinite period, at the material time could not have been challenged other than by his guardian, on whose initiative the applicant was incapacitated, a care institution, whose involvement in the applicant ’ s case the Court has already found to be lacking (see paragraph 98 above), or a public prosecutor. The Court has already held, in respect of partially incapacitated individuals, that given the trends emerging in national legislation and the relevant international instruments, Article 6 § 1 of the Convention must be interpreted as guaranteeing a person, in principle, direct access to a court to seek restoration of his or her legal capacity (see Stanev, cited above, § 245). In the latter judgment the Court observed that eighteen of the twenty national legal systems studied in 2011 provided for direct access to the courts for any partially incapacitated individuals wishing to have their status reviewed. In seventeen States such access was open even to those declared fully incapable ( ibid., §§ 95 and 243). This indicates that there is now a trend at European level towards granting legally incapacitated individuals direct access to the courts to seek restoration of their capacity. The Court has also had occasion to clarify that proceedings for restoration of legal capacity are directly decisive for the determination of “civil rights and obligations”. It may also be appropriate in cases of this kind that the domestic authorities establish after a certain lapse of time whether such a measure continues to be justified. Re-examination is particularly justified if the person concerned requests it (see Matter, cited above, § § 51 and 68 ). 127. The Court lastly takes note that recently the Lithuanian legislation was amended and from 1 January 2016 the applicant is finally able to initiate proceedings aimed at varying his incapacitation decision (see paragraph 57 above). However, this positive development cannot alter the above conclusion, which relates to the period prior to entry into force of the aforementioned amendment (see Berková v. Slovakia, no. 67149/01, § § 174 and 175, 24 March 2009 ). 128. In sum, having examined the decision-making process and the reasoning behind the domestic decisions, the Court concludes that the interference with the applicant ’ s right to respect for his private life was disproportionate to the legitimate aim pursued. There was, therefore, a breach of Article 8 of the Convention on account of the applicant ’ s full incapacitation. III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 129. Lastly, the applicant complained about his placement in the Šiauliai Psychiatric Hospital in 2004. 130. The Court observes, however, that in 2014 the applicant ’ s complaint was dismissed by the Šiauliai Regional Court as having no basis (see paragraph 32 above). In the light of the materials in its possession, the Court sees no reason to defer from that conclusion. Accordingly, this complaint must be dismissed as manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 131. 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 132. The applicant did not submit any claims for pecuniary or non ‑ pecuniary damage, but requested a review of his diagnosis with schizophrenia and the decision regarding his legal incapacity. 133. In the light of his submissions and the material in the case file, the Court considers that the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage suffered by the applicant. B. Costs and expenses 134. The applicant did not claim any costs or expenses. Accordingly, the Court makes no award under this head. | The Court held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention. Having examined the decision-making process and the reasoning behind the domestic decisions, it concluded that the interference with the applicant’s right to respect for his private life had been disproportionate to the legitimate aim pursued. The Court noted in particular that the district court had had no opportunity to examine the applicant in person and had relied in its decision essentially on the testimony of his mother and the psychiatric report. While the Court did not doubt the competence of the medical expert or the seriousness of the applicant’s illness, it stressed that the existence of a mental disorder, even a serious one, could not be the sole reason to justify full incapacitation. The Court also held that there had been a violation of Article 6 § 1 (right to a fair trial) of the Convention, finding that the regulatory framework for depriving people of their legal capacity had not provided the necessary safeguards and that the applicant had been deprived of a clear, practical and effective opportunity to have access to court in connection with the incapacitation proceedings, in particular, in respect of his request to restore his legal capacity. |
114 | Domestic violence / abuse | II. RELEVANT DOMESTIC LAW AND PRACTICE 15. Section 10 (as amended by Act no. 969/1995, which took effect on 1 August 1995 and remained in force until 1 March 2000) of the Constitution Act ( Suomen Hallitusmuoto, Regeringsform för Finland; Act no. 94/1919), provided: “Everyone has freedom of expression. Freedom of expression entails the right to express, disseminate and receive information, opinions and other communications without prior prevention by anyone. More detailed provisions on the exercise of freedom of expression are laid down by an Act. Provisions on restrictions relating to pictorial programmes that are necessary for the protection of children may be laid down by an Act.” The same provision appears in Article 12 of the current Constitution of 2000 ( Suomen perustuslaki, Finlands grundlag; Act no. 731/1999). 16. Section 8 of the Constitution Act (as amended by Act no. 969/1995) corresponded to Article 10 of the current Constitution, which provides that everyone's right to private life is guaranteed. 17. Chapter 27, article 2(1), of the Penal Code ( rikoslaki, strafflagen; Act no. 908/1974, as in force until 1 October 2000 ), provided that a person alleging, albeit not contrary to his or her better knowledge, that someone had committed an offence was to be convicted of defamation and sentenced to a fine or imprisonment for a maximum term of six months, unless he or she could show reasonable grounds for the allegation. For the conduct to be intentional, the offender had to be aware of the fact that the defamatory allegations might subject the person concerned to contempt, or harm his or her profession or career. In cases where the offender did not understand the defamatory nature of the conduct, it has not been considered intentional, but the fact that the offender has been mistaken about the truth of the defamatory allegation has not altered the intentional nature of his or her conduct. Only in cases where the offender has been able adequately to prove the truth of his or her allegations has it been possible to free him or her from liability. In one of its precedents ( KKO 2006:10 ), the Supreme Court held that a person had committed defamation when she had failed to verify the truthfulness of the information she had provided when requesting a criminal investigation by the police and reporting to the social welfare authorities under the Child Welfare Act her suspicion that another person had committed sexual and other offences. 18. Under the terms of Chapter 5, section 6, of the Tort Liability Act ( vahingonkorvauslaki, skadeståndslagen; Act no. 412/1974), damages may be awarded for the distress arising from an offence against someone's liberty, honour or domestic peace or from another comparable offence. 19. Section 40 of the Child Welfare Act ( lastensuojelulaki; barnskyddslagen, Act no. 683/1983), in force until 1 January 2008, provided that if, in the course of his or her activities, an employee or elected official in health care, social welfare, education, the police or the church learned about a child in apparent need of family-oriented or individual child welfare measures, he or she had to notify the social welfare board without delay. The provision has been interpreted to mean that any confidentiality obligation is superseded by the duty to notify. The wording “apparent need of child welfare measures ” referred to section 12, which set a clearly lower threshold for child welfare measures than the threshold set in section 16 for taking a child into public care. Even a less than serious risk to the child' s health or development warrants notification to the social welfare board. The word “apparent” is used in order to encourage notifications also in cases where there exists no full evidence of or certainty about the existence of such a risk. When a child welfare official receives notification, he or she must verify the facts and assess whether support measures are needed. The wording has left room for interpretation of how certain the notifier must be of the child' s need for child welfare measures. In particular, there has been uncertainty about whether the mere suspicion of such a need suffices for notifying the authorities. 20. According to the Government Bill (HE 252/2006 vp) for the enactment of the new Child Welfare Act (Act no. 417/2007, which entered into force on 1 January 2008), in order to guarantee children 's safety the threshold for making a child welfare notification under Section 25 should not be excessively high. If a person considering making such a notification has difficulties in assessing whether his or her concern about the child is sufficient to justify notifying the authorities, he or she may, if necessary, consult the social welfare authorities, for instance, without communicating the child's name to them. The provision expressly provides that any confidentiality obligation is superseded by the duty to notify. Section 25(6) provides that the child welfare authorities must report to the police any case where there is good reason to suspect that a sex offence, homicide or bodily injury has been committed on a child in the environment in which he or she was growing up and the suspected offence carries a maximum penalty of at least two years'imprisonment. 21. As a rule, the child concerned is entitled to be informed of the notifier's identity. In practice, however, cases exist where disclosure of the identity of a private person making such a notification would be particularly harmful to the child's best interests or the notifier' s safety, for example. Authorities need not provide a party with information on identity if the conditions mentioned in section 11 of the Openness of Government Activities Act (laki viranomaisten toiminnan julkisuudesta; lagen om offentlighet i myndigheternas verksamhet; Act no. 621/1999) are fulfilled : a party shall not have the right of access to a document if such access would be contrary to a very important public interest, the interest of a minor or some other very important private interest. According to the Government Bill (HE 30/1998 vp ), the best interests of a child may justify protecting the notifier' s identity on the basis of an overall consideration of the circumstances of each individual case. As an example, the Government Bill mentions the situation where the notifier is a person close to the child, for instance a grandparent, and to disclose his or her identity would break the child' s relationship with an adult important to his or her welfare. Disclosure of the notifier' s identity may, in individual cases, also be in conflict with the public interest if providing the information might defeat the purpose of child welfare measures. 22. In September 2005 the Ombudsman for Children ( lapsivaltuutettu, barnombudsmannen ) took up her duties. The Ombudsman is entrusted with the task of promoting the best interests and rights of the child in general administration, social policy and legislation. The Ombudsman may issue recommendations, guidelines and advice but she cannot receive individual complaints. The Ombudsman is an independent authority who works in liaison with the Ministry of Social Affairs and Health ( sosiaali- ja terveysministeriö, social- och hälsovårdsministeriet ). The Parliamentary Ombudsman ( eduskunnan oikeusasiamies, riksdagens justitieombudsman ) retains her mandate regarding children and continues to act on individual complaints addressed to her. THE LAW I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 25. The applicant complained that she had been found guilty of defamation even though she had merely honestly voiced her impression of the causes of her grandchild's bruises to the doctor, who was bound by professional secrecy. She argued that the Court of Appeal's judgment had a negative impact on the rights of those in need of the services of a doctor in sensitive cases, such as victims of domestic violence, since they might refrain from seeking medical help for fear of being prosecuted. 26. Article 10 reads: “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.” 27. The Government contested that argument. A. Admissibility 28. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties' submissions 29. The applicant argued that freedom of expression was at its widest in a doctor-patient relationship. Referring to the principles laid down in the case of Nikula v. Finland ( no. 31611/96, § 44, ECHR 2002 ‑ II) the applicant submitted that, just like defence counsel's freedom of expression, freedom of expression in a doctor-patient relationship required particular protection. When a parent or relative finds that a small child has bruises, should he or she be afraid to repeat to the doctor what the child has told him or her? If there exists doubt as to the origin of a bruise, should it be punishable to engage in a discussion with the doctor about the various possibilities? A doctor must be able to rely on the truthfulness of a patient's statement and it was equally clear that false statements regarding, inter alia, sexual abuse, were punished. A medical doctor was, however, an expert in matters relating to physical abuse. If the patient raised a concern regarding his or her son 's or grandson 's injuries, the doctor could directly judge whether or not the concerns were substantiated. 30. The applicant had seen a bruise on the boy after he had visited his father. The boy had told her how the bruise had come about. The applicant had never accused T. of hitting his son, but expressed concern to the doctor as regards the boy's injuries. The doctor had found the bruise to be consistent with possible violence by T. against his son. It was clear that one could not report such violence to the police unless there was evidence supporting the allegation. The required level of certainty could not, however, be the same for reporting an incident to the police as for consulting a doctor to ask his opinion. 31. The applicant argued that, as regards the requirement of “prescribed by law”, the relevant repealed provision of the Penal Code was problematic. It was possible for a person to be sentenced for defamation even if the act was unintentional, if he was not able to satisfy the shifted burden of proof, that is, to prove himself innocent. Furthermore, could a reasonable person be expected to understand that this provision would be applied when expressing concern to the family doctor about the origin of bruises on her grandson? In order for an offence to be punishable, the law had to be particularly precise. The Supreme Court had delivered 35 published judgments on defamation or slander. There was no established doctrine, correcting the imprecision in law, on the basis of which the applicant could or should have foreseen that she might be prosecuted. 32. The Government conceded that the liability to pay damages and the conviction, although the sentence had been waived, amounted to an interference with the applicant's right to freedom of expression. It had a basis in section 10(1) of the then Constitution Act, Chapter 27, Articles 1 and 2, of the Penal Code and Chapter 5, section 6, of the Tort Liability Act. Their interpretation in the present case had in no way been arbitrary. The interference aimed to protect the rights of the boy's father. Taking into account the margin of appreciation left to the Contracting States, the national authorities were, in the circumstances of the case, entitled to interfere with the exercise of the applicant' s right to freedom of expression ( compare Tammer v. Estonia, no. 41205/98, § 69, ECHR 2001 ‑ I ), and this interference was necessary in a democratic society. The impugned measures, the waived sentence and the modest non-pecuniary damages and costs were “ proportionate to the legitimate aim pursued ” and the reasons adduced by the courts to justify them were “relevant and sufficient” within the meaning of Article 10 § 2. 33. The Government submitted that the Court of Appeal had found it proved that the applicant had alleged that T. had struck his son, by giving the doctor to understand that the boy had been struck. The applicant had not produced such grounds for the suspicion as to justify her allegations or prove that the insinuations were true. The fact that the boy had told her that his father had punched him could not be accorded significance as reasonable grounds for the suspicion, considering his young age and the fact that she had discussed the matter with him the previous evening, and also that he might have heard the preliminary information provided by her prior to the discussion between him and the doctor. 34. The case mainly involved assessment of evidence. The Court of Appeal had first assessed whether the applicant had intentionally expressed a suspicion that T. had struck the boy, finding in the affirmative. Secondly, it had assessed whether the applicant had had sufficient grounds to express her suspicion that T. had struck the boy. The court had answered this question in the negative, finding that the applicant had not produced the reasonable grounds required by the Penal Code in support of her suspicion. It had accordingly convicted her of defamation. 35. In the light of the evidence provided, the Court of Appeal had not and could not have taken a stand on whether the applicant's report to the doctor concerning suspected violence had been her own idea or whether it was what the boy had told her. The court had assessed the case as a whole, taken account of the applicant' s particular status as the boy's grandmother, and considered her action excusable, waiving punishment and only ordering her to compensate for the distress caused to T. 36. Assessing the type of the boy's injury and determining the need for medical care or protecting the doctor-patient relationship did not require the name of the person who might have caused the bruise to be mentioned. Medical confidentiality was without significance, because merely voicing an unfounded suspicion could fulfil the essential elements of an offence. 37. As regards the reference to the case of Nikula v. Finland (cited above) the Government submitted that it was not comparable to the case under consideration because it concerned defence counsel' s freedom of expression, which required particular protection, whereas the present case concerned a private individual' s freedom of expression when consulting a doctor. 38. As for the applicant' s view that the old defamation provision was not sufficiently precise to permit her to foresee how it would be applied in her case, the Government noted that it laid down expressly that reasonable grounds must be produced in support of the allegation and its application was therefore foreseeable. Its application had become established case-law over a long period of time, on the basis of which it was clear that expressing unfounded suspicions that someone had committed a crime would be considered as defamation. 2. The Court's assessment 39. In exercising its supervisory function, the Court must look at the impugned interference in the light of the case as a whole including, in this case, the content of the remark held against the applicant and the context in which it was made. 40. It was common ground between the parties that the applicant's conviction constituted an interference with her right to freedom of expression as guaranteed by Article 10 § 1 of the Convention. Furthermore, the parties agreed that the interference pursued a legitimate aim, namely the protection of the reputation or rights of others, within the meaning of Article 10 § 2. The Court endorses this assessment. The applicant and the Government differed on whether the interference was “ prescribed by law ” and “necessary in a democratic society.” As to the former issue, the Court accepts that the applicant's criminal conviction was based on a reasonable interpretation of the Penal Code as in force at the relevant time, and that the order requiring her to pay damages was based on the relevant provision of the Tort Liability Act. The interference was thus “prescribed by law” (see Nikula v. Finland, cited above, § 34; Selistö v. Finland, no. 56767/00, § 34, 16 November 2004 and Karhuvaara and Iltalehti v. Finland, no. 53678/00, § 43, ECHR 2004 ‑ X). It remains to be determined whether the interference in question was “proportionate to the legitimate aims pursued” and whether the reasons adduced by the national authorities to justify it were “relevant and sufficient”. In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they based themselves on an acceptable assessment of the relevant facts (see Nikula v. Finland, § 44). 41. This case calls into consideration two countervailing interests, each of high social importance: the need to safeguard children from abuse by their own parents, and the need to protect parents from unnecessary interference with their right to respect for their private and family life or the risk of unjustified arrest and prosecution. The first of these interests involves protection of children as the victims of crime. The Court has emphasised that children and other vulnerable individuals in particular are entitled to State protection, in the form of effective deterrence, against such serious breaches of personal integrity (see, mutatis mutandis, X and Y v. the Netherlands, 26 March 1985, §§ 21–27, Series A no. 91; Stubbings and Others v. the United Kingdom, 22 October 1996, §§ 62–64, Reports 1996-IV; and also the United Nations Convention on the Rights of the Child, Articles 19 and 37 ). The Court would refer, in particular, to the case of A. v. the United Kingdom ( 23 September 1998, § 22, Reports 1998 ‑ VI) where a stepfather had subjected a child to treatment contrary to Article 3 and was acquitted having argued that the treatment amounted to “reasonable chastisement”. The Court held in that case that the obligation under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, required States to take measures designed to ensure that individuals within their jurisdiction were not subjected to torture or inhuman or degrading treatment or punishment, including such ill-treatment administered by private individuals. 42. If the source of the abuse is the parent, the child is at risk from his primary and natural protector within the privacy of his home. Child abuse is indeed a hard form of criminal conduct to combat, because its existence is difficult to uncover. Babies and young children are unable to tell, older children are often too frightened. The question raised by this application is how to strike a proper balance when a parent is wrongly suspected of having abused his or her child, while protecting children at risk of significant harm. In considering these questions, the starting point is to note that the applicant acted properly in considering whether the bruise on the boy's back had been deliberately inflicted. Having become suspicious, she consulted a medical doctor who rightly decided to communicate to the child welfare authorities the suspicion which he personally formed having examined and interviewed the boy. That is the essential next step in child protection. The seriousness of child abuse as a social problem requires that persons who act in good faith (see, mutatis mutandis, Guja v. Moldova [GC], no. 14277/04, § 77, ECHR 2008 ‑ ...), in what they believe are the best interests of the child, should not be influenced by fear of being prosecuted or sued when deciding whether and when their doubts should be communicated to health care professionals or social services. There is a delicate and difficult line to tread between taking action too soon and not taking it soon enough. The duty to the child in making these decisions should not be clouded by a risk of exposure to claims by a distressed parent if the suspicion of abuse proves unfounded. 43. It is true that the applicant was convicted merely of defamation committed “without better knowledge”, to be distinguished from defamation “despite better knowledge”, that is to say, intentionally imputing an offence to T. whilst knowing that he had not committed it (rather than voicing a mere suspicion that he had). Nonetheless, the threat of an ex post facto review in criminal proceedings of a concerned grandmother's statement made in good faith to the child's doctor accords ill with every adult's moral duty to defend a child's interests. The Court finds it alarming that the Court of Appeal took the view that the applicant, when there was no doubt that she had seen the boy's bruised back, was not entitled to repeat what the boy had told her, that is, that he had been hit by his father, an assertion he had repeated when interviewed by the doctor. The possibility to voice a suspicion of child abuse, formed in good faith, in the context of an appropriate reporting procedure should be available to any individual without the potential “chilling effect” of a criminal conviction or an obligation to pay compensation for harm suffered or costs incurred. 44. The Court is aware that the spectre of vexatious litigation is often used as a reason for requiring that extra care be shown when making a report on alleged child abuse to the authorities. It was not argued before the domestic courts or before this Court that the applicant acted recklessly, that is without caring whether the boy's allegation of abuse was well-founded or not. On the contrary, even a health care professional, the medical doctor, made his own assessment that the case should be reported to the child welfare authorities. 45. It is therefore only in exceptional cases that restriction of the right to freedom of expression in this sphere can be accepted as necessary in a democratic society. In the Court's view, sufficient reasons for the interference have not been shown to exist and the restriction on the applicant's right to freedom of expression therefore failed to answer any “pressing social need”. 46. There has therefore been a violation of Article 10 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 47. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 48. Under the head of non-pecuniary damage the applicant claimed 8,000 euros (EUR ) for mental suffering and distress. Under the head of pecuniary damage she claimed EUR 3,616.41 for the sums she was ordered to pay to the boy's father. 49. The Government considered the claim for non-pecuniary damage excessive as to quantum. The award should not exceed EUR 2,500. The Government considered that the applicant might be entitled to compensation for pecuniary damage as far as the legal costs and expenses paid to T. were concerned. 50. The Court finds that there is a causal link between the violation found and the alleged pecuniary damage. Consequently, there is justification for making an award. The Court awards the applicant EUR 3,616.41 under this head. The Court accepts that the applicant has also suffered non-pecuniary damage which is not sufficiently compensated by the finding of a violation of the Convention. Making its assessment on an equitable basis, the Court awards the applicant EUR 3 ,000 under this head. B. Costs and expenses 51. The applicant also claimed EUR 72.62 for the costs and expenses incurred before the domestic courts and EUR 2,623.21 (inclusive of value-added tax) for those incurred before the Court. 52. The Government considered that the costs could be awarded in full. 53. The Court considers it reasonable to award the sum of EUR 72.62 for the domestic proceedings and the sum of EUR 2,623.21 (inclusive of value-added tax) for the proceedings before the Court. C. Default interest 54. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court found a violation of Article 10 (freedom of expression) of the Convention. In its view, people should be free to voice a suspicion of child abuse, formed in good faith, in the context of an appropriate reporting procedure without fear of a criminal conviction or an obligation to pay compensation for harm suffered or costs incurred. There had been no suggestion that the applicant had acted recklessly: on the contrary, even a health care professional had decided that the case should be reported to the child welfare authorities. In sum, it was only in exceptional cases that restriction of the right to freedom of expression in this sphere could be accepted as necessary in a democratic society. In the applicant's case, sufficient reasons for the interference with her right to freedom of expression had not been provided and the interference had therefore failed to answer any “pressing social need”. |
1,058 | Protection of property (Article 1 of Protocol No. 1 to the Convention) | III. relevant domestic law 45. Section 343 (1A) of the 1970 Act (introduced by section 40 of the Finance Act 1985, and as amended by section 47 of the Finance Act 1986) provides as follows: “The Board may by regulations made by statutory instrument make provision with respect to the year 1986/87 and any subsequent year of assessment requiring building societies, on such sums as may be determined in accordance with the regulations (including sums paid or credited before the beginning of the year but not previously brought into account under subsection (1) above or this subsection), to account for and pay an amount representing income tax ... and any such regulations may contain such incidental and consequential provisions as appear to the Board to be appropriate, including provisions requiring the making of returns.” [The words in bold print were added by the 1986 Act.] 46. Section 53 of the Finance Act 1991 provides, so far as relevant, as follows: “(1) Section 343 (1A) of the Income and Corporation Taxes Act 1970 ... shall be deemed to have conferred power to make all the provisions in fact contained in the Income Tax (Building Societies) Regulations 1986 ... (4) In relation to a building society which commenced proceedings to challenge the validity of the Regulations before 18 July 1986, this section shall not have effect to the extent that the Regulations apply (or purport to apply) to payments or credits made before 6 April 1986.” 47. Section 64 of the Finance (No. 2) Act 1992 provides as follows: “(1) For the purposes of this section each of the following is a relevant order – (a) the Income Tax (Reduced and Composite Rate) Order 1985 ... (b) the Income Tax (Reduced and Composite Rate) Order 1986 ... (c) the Income Tax (Reduced and Composite Rate) Order 1987 ... (d) the Income Tax (Reduced and Composite Rate) Order 1988 ... (2) If apart from this section a relevant order would not be so taken, it shall be taken to be and always to have been effective to determine the rate set out in the order as the reduced rate and the composite rate for the year of assessment for which the order was made.” PROCEEDINGS BEFORE THE COMMISSION 48. In their applications (nos. 21319/93, 21449/93 and 21675/93), lodged with the Commission on 15 January 1993, 21 December 1992 and 11 January 1993, the applicants alleged violations of Article 6 of the Convention and Article 1 of Protocol No. 1, taken alone and in conjunction with Article 14 of the Convention. On 30 August 1994 the Commission joined the National & Provincial’s application and the Yorkshire’s application, and on 10 January 1995 joined the Leeds’ application with the other two applications. On 13 January 1995 the Commission declared the applications admissible. In its report of 25 June 1996 (Article 31) the Commission expressed the opinion that there had been no violation of Article 1 of Protocol No. 1 (thirteen votes to three); that there had been no violation of Article 1 of Protocol No. 1 taken in conjunction with Article 14 of the Convention (fourteen votes to two); that there had been a violation of Article 6 § 1 of the Convention (nine votes to seven); and that it was not necessary to examine the complaint under Article 6 § 1 of the Convention taken in conjunction with Article 14 of the Convention (fourteen votes to two). The full text of the Commission’s opinion and of the four separate opinions contained in the report is reproduced as an annex to this judgment [4]. FINAL SUBMISSIONS TO THE COURT 49. The applicant societies requested the Court to find that the facts disclosed breaches of Article 1 of Protocol No. 1 and of Article 6 of the Convention, taken alone or in conjunction with Article 14 of the Convention, and to award them just satisfaction. The Government for their part requested the Court to decide and declare that the facts gave rise to no breach of the Convention. AS TO THE LAW I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 50. The applicants claimed to be victims of a breach of Article 1 of Protocol No. 1, which provides as follows: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” A. As to the alleged expropriation of the applicant societies’ assets 51. The applicant societies maintained that it had never been suggested during the passage of section 40 of the Finance Act 1985 (see paragraphs 15 and 16 above) or at the time when the 1986 Regulations had been laid before Parliament (see paragraphs 17 and 18 above) that the gap period would be brought into account on a second occasion for tax purposes. The Government had given repeated assurances, including during the parliamentary discussions on section 47 of the Finance Act 1986, that the new arrangements would not produce any additional revenue (see paragraph 22 above). However, this indeed was the effect of the Regulations since they taxed twice interest which had already been assessed to tax for the fiscal year 6 April 1985 to 5 April 1986. The tax had been paid on or around 1 January 1986 in order to discharge their investor’s liability for that fiscal year (see paragraph 14 above). The House of Lords in the Woolwich 1 litigation had acknowledged when striking down those Regulations that the transitional provisions subjected the interest paid in the gap period to double taxation, and this consideration was a fundamental part of the ratio decidendi of their decision (see paragraphs 29 and 30 above). 52. According to the applicant societies, it could only be concluded that the Government had misled Parliament as to the aim of the legislative scheme and had in effect procured the enactment of legislation which had the result of expropriating substantial amounts of money lawfully held in their reserves. They subsequently sought to legalise that expropriation by means of retrospective legislation which deprived the societies of their legal rights to recover those amounts. 53. The Government stressed that the sole intention behind section 40 of the Finance Act 1985 and the adoption of the 1986 Regulations was to ensure that in the transition from the prior to the actual year basis of assessment (see paragraphs 13 and 15 above) the interest paid by building societies to investors would be brought into account for tax purposes. Had the 1986 Regulations, as validated ultimately by section 53 of the 1991 Act (see paragraphs 33 and 34 above), not addressed the tax liability of the interest paid during the gap period in the way they did certain building societies like the applicant societies would have been left with considerable amounts of untaxed interest in their reserves. The interest paid in the gap period was taxed once and once only. The Government minister had correctly informed Parliament that the new arrangements would not produce additional revenue. The untaxed interest in the gap period would have been brought into account had the voluntary arrangements continued in force. The Regulations simply altered the timing of payment of tax on that interest by spreading the liability to pay it over successive fiscal years. 54. In the view of the Government, the applicant societies could not rely on the judgments given in the Woolwich 1 litigation to support their contention that the 1986 Regulations imposed double taxation. The Regulations had been declared void on purely technical grounds. Parliament had never been misled as to the effect which the 1986 Regulations would have on the gap period. Parliament had in fact legislated after extensive debates on the new arrangements in full knowledge of the concerns expressed by building societies at the relevant time about the effect of the Regulations. 55. Before the Court the Delegate of the Commission stated that it had been the clear intention of Parliament in enacting section 40 of the Finance Act 1985 and adopting the 1986 Regulations to ensure that building societies did not benefit from a windfall, but should remain liable to tax on interest paid to their investors in the gap period. Furthermore, there was no support in the House of Lords ruling in the Woolwich 1 litigation for the argument that the applicant societies had been subjected to a double imposition other than in a technical sense. 56. The Court notes that the assertions of the applicant societies in regard to the intention of Parliament in 1985 and 1986 are central to their complaints concerning the retroactive removal of their rights to recover the monies which they paid to the Inland Revenue. It is fundamental to their arguments on those complaints that those monies were in reality unlawfully expropriated from their reserves under the guise of taxation. 57. Without prejudice to its subsequent consideration of the applicant societies’ allegations that they had been unlawfully deprived of their legal claims to restitution of their monies in breach of Article 1 of Protocol No. 1, the Court is of the opinion that it should clarify at the outset whether or not the applicant societies are correct in their submissions that the legislative measures taken in 1985 and 1986 subjected the interest which they paid to their investors in the gap period to a double imposition contrary to the intention of Parliament. 58. It is to be noted in this respect that, had the voluntary arrangements (see paragraph 8 above) continued to apply as between the building societies and the Inland Revenue, the interest would inevitably have been brought into account for tax purposes. Accordingly, and by way of example, the Leeds would have had to pay to the Inland Revenue on or around 1 January 1987 tax on the interest earned by its investors between 1 October 1985 and 30 September 1986 in order to discharge the latter’s liability to tax on that interest for the fiscal year 6 April 1986 to 5 April 1987. The interest paid in the gap period in issue would thus have been taxed, and subsequent gap periods would have been brought into account in future fiscal years in accordance with the same logic. The voluntary arrangements made no provision for interest to be omitted for tax-assessment purposes. 59. Since the interest earned by their investors in the gap period had been paid to them net of tax (see paragraph 10 above), the applicant societies had already deducted amounts representing tax on that interest. Those amounts were lodged in their reserves waiting to be brought into account. It is an inescapable conclusion that, had steps not been taken to bring those amounts into account in the move from the prior-period system (see paragraphs 13 and 14 above) to the actual-year system (see paragraphs 15 and 16 above), the applicant societies would have been left with considerable sums of money representing unpaid tax. It cannot be maintained that the effect of the transitional arrangements in the 1986 Regulations was to subject those amounts of money to double taxation other than in a technical sense, since no tax had ever been paid on the interest paid in the gap period before the changeover to the new actual-year scheme of assessment. Admittedly, by deeming the interest to have been paid in a later accounting period (see paragraph 17 above) the effect ofthe transitional regulations was to accelerate the payment of tax owed to the Inland Revenue in a way which may seem to be at variance with the measurement principle (see paragraph 7 above). However, this cannot serve to refute the conclusions that the volume of payments remained the same as between the old and the new system and that there was no increase in the revenue collected from the applicant societies. 60. Nor is the Court persuaded by the arguments of the applicant societies that the judgment of the House of Lords in the Woolwich 1 case (see paragraphs 29 and 30 above) provides support for their view that the effect of the transitional mechanism in the 1986 Regulations was to subject the interest paid to investors in the gap period to double taxation other than in a theoretical sense, having regard to the way in which the measurement principle was adjusted. As noted above (see paragraph 59), had the measurement principle not been modified the applicant societies would undoubtedly have each received a windfall, substantial in all cases but especially so in the case of the Leeds, which had the longest gap period. Neither is it convinced by their claim that Parliament was misled as to the effect of the transitional arrangements. It would appear that both section 40 of the Finance Act 1985 (see paragraph 15 above) and section 47 of the Finance Act 1986 (see paragraph 22 above) were fully discussed at the various legislative stages against the background of strong lobbying on the part of building societies to have the interest paid to investors in the gap period omitted from assessment. It cannot be said therefore that Parliament did not appreciate the impact of the 1986 Regulations, having regard to the opportunities which the opponents of the proposals had to question Government ministers and to clarify the precise implications of the scheme for building societies. 61. Having regard to the above conclusions, the Court will therefore consider the claims of the applicant societies that they were deprived of their legal rights to restitution of the monies paid to the Inland Revenue under the invalidated Regulations on the clear understanding that those monies were intended by Parliament to be charged to tax, had not been subjected to a double imposition and were not therefore wrongfully expropriated. B. As to the deprivation of the applicant societies’ legal claims 1. Whether there were possessions within the meaning of Article 1 62. The applicant societies contended that their legal claims to restitution of the assets which had been “unlawfully expropriated” by virtue of the 1986 Regulations constituted, like those assets, “possessions” within the meaning of Article 1 of Protocol No. 1. As a result of the House of Lords ruling in the Woolwich 2 litigation (see paragraph 44 above) the applicant societies must be considered to have had enforceable common-law rights to recover their assets, which rights accrued as soon as the money had been paid over to the Inland Revenue pursuant to the invalidated Regulations. The Government had no defence to their claim for recovery, a point which they had conceded at the costs hearing in the wake of the stifled restitution proceedings brought by the Leeds and the National & Provincial (see paragraph 35 above). Having regard to the principles established by the Court in its Stran Greek Refineries and Stratis Andreadis v. Greece judgment of 9 December 1994 (Series A no. 301-B) and in its Pressos Compania Naviera S.A. and Others v. Belgium judgment of 20 November 1995 (Series A no. 332), they maintained that that right was sufficiently established and certain to constitute possessions and gave each of them a clear legitimate expectation that they would be treated similarly to the Woolwich on the basis of the law as it stood prior to the enactment of section 53 of the 1991 Act. The judicial review proceedings directed at the validity of the Treasury Orders (see paragraphs 38–40 above) and the second set of restitution proceedings (see paragraph 41 above) brought by all the applicant societies were an alternative route to the assertion of their enforceable rights to restitution of their monies. These rights were once again stifled under the impact of section 64 of the 1992 Act. 63. The Government disputed this conclusion and especially the reliance by the applicant societies on the case-law cited. None of the applicant societies’ legal claims had ever given rise to a binding enforceable judgment. In fact the two sets of restitution proceedings had never proceeded beyond the issuing of writs (see paragraphs 31, 32 and 41 above) and the judicial review proceedings challenging the validity of the Treasury Orders (see paragraphs 38–40 above) were at an equally embryonic stage with the applicants having, at best, only an arguable chance of success. Furthermore, the first set of restitution proceedings brought by the Leeds and the National & Provincial (see paragraphs 31 and 32 above) and the second set of restitution proceedings brought by all three applicant societies (see paragraph 41 above) were in reality opportunistic legal moves having regard to the dates when the writs were issued and the Government’s clear intentions at those times. In fact the second set of restitution proceedings, which were contingent on securing victory in the judicial review proceedings, were bound to fail since they were launched after the Government had officially announced their intention to validate retrospectively the Treasury Orders (see paragraph 42 above). 64. For the above reasons the Government requested the Court to find that Article 1 of Protocol No. 1 was not applicable since the applicant societies could not validly claim to have “possessions”. 65. The Commission considered that the restitution proceedings initiated by the Leeds and the National & Provincial (see paragraphs 31 and 32 above) were “possessions” having regard to the scope of the decision of the House of Lords in the Woolwich 2 litigation. Had the Government not acted as they did and secured the passage of section 53 of the 1991 Act through Parliament (see paragraphs 33 and 34 above), there was nothing to suggest that the authorities would have had any sustainable defence to the restitution claim. 66. In the view of the Commission, it was less certain, however, whether the judicial review proceedings and the second set of restitution proceedings (see paragraphs 38–40 and paragraph 41 above) amounted to “possessions”. Nevertheless, the Commission was prepared to assume that those claims were possessions, having regard to the background to the proceedings and to the fact that they were in effect alternative routes to the assertion of the restitution claims which had been extinguished by section 53 of the 1991 Act. Before the Court the Delegate of the Commission stated that the Commission had in fact assumed that the legal claims asserted by each of the applicant societies were possessions in order to bring into play the third sentence of Article 1 of Protocol No. 1 which preserves the right of a Contracting State to pass laws which it deems necessary to secure the payment of taxes. 67. The Court notes that the decision of the House of Lords in the Woolwich 2 litigation lies at the heart of the applicant societies’ contention that the claims which they sought to assert in each of the three sets of legal proceedings amounted to “possessions” within the meaning of Article 1 of Protocol No. 1. In that landmark decision the House of Lords established that a plaintiff had a prima facie common-law right to repayment of sums paid to a public authority in the form of taxes pursuant to a demand which is found to be ultra vires (see paragraph 44 above). The Woolwich recovered the interest owing on sums paid to the Inland Revenue on the strength of the law on restitution as so clarified, having already been repaid towards the end of 1987 the monies which had been collected from it by the Inland Revenue under the Regulations which, by that stage, had been declared invalid by the High Court (see paragraph 26 above). However, the Leeds and the National & Provincial had not themselves secured an enforceable final judgment in their favour at the time of instituting the first set of restitution proceedings and it may be questioned whether they could be considered in the circumstances to have had an acquired right to the recovery of their monies at that time (see, mutatis mutandis, the Stran Greek Refineries and Stratis Andreadis judgment cited above, p. 85, §§ 61–62). The strength of their contention on this aspect lies essentially in the fact, firstly, that the Inland Revenue had repaid the Woolwich the principal sum (see paragraph 26 above) when it was discovered that Regulation 11 (4) of the 1986 Regulations was defective, entailing a risk that the transitional arrangements could not be saved despite the enactment of section 47 of the Finance Act 1986 (see paragraph 22 above), and, secondly, that the House of Lords in the Woolwich 1 case (see paragraph 29 above) ultimately found the 1986 Regulations including the transitional arrangements to be void in their entirety. It is significant in this regard that the Government conceded the merits of the cases brought by the Leeds and the National & Provincial (see paragraph 35 above), thereby indicating that in the absence of section 53 of the 1991 Act they would have lost the cases. 68. At the same time it must also be observed that the Leeds and the National & Provincial brought their restitution proceedings at a time when the law on restitution was not in fact favourable to the outcome of their cases. The House of Lords judgment in the Woolwich 2 case, which is central to their claim to have an established right amounting to possessions, was in fact delivered one year after the writs had been issued. Furthermore, while it may be the case that the authorities did not intimate to the applicant societies in the course of the Woolwich 1 litigation that they would seek to restore with retroactive effect the original intention of Parliament should that case go against the Inland Revenue, it is reasonable to question whether these two building societies could have had a “legitimate expectation” (see paragraph 62 above) that the Government would not have reacted as they did to the outcome of the litigation. As the Government have pointed out (see paragraph 63 above), the writs were issued after the decision had been taken to rectify with retrospective effect the inadvertent defects in the 1986 Regulations and in the days immediately preceding the official announcement by the Government of this course of action (see paragraphs 30–32 above). 69. While noting that the Leeds and the National & Provincial may be considered to have at best a precarious basis on which to assert a right amounting to “possessions”, the Court is of the view that the claims asserted in the judicial review proceedings (see paragraphs 38–40 above) and the second set of restitution proceedings brought by all three applicant societies in May and June 1992 respectively (see paragraphs 39 and 40 above) could not be said to be sufficiently established or based on any “legitimate expectation” (see paragraph 62 above) that those claims would be determined on the basis of the law as it stood. By that stage Parliament had shown its continuing resolve to reassert its original intention to tax the interest paid in the gap period by enacting section 53 of the 1991 Act; nor could they have any cast-iron guarantee of obtaining the declaration sought in the judicial review proceedings to enable them to recover their monies in the follow-up restitution proceedings. 70. While expressing no concluded view as to whether any of the claims asserted by the applicant societies could properly be considered to constitute possessions, the Court, like the Commission (see paragraph 66 above), is prepared to proceed on the working assumption that in the light of the Woolwich 2 ruling the applicant societies did have possessions in the form of vested rights to restitution which they sought to exercise in direct and indirect ways in the various legal proceedings instituted in 1991 and 1992. In so doing, it notes that the arguments which have been advanced in support of their contention that they had possessions are indissociably bound up with their complaints that they were unjustifiably deprived of those possessions. It will therefore treat Article 1 of Protocol No. 1 as applicable for the purposes of examining whether there was an interference with their legal claims and, if so, whether that interference was justified in the circumstances. 2. Whether there was an interference 71. The applicant societies asserted that the concrete effect of section 53 of the 1991 Act was to stifle the restitution proceedings instituted by the Leeds and the National & Provincial (see paragraph 35 above). The subsequent enactment of section 64 of the 1992 Act (see paragraphs 42 and 43 above) effectively removed any prospect of securing redress in the domestic courts against the “unlawful expropriation” of their assets. There was accordingly an interference with their possessions. 72. The Government did not deny that the retrospective effects of the impugned measures brought an end to the applicant societies’ claims to recover the amounts which they had paid to the Inland Revenue. 73. The Commission concluded that the retrospective measures had the effect of interfering with the applicant societies’ possessions on the hypothesis that the various claims did amount to such. 74. The Court notes that it is common ground that the retroactive measures operated in a way which constituted an interference with the enjoyment of the applicant societies’ possessions. On the working assumption that the legal claims in issue amounted to possessions within the meaning of Article 1 of Protocol No. 1 (see paragraph 70 above), the Court sees no reason to reach a contrary conclusion. It will therefore assess whether or not that interference was justified. 3. Whether the interference was justified 75. The applicant societies reiterated that they were fairly and reasonably entitled to consider themselves in exactly the same position as the Woolwich with vested rights to recover the monies which had been expropriated from them under the 1986 Regulations (see paragraph 62 above). However, the Government intentionally procured the enactment of retrospective primary legislation in order to stifle the opportunity to assert those rights in a way which was repugnant to principles of legal certainty and legitimate expectation. The retrospective measures constituted a disproportionate and discriminatory interference with their rights which left them without any compensation. The measures were solely motivated by the intent of the authorities to retain the applicant societies’ assets and could not be considered justified as being necessary to secure the payment of taxes within the meaning of the second paragraph of Article 1 of Protocol No. 1. The monies expropriated were not tax since all liability to pay tax on the interest earned by their investors in the gap period had been discharged (see paragraphs 51 and 52 above). In any event that provision only concerned procedural measures taken to enforce tax legislation and could not be invoked to justify substantive tax legislation such as the Finance Acts in issue in the instant case. 76. The Government argued that the ultimate aim of the impugned measures was, in line with the original intention of Parliament, to secure the payment of tax on the interest paid by building societies during the gap period and, in the case of section 64 of the 1992 Act, also to secure GBP 15 billion of revenue which had been collected from 1986 onwards from building societies, banks and other deposit institutions (see paragraph 42 above). Having regard to a Contracting State’s margin of appreciation in the tax field and to the public-interest considerations at stake, it could not be said that the decisions taken by Parliament to enact these measures with retrospective effect were manifestly without reasonable foundation or failed to strike a fair balance between the demands of the general interest of the community and the protection of the rights of the applicant societies. The latter were in fact seeking by means of opportunistic legal proceedings to exploit technical defects in the 1986 Regulations and to frustrate the original intention of Parliament. They clearly understood what that intention was and they could not have had any legitimate expectations following the Woolwich 1 litigation that Parliament would be content to leave the law as it then stood and allow them to retain a windfall. 77. The Commission found that the interference with the applicant societies’ legal claims was justified and that there was no violation of Article 1 of Protocol No. 1. Parliament intended by section 47 of the 1986 Act to authorise the Inland Revenue to charge to tax the interest paid to investors in the gap period. The aim of section 53 of the 1991 Act (see paragraph 33 above) and section 64 of the 1992 Act (see paragraph 42 above) was to prevent building societies from frustrating that intention by exploiting technical defects in the drafting of the Regulations and benefiting from a windfall. In adopting retrospective measures to reaffirm that intention and to secure the payment of tax, the legislature did not upset the fair balance between the demands of the general interest of the community and the protection of the fundamental rights of the applicant societies. (a) The applicable rule 78. The Court recalls that Article 1 of Protocol No. 1 guarantees in substance the right to property. It comprises three distinct rules. The first, which is expressed in the first sentence of the first paragraph and is of a general nature, lays down the principle of the peaceful enjoyment of possessions. The second, in the second sentence of the same paragraph, covers deprivation of possessions and makes it subject to certain conditions. The third, contained in the second paragraph, recognises that the Contracting States are entitled to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties. However, the three rules are not “distinct” in the sense of being unconnected: the second and the third rules are concerned with particular interferences 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, among many other authorities, the Gasus Dosier- und Fördertechnik GmbH v. the Netherlands judgment of 23 February 1995, Series A no. 306-B, pp. 46–47 § 55). 79. Having regard to the fact that the background to the alleged deprivation of the applicant societies’ rights is constituted by the first unsuccessful steps taken by Parliament to ensure that interest paid in the gap period was charged to tax, it would appear to the Court to be the most natural approach to examine their complaints from the angle of a control of the use of property in the general interest “to secure the payment of tax”, which falls within the rule in the second paragraph of Article 1. In so proceeding, it recalls that it has already found that the transitional arrangements contained in the 1986 Regulations did not, contrary to the assertions of the applicant societies, impose double taxation on the interest paid to their investors in the gap period or amount to a wrongful expropriation of their assets (see paragraph 61 above). On that factual understanding, the efforts to secure a firm legal basis firstly, and unsuccessfully, in section 47 of the Finance Act 1986 (see paragraphs 22 and 30 above), and secondly in section 53 of the 1991 Act (see paragraphs 33–35 above) to give effect to Parliament’s legitimate aim when adopting the defective Regulations (see paragraphs 15–18 above) could be considered equally to be measures to secure the payment of tax. It is to be recalled in this regard that irrespective of the move to the actual-year system the interest in issue would always have been liable to be brought into account for tax purposes (see paragraphs 58 and 59 above). (b) Compliance with the conditions laid down in the second paragraph 80. According to the Court’s well-established case-law (see, among many other authorities, the Gasus Dosier- und Fördertechnik GmbH judgment cited above, p. 49, § 62), an interference, including one resulting from a measure to secure the payment of taxes, must strike a “fair balance” between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights. The concern to achieve this balance is reflected in the structure of Article 1 as a whole, including the second paragraph: there must therefore be a reasonable relationship of proportionality between the means employed and the aims pursued. Furthermore, in determining whether this requirement has been met, it is recognised that a Contracting State, not least when framing and implementing policies in the area of taxation, enjoys a wide margin of appreciation and the Court will respect the legislature’s assessment in such matters unless it is devoid of reasonable foundation (see the Gasus Dosier- und Fördertechnik GmbH judgment cited above, pp. 48–49, § 60). 81. Against that background, the Court notes that in enacting section 53 of the 1991 Act with retroactive effect Parliament was concerned to restore and reassert its original intention which had been stymied by the finding of the House of Lords in the Woolwich 1 litigation that the 1986 Regulations were ultra vires on technical grounds (see paragraphs 29 and 30 above). The decision to remedy the technical deficiencies of the Regulations with retroactive effect was taken before 7 March 1991, namely before the date when the Leeds and the National & Provincial issued their writs (see paragraphs 30 and 33 above) and without regard to the imminent launch of the first set of restitution proceedings. Although section 53 had the effect of extinguishing the restitution claims of those two applicant societies, it does not appear to the Court that the ultimate aim of the measure was without reasonable foundation having regard to the public-interest considerations which underpinned the proposal to legislate with retroactive effect and Parliament’s endorsement of that proposal. There is in fact an obvious and compelling public interest to ensure that private entities do not enjoy the benefit of a windfall in a changeover to a new tax-payment regime and do not deny the Exchequer revenue simply on account of inadvertent defects in the enabling tax legislation, the more so when such entities have followed the debates on the original proposal in Parliament and, while disagreeing with that proposal, have clearly understood that it was Parliament’s firm intention to incorporate it in legislation. Nor can the applicant societies maintain that the effect of the measure imposed an excessive and individual burden on them given that the interest they had paid to investors in the gap period would have been brought into account for tax purposes had the voluntary arrangements continued in force (see paragraph 58 above). They cannot assert that they had suffered prejudice other than in the sense that they were treated differently from the Woolwich. However, the substance of the latter allegation falls to be considered under their complaint under Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1 (see paragraph 84 below). 82. Furthermore, it is to be noted that the history of the enactment of section 64 of the 1992 Act must also be seen in terms of the same struggle between the legislature’s efforts to safeguard the tax paid by the applicant societies and the latter’s attempts to frustrate by all legal means possible those efforts and recover that tax. The challenge to the validity of the Treasury Orders was in reality an initiative on the part of all three applicant societies to recover indirectly what two of them had been denied under the effect of section 53 of the 1991 Act (see paragraph 35 above). If the enactment of the latter provision can be considered to be justified on public-interest grounds (see paragraph 81 above), it must also be the case that the same public-interest justification can be lawfully asserted by the respondent State to thwart the challenge to the Treasury Orders. Indeed, on that occasion much more was at stake than the assertion of Parliament’s right to secure tax on the interest paid by building societies over the course of the gap period since the vulnerability of the Treasury Orders to legal challenge placed at risk very substantial amounts of revenue collected from 1986 onwards from institutions other than building societies. The public-interest considerations in removing any uncertainty as to the lawfulness of the revenue collected must be seen as compelling and such as to outweigh the interests defended by the applicant societies in contesting the legality of the rate set by the Treasury Orders in order to try once again to circumvent Parliament’s original intention. 83. The Court considers therefore that the actions taken by the respondent State did not upset the balance which must be struck between the protection of the applicant societies’ rights to restitution and the public interest in securing the payment of taxes. There has accordingly been no violation of Article 1 of Protocol No. 1. II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 taken IN CONJUNCTION WITH ARTICLE 14 OF THE CONVENTION 84. The applicant societies maintained that the impugned measures gave rise to a breach of Article 1 of Protocol No. 1 taken in conjunction with Article 14 of the Convention, having regard to their discriminatory effect. Article 14 of the Convention is worded 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.” 85. The applicant societies contended that they were in a materially identical situation to that of the Woolwich as regards the application of the 1986 Regulations. Like the Woolwich they enjoyed the same rights to restitution of the monies which they had paid to the Inland Revenue pursuant to an unlawful demand. The Leeds in particular had closely associated itself with the Woolwich’s decision to seek judicial review of the 1986 Regulations and all the applicant societies had at various stages made formal demands for repayment. They were not required to join the Woolwich’s judicial review proceedings given that the outcome of the action would have been declaratory of the law applicable to all taxpayers. They were thus entitled to await the result of that litigation. On the strength of the House of Lords ruling in the Woolwich 1 case the Leeds and the National & Provincial issued writs to institute their own restitution proceedings against the authorities. 86. Furthermore, section 64 of the 1992 Act could not be said to be non-discriminatory as between the Woolwich and the applicant societies merely because it was of general application. This provision in fact favoured the Woolwich since the Woolwich had recovered all the monies owing to it. 87. The Commission, with whom the Government agreed, concluded that there had been no breach under this head. In contrast with the Woolwich, none of the applicants had instituted proceedings to challenge the validity of the 1986 Regulations. The Woolwich alone had borne the costs and incurred the risks of litigation. The applicant societies could not therefore be considered to have been in a relevantly similar situation to that of the Woolwich. In any event there was a reasonable and objective justification for the difference in treatment, having regard to the public-interest considerations motivating the enactment of section 53 of the 1991 Act and the appropriateness of excluding the Woolwich from the retroactive effects of that measure given that that building society had secured a final court judgment in its favour. As to section 64 of the 1992 Act, the Commission found that this provision applied across the board and could not be considered to be discriminatory in its effect. The Government supported this conclusion. 88. The Court reiterates that Article 14 of the Convention affords protection against discrimination in the enjoyment of the rights and freedoms safeguarded by the other substantive provisions of the Convention. However, not every difference in treatment will amount to a violation of this Article. Instead, it must be established that other persons in an analogous or relevantly similar situation enjoy preferential treatment, and that there is no reasonable or objective justification for this distinction. Furthermore, Contracting States enjoy a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment in law (for a recent authority, see the Stubbings and Others v. the United Kingdom judgment of 22 October 1996, Reports of Judgments and Decisions 1996-IV, p. 1507, § 72). 89. It is clear that the applicant societies were in an analogous if not identical situation with respect to the impact of the transitional mechanism in the 1986 Regulations on the monies held in their reserves. However, the Woolwich alone took an independent and bold stance by mounting a legal challenge to the validity of the Regulations (see paragraph 21 above). That building society was undeterred by the attempt of Parliament to stifle the litigation by enacting section 47 of the Finance Act 1986 (see paragraph 22 above). Admittedly, the Woolwich’s action was backed by the applicant societies and the Leeds in particular may be considered to have conspicuously manifested its solidarity with the Woolwich (see paragraph 20 above). However, the Court shares the view of the Commission that the Woolwich alone showed its readiness to bear the costs and risks of the litigation, taking complex and expensive proceedings against the Inland Revenue on two occasions as far as the House of Lords. By the time section 53 of the 1991 Act was enacted, the Leeds and the National & Provincial had not proceeded beyond the stage of issuing writs, whereas the Woolwich had secured a victory in the House of Lords (see paragraphs 29 and 30 above) and there were reasonable prospects that the House of Lords would uphold the decision of the Court of Appeal in its restitution proceedings allowing it interest on the sums paid (see paragraphs 36 and 37 above). It is also to be noted that the authorities had already repaid to the Woolwich the tax which had been collected from it with interest from 31 July 1987 (see paragraph 26 above). In these circumstances, the Court does not accept that the applicant societies were in fact in a relevantly similar situation to that of the Woolwich. 90. The Court also considers that, even if it were possible to regard the applicant societies as having been in a relevantly similar situation to the Woolwich in view of their arguments on the erga omnes effect of the remedy sought by the Woolwich (see paragraph 85 above), there was nevertheless a reasonable and objective justification for the distinction made in section 53 of the 1991 Act (see paragraph 34 above). It was the aim of Parliament in enacting that provision to restore its original intention to secure the liability to tax of the interest paid to investors in the gap period and to make the Regulations immune from any further exploitation on technical grounds. The decision to do so retrospectively has been found by the Court to be justified in the public interest (see paragraph 81 above). To exclude the Woolwich from the retroactive effect of section 53 could be considered on reasonable and objective grounds to be justified given that by the time of enactment of that section the Woolwich had secured a final judgment in its favour from the House of Lords and it was understandable that Parliament did not wish to interfere with a judicial decision which brought to an end litigation which had lasted over three years. 91. As to the effect of section 64 of the 1992 Act (see paragraphs 33–35 above), the Court notes that the measure applied generally to building societies, banks and other deposit institutions. Admittedly the Woolwich was not concerned about the validity of the Treasury Orders since it had no interest in challenging them. However, it cannot be maintained that section 64 perpetuated any difference in treatment between the Woolwich and the applicant societies which resulted from section 53 of the 1991 Act given the Court’s earlier conclusions on that complaint (see paragraphs 89 and 90 above). 92. Having regard to the above considerations, the Court concludes therefore that there has been no breach of Article 1 of Protocol No. 1 taken in conjunction with Article 14 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 93. The applicant societies further maintained that the measures taken by the respondent State deprived them of their right of access to a court for a determination of their civil rights to restitution of monies to which they were lawfully entitled. They alleged that there had been a breach of Article 6 § 1 of the Convention, which provides to the extent relevant: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law …” A. Applicability of Article 6 § 1 94. The applicant societies maintained that the subject matter of the three sets of legal proceedings which they had initiated (see paragraphs 31, 32 and 38–41 above) was pecuniary in nature and the outcome of the litigation in each instance was decisive for their private-law rights to restitution of the monies of which they had been unlawfully deprived by the respondent State. Should any doubts exist about the classification of the judicial review proceedings which each society set in motion between 10 July 1991 and 3 March 1992 (see paragraphs 38–40 above), the Court should find, like the Commission, that these proceedings were in fact an alternative route to the recovery of their monies. As such, the proceedings could not therefore be considered to be purely of a public-law nature. 95. The Government disputed the applicability of Article 6 § 1 of the Convention to the various proceedings instituted by the applicant societies. While the first set of restitution proceedings instituted by the Leeds and the National & Provincial (see paragraphs 31 and 32 above) may ostensibly have borne the hallmark of private-law proceedings, they nonetheless concerned a determination of rights and obligations which derived from tax legislation and which were therefore fiscal in nature. The judicial review proceedings instituted by the applicant societies (see paragraphs 38–40 above) were directed at obtaining a discretionary public-law remedy and were not concerned with securing restitution of the monies which they had paid pursuant to the 1986 Regulations. Furthermore, the second set of restitution proceedings brought by the applicant societies (see paragraph 41 above) depended on the outcome of the judicial review proceedings and for this reason could not be considered to be of a private-law nature. For the above reasons, the Government maintained that the applicant societies could not rely on Article 6 § 1. 96. The Commission concluded that Article 6 § 1 was applicable. The two sets of restitution proceedings (see paragraphs 30, 31 and 41 above) were pecuniary in nature. The judicial review proceedings (see paragraphs 38–40 above) were closely linked to the second set of restitution proceedings (see paragraph 41 above) and formed part of a sequence of litigation which had its roots in the defective draftsmanship of section 40 of the Finance Act 1985 and the transitional provisions of the 1986 Regulations. 97. The Court considers that both sets of restitution proceedings (see paragraphs 30, 31 and 41 above) were private-law actions and were decisive for the determination of private-law rights to quantifiable sums of money. This conclusion is not affected by the fact that the rights asserted in those proceedings had their background in tax legislation and the obligation of the applicant societies to account for tax under that legislation (see, mutatis mutandis, the Editions Périscope v. France judgment of 26 March 1992, Series A no. 234-B, p. 66, § 40). 98. As to the judicial review proceedings (see paragraphs 38–40 above), it is to be noted that these were closely interrelated with the second set of restitution proceedings and were part of a calculated strategy to reassert the private-law claims which had been extinguished by section 53 of the 1991 Act. In these circumstances and irrespective of the public-law nature of that litigation, the judicial review proceedings must also be considered to have been decisive of private-law rights. 99. The Court concludes therefore that Article 6 § 1 of the Convention is applicable. B. Compliance with Article 6 § 1 100. The applicant societies contended that the Government of the respondent State intentionally procured the enactment of retrospective legislation to thwart their access to a court to assert their vested rights to restitution of their assets. They argued that the legal victories secured by the Woolwich (see paragraphs 29 and 44 above) left the authorities with no defence to their claims. Indeed, the authorities had in fact conceded this by paying the costs incurred by the Leeds and the National & Provincial in bringing the first set of restitution proceedings (see paragraph 35 above). It was equally significant that the Government minister at the time of the passage through Parliament of the bill which eventually became the 1992 Act declared that section 64 thereof was designed to interfere with ongoing legal proceedings, namely the legal challenge to the validity of the Treasury Orders (see paragraph 42 above). 101. While accepting that limitations on the right of access to a court guaranteed by Article 6 § 1 may in certain well-defined circumstances be justified having regard to a Contracting State’s margin of appreciation, the applicant societies stressed that any such margin cannot for the purposes of that provision be as broad as the one which may be invoked by a Contracting State under Article 1 of Protocol No. 1. With reference to the Court’s own case-law governing the scope of limitations to the right of access to a court, they insisted that the retrospective measures did not pursue a legitimate aim given that the Government’s overriding concern was to legalise the unlawful expropriation of their assets. The resulting interference was also disproportionate. More importantly, the very essence of their right of access to a court had been impaired since the concrete result of section 53 of the 1991 Act and section 64 of the 1992 Act was to remove with retrospective effect the causes of action and render fruitless any attempt to secure redress before the courts. 102. The Government reasoned that the “possessions” of which the applicant societies claimed they had been deprived in breach of Article 1 of Protocol No. 1 were in reality their claims to restitution of the monies which they had been required to pay to the Inland Revenue. It must follow therefore that the lawful deprivation of the substance of their claims justified the removal of the procedural protection of those claims. For this reason, a finding by the Court that there had been no violation of Article 1 of Protocol No. 1 compelled a similar finding in respect of the applicant societies’ complaints under Article 6. 103. The Government further maintained that there was no absolute rule which prohibited the intervention of the legislature in pending legal proceedings to which the State was a party. Whether or not retrospective legislation having this effect was lawful or not from the angle of Article 6 needed to be assessed in the light of factors such as the background to the litigation, the stage reached in the legal proceedings and the reasons which motivated legislative intervention. Referring therefore to the arguments which they advanced both to dispute that the applicant societies’ legal claims amounted to possessions and to justify the deprivation of the applicant societies’ legal claims under Article 1 of Protocol No. 1 (see paragraphs 63 and 76 above), the Government requested the Court to find that the same justifications operated in defence of the alleged violation of Article 6. 104. The Commission concluded that there had been a violation of Article 6 § 1. While there may have been legitimate reasons for the introduction of section 53 of the 1991 Act and section 64 of the 1992 Act, by retrospectively validating the 1986 Regulations and the Treasury Orders which were the subject of pending litigation, the respondent State had intervened through the legislature in a manner which was decisive to ensure a favourable outcome of proceedings to which it itself was party. The effect of the measures was thus to deprive the applicant societies of their right to a determination of their civil rights and obligations following a fair hearing before a court. 105. The Court recalls that Article 6 § 1 of the Convention embodies the “right to a court”, of which the right of access, that is, the right to institute proceedings before a court in civil matters, constitutes one aspect. However, this right 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. In this respect, the Contracting States enjoy a certain margin of appreciation, although the final decision as to the observance of the Convention’s requirements rests with the Court. It must be satisfied that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see the Stubbings and Others judgment cited above, p. 1502, § 50). 106. It is to be noted at the outset that the effect of section 53 of the 1991 Act was to deprive the Leeds and the National & Provincial of their chances of winning their restitution proceedings against the Inland Revenue (see paragraph 35 above). Section 64 of the 1992 Act effectively removed any hope which all three applicant societies may have had of restoring their chances of securing a favourable outcome against the Inland Revenue and recovering the tax they had paid. At no stage did the legislature intervene directly to bar the applicant societies’ access to a court to seek a determination of the rights which they wished to assert. Admittedly, the end result of sections 53 and 64 was to condemn to failure any attempt by the applicant societies to proceed with their claims since Parliament, by means of primary legislation, had rendered both the 1986 Regulations and the Treasury Orders immune from judicial scrutiny. The applicant societies accordingly took the decision to discontinue the various proceedings which they had launched in the knowledge that they had no prospects of success. 107. Having regard to the above considerations, the Court must examine whether the action taken by the legislature on both occasions to deprive the applicant societies of their chances of winning litigation against the respondent State constituted an interference with their right of access to a court. In so doing, it will have regard to all the circumstances of the case and will subject to close scrutiny the reasons adduced by the respondent State for justifying any intervention which may have occurred in pending litigation as a result of the retrospective effects of section 53 of the 1991 Act and section 64 of the 1992 Act. 108. It is to be noted firstly that the applicant societies disputed from the very beginning their liability to pay tax on the interest they had paid to their investors in the gap period. The concerns of building societies were made known to Parliament during the passage of section 40 of the Finance Act 1985 (see paragraphs 15 and 16 above) and section 47 of the Finance Act 1986 (see paragraph 22 above). However, by enacting those measures Parliament clearly affirmed its intention to bring the interest paid in the gap period into account for tax purposes in the manner indicated in the 1986 Regulations. 109. The applicant societies subsequently became involved in a struggle with the Treasury through the courts in order to circumvent that intention, relying firstly on technical defects in the 1986 Regulations and secondly on alleged defects in the Treasury Orders. They followed closely the outcome of the Woolwich 1 litigation, and when the latter building society succeeded in having the 1986 Regulations invalidated on technical grounds the Leeds and the National & Provincial launched their own proceedings in the form of restitution actions (see paragraphs 31 and 32 above) in order to take advantage of the loophole exposed by the House of Lords in the Woolwich 1 case (see paragraphs 29 and 30 above). However, having regard to the clear aim of Parliament in adopting the impugned measures (see paragraph 108 above), these two applicant societies must reasonably be considered to have anticipated at the close of the Woolwich 1 litigation that the Treasury would seek Parliament’s approval to cure the technical defects in the 1986 Regulations and would not be content on public-interest grounds to allow a substantial amount of already collected revenue to be lost on account of a technicality. It is to be noted in this respect that the Director-General of the Building Societies Associations was not surprised by the Treasury’s announcement that retrospective legislation would be introduced in the form of section 53 of the 1991 Act (see paragraph 35 above). It is also to be noted that the Leeds and the National & Provincial instituted their restitution proceedings after the authorities had formally decided to seek Parliament’s approval for the retrospective validation of the 1986 Regulations and in the days immediately before the official announcement of that decision (see paragraphs 30–33 above). In these circumstances, those proceedings must be considered to have been an attempt to benefit from the vulnerability of the authorities’ situation following the outcome of the Woolwich 1 litigation and to pre-empt the enactment of remedial legislation. 110. Furthermore, the decision of the authorities to legislate with retrospective effect to remedy the defect in the 1986 Regulations was taken without regard to pending legal proceedings and with the ultimate aim of restoring Parliament’s original intention with respect to all building societies whose accounting periods ended in advance of the start of the fiscal year. That the extinction of the restitution proceedings was a significant consequence of the implementation of that aim cannot be denied. Nevertheless, it cannot be maintained that the Leeds and the National & Provincial were the particular targets of the authorities’ decision. 111. While it is true that it was openly acknowledged by the authorities that the enactment of section 64 of the 1992 Act was intended to bring an end to the judicial review proceedings brought by all three applicant societies (see paragraph 42 above), those proceedings were in reality a next stage in the struggle with the Treasury and a deliberate strategy to frustrate the original intention of Parliament. This is borne out by the aim of the applicant societies in bringing the contingent restitution proceedings to recover no more than they had paid to the Inland Revenue under the 1986 Regulations (see paragraph 41 above). Given the reaction of the authorities to the outcome of the Woolwich 1 litigation, the applicant societies could not safely rely on the Treasury remaining inactive in the face of a further challenge to Parliament’s original intention, the more so since that challenge was directed at the validity of the Treasury Orders which formed the legal basis for the very substantial amounts of revenue collected from 1986 onwards, not just from building societies but also from banks and other deposit institutions (see paragraph 42 above). 112. As noted above (see paragraph 107) the Court is especially mindful of the dangers inherent in the use of retrospective legislation which has the effect of influencing the judicial determination of a dispute to which the State is a party, including where the effect is to make pending litigation unwinnable. Respect for the rule of law and the notion of a fair trial require that any reasons adduced to justify such measures be treated with the greatest possible degree of circumspection (see the Stran Greek Refineries and Stratis Andreadis judgment cited above, p. 82, § 49). However, Article 6 § 1 cannot be interpreted as preventing any interference by the authorities with pending legal proceedings to which they are a party. It is to be noted that in the present case the interference caused by section 64 of the 1992 Act was of a much less drastic nature than the interference which led the Court to find a breach of Article 6 § 1 in the Stran Greek Refineries and Stratis Andreadis case (cited above). In that case the applicants and the respondent State had been engaged in litigation for a period of nine years and the applicants had an enforceable judgment against that State in their favour. The judicial review proceedings launched by the applicant societies had not even reached the stage of an inter partes hearing. Furthermore, in adopting section 64 of the 1992 Act with retrospective effect the authorities in the instant case had even more compelling public-interest motives to make the applicant societies’ judicial review proceedings and the contingent restitution proceedings unwinnable than was the case with the enactment of section 53 of the 1991 Act. The challenge to the Treasury Orders created uncertainty over the substantial amounts of revenue collected from 1986 onwards (see paragraph 42 above). It must also be observed that the applicant societies in their efforts to frustrate the intention of Parliament were at all times aware of the probability that Parliament would equally attempt to frustrate those efforts having regard to the decisive stance taken when enacting section 47 of the Finance Act 1986 and section 53 of the 1991 Act. They hadengaged the will of the authorities in the tax sector, an area where recourse to retrospective legislation is not confined to the United Kingdom, and must have appreciated that the public-interest considerations in placing the 1986 Regulations on a secure legal footing would not be abandoned easily. 113. For the above reasons, the Court concludes that the applicant societies cannot in the circumstances justifiably complain that they were denied the right of access to a court for a judicial determination of their rights. There has accordingly been no breach of Article 6 § 1 of the Convention. IV. ALLEGED violation OF ARTICLE 6 § 1 of THE CONVENTION taken IN CONJUNCTION WITH ARTICLE 14 114. The applicant societies complained in addition that the impugned measures violated Article 6 § 1 of the Convention taken in conjunction with Article 14. 115. They reiterated that they were in a virtually identical situation to that of the Woolwich. Like the latter building society they possessed common-law rights to restitution of monies expropriated by the respondent State. The Woolwich had been allowed to recover in full following independent judicial determinations of its claims. Unlike the applicant societies, the Woolwich was excluded from the retrospective effects of section 53 of the 1991 Act. The Government minister responsible for the passage through Parliament of the 1992 Act had expressly acknowledged that there had been a disparity of treatment between the Woolwich and other building societies (see paragraph 42 above). That disparity was maintained in section 64 of the 1992 Act on account of the fact that the Woolwich had recovered everything owing to it and was not therefore concerned about the validity of the Treasury Orders. 116. The Government contended that the applicant societies were not in a relevantly similar position to the Woolwich and, further, that there existed a reasonable and objective justification for the difference in treatment. They relied on the reasoning used by the Commission to reach its finding that there had been no breach of Article 1 of Protocol No. 1 taken in conjunction with Article 14 of the Convention (see paragraph 87 above). 117. The Commission did not find it necessary to examine the applicant societies’ complaints under this head, having regard to its conclusion under Article 6 § 1 of the Convention (see paragraph 104 above). 118. The Court observes that the complaints raised by the applicant societies under this head reflect the substance of their earlier complaints under Article 1 of Protocol No. 1 taken in conjunction with Article 14 (see paragraphs 84–86 above). It concluded in connection with those complaints that the Woolwich and the applicant societies were not in a relevantly similar situation and that in any event there was a reasonable and objectivejustification for excluding the Woolwich from the retrospective effects of section 53 of the 1991 Act. Furthermore, it could not be validly contended that section 64 of the 1992 Act was discriminatory in its effect (see paragraphs 89–92 above). 119. The Court considers that the reasons which it has adduced in respect of the above finding equally support the conclusion that there has been no violation of Article 6 § 1 taken in conjunction with Article 14 of the Convention. The Court finds therefore that the applicant societies were not victims of a violation under this head. | The Court held that there had been no violation of Article 1 (protection of property) of Protocol No. 1. Having regard to the wide margin of appreciation which a Contracting State enjoys in framing and adopting policies in the tax sector, it found that, in the circumstances, the retrospective measures adopted by Parliament, even if they had the effect of stifling the applicant’s legal claims, did not upset the balance between their rights to restitution and the public interest in securing the payment of taxes. The Court further held that there had been no violation of Article 6 § 1 (right to a fair trial) of the Convention, finding that the applicants could not in the circumstances justifiably complain that they had been denied the right of access to a court for a judicial determination of their rights. It also held that there had been no violation of Article 1 of Protocol No. 1 taken in conjunction with Article 14 (prohibition of discrimination) of the Convention and no violation of Article 6 § 1 in conjunction with Article 14. |
535 | Police brutality | III. RELEVANT DOMESTIC LAW 38. According to Article 2 § 1 of the Greek Constitution, the “value of the human being” is one of the fundamental principles and a “primary obligation” of the Greek State. 39. Article 5 § 2 of the Constitution reads as follows: “All persons living within the Greek territory shall enjoy full protection of their life, honour and liberty irrespective of nationality, race or language and of religious or political beliefs. Exceptions shall be permitted only in cases provided for by international law ... ” 40. Law no. 927/1979 (as amended by Law no. 1419/1984 and Law no. 2910/2001) is the principal implementing legislation on the prevention of acts or activities related to racial or religious discrimination. IV. RELEVANT INTERNATIONAL LAW 41. European Union Council Directive 2000/43/CE of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin and Council Directive 2000/78/CE of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, provide, in Article 8 and Article 10 respectively: “1. Member States shall take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment. 2. Paragraph 1 shall not prevent Member States from introducing rules of evidence which are more favourable to plaintiffs. 3. Paragraph 1 shall not apply to criminal procedures. ... 5. Member States need not apply paragraph 1 to proceedings in which it is for the court or competent body to investigate the facts of the case.” THE LAW I. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION 42. The applicants complained that during their arrest and subsequent detention they were subjected to acts of police brutality which inflicted on them great physical and mental suffering amounting to torture, inhuman and/or degrading treatment or punishment. They also complained that the Greek investigative and prosecuting authorities failed to carry out a prompt and effective official investigation into the incident. They argued that there had been a breach of Article 3 of the Convention, which provides: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. The submissions of the parties 43. The applicants submitted that they had suffered serious bodily harm at the hands of the police and that the investigation into the incident and the ensuing judicial proceedings were ineffective, deficient and inconclusive. They stressed that at the material time they were young and vulnerable. They had also received threats during the course of the investigation. This was the reason why, at some point, they claimed that they did not wish to pursue their complaints against the police officers. 44. The Government referred to the findings of the domestic court and submitted that the applicants ’ complaints were wholly unfounded. Their moderate injuries were the result of the struggle that took place during their arrest. The applicants themselves had stated that the conduct of the police officers was justified and that they did not want to see them prosecuted. The investigation into the incident was prompt, independent and thorough, and led to a fine being imposed on Mr Tsikrikas. Criminal charges were also brought against him. Several witnesses and the applicants were heard in court. The fact that the accused was acquitted had no bearing on the effectiveness of the investigation. B. The Court ’ s assessment 1. Concerning the alleged ill-treatment 45. As the Court has stated on many occasions, Article 3 enshrines one of the most fundamental values of democratic societies. Even in the most difficult circumstances, such as the fight against terrorism and organised crime, the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment. 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 the Assenov and Others v. Bulgaria judgment of 28 October 1998, Reports of Judgments and Decisions 1998-VIII, p. 3288, § 93). The Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the victim ’ s conduct (see the Chahal v. the United Kingdom judgment of 15 November 1996, Reports 1996-V, p. 1855, § 79). 46. In assessing evidence, the Court has generally applied the standard of proof “beyond reasonable doubt” (see Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, pp. 64-65, § 161). However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries occurring during such detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII). 47. In the instant case the applicants complained that during their arrest and subsequent detention they were subjected to acts of police brutality. Admittedly, on the day of their release from police custody, the applicants bore injuries. According to the Court ’ s case-law, “where an individual is taken into police custody in good health but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation as to the causing of the injury, failing which a clear issue arises under Article 3 of the Convention” ( Aksoy v. Turkey, judgment of 18 December 1996, Reports 1 996–VI, p. 2278, § 61). 48. The Court considers that in the present case the domestic authorities have failed to provide such an explanation. It notes in this respect that the three-member Patras Court of Appeal which tried the only police officer who had been committed to trial attributed the applicants ’ injuries to the struggle that took place during their arrest and considered that “if the applicants had indeed been beaten by police officers during their detention, they would have reported this fact to their relatives”; in the Court ’ s view this reasoning is less than convincing, in particular taking into account that the administrative investigation that was conducted into the incident established that the applicants had been treated “with particular cruelty during their detention” and the acknowledgement by the Chief of the Greek Police that the applicants had been beaten by police officers during their detention. 49. The question which therefore arises next is whether the minimum level of severity required for a violation of Article 3 of the Convention can be regarded as having been attained in the instant case (see, among other authorities, İlhan v. Turkey [GC], no. 22277/93, § 84, ECHR 2000-VII). The Court recalls that 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, p. 1517, § 52). 50. In considering whether a punishment or treatment is “degrading” within the meaning of Article 3, the Court will also have regard to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3 (see, for example, Raninen v. Finland, judgment of 16 December 1997, Reports 1997-VIII, pp. 2821-22, § 55). 51. In the light of the above circumstances, the Court considers that the serious physical harm suffered by the applicants at the hands of the police, as well as the feelings of fear, anguish and inferiority which the impugned treatment had produced in them, must have caused the applicants suffering of sufficient severity for the acts of the police to be categorised as inhuman and degrading treatment within the meaning of Article 3 of the Convention. 52. The Court concludes that there has been a breach of Article 3 of the Convention in this regard. 2. Concerning the alleged inadequacy of the investigation 53. The Court recalls that 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. As with an investigation under Article 2, such 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, among other authorities, Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000-IV). 54. As regards the present case, the Court notes that on several occasions, during both the administrative inquiry that was conducted into the incident and the ensuing judicial proceedings, it has been acknowledged that the applicants were ill-treated while in custody. However, no police officer was ever punished, either within the criminal proceedings or the internal police disciplinary procedure for ill-treating the applicants. In this regard the Court notes that the fine of less than 59 euros imposed on Mr Tsikrikas was imposed not on the grounds of his own ill-treatment of the applicants but for his failure to prevent the occurrence of ill-treatment by his subordinates (see paragraph 23 above). It is further noted that neither Mr Tsikrikas nor Mr Avgeris were at any time suspended from service, despite the recommendation of the report on the findings of the administrative inquiry (see paragraphs 20-22 above). In the end, the domestic court was satisfied that the applicants ’ light clothing was the reason why the latter got injured during their arrest. Thus, the investigation does not appear to have produced any tangible results and the applicants received no redress for their complaints. 55. In these circumstances, having regard to the lack of an effective investigation into the credible allegation made by the applicants that they had been ill-treated while in custody, the Court holds that there has been a violation of Article 3 of the Convention in this respect. II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 56. The applicants complained that they had not had an effective remedy within the meaning of Article 13 of the Convention, which stipulates: “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.” 57. In view of the grounds on which it has found a violation of Article 3 in relation to its procedural aspect (see paragraphs 53 to 55 above), the Court considers that there is no need to examine separately the complaint under Article 13 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION 58. The applicants complained that the ill-treatment they had suffered, along with the subsequent lack of an effective investigation into the incident, were in part due to their Roma ethnic origin. They 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. The submissions of the parties 59. The applicants acknowledged that in assessing evidence the standard of proof applied by the Court was that of “proof beyond reasonable doubt”, but noted that the Court had made it clear that that standard had not be interpreted as requiring such a high degree of probability as in criminal trials. They affirmed that the burden of proof had to shift to the respondent Government when the claimant established a prima facie case of discrimination. 60. Turning to the facts of the instant case, the applicants claimed that the nature of the incident itself, the racist language used by the police and the continuous failure of the domestic authorities to sanction anti-Roma police brutality clearly demonstrated a compelling case of racially motivated abuse and dereliction of responsibility. In this respect the applicants reiterated that the police officers had explicitly used racist language and had referred to their ethnic origin in a pejorative way. They further argued that the discriminatory comments which the police officers shouted at them during their detention had to be seen against the broader context of systematic racism and hostility which law-enforcement bodies in Greece repeatedly displayed against Roma. This attitude had been widely documented by intergovernmental and human rights organisations. 61. The Government emphasised that the Court had always required “proof beyond reasonable doubt” and that in the instant case there was no evidence of any racially motivated act on the part of the authorities. They firmly denied that the applicants had been ill-treated; however, even assuming that the police officers who were involved in the incident had acted in a violent way, the Government believed that their behaviour was not racially motivated but was tied to the fact that the applicants had previously committed an offence. 62. The Government further contended that in its latest report on Greece (see paragraph 36 above), ECRI drew the attention of the Greek authorities to the situation of the Roma, highlighting in particular problems of discrimination in respect of housing, employment, education and access to public services. ECRI also stressed the importance of overcoming local resistance to initiatives that benefit Roma but welcomed the fact that the government had taken significant steps to improve the living conditions of Roma in Greece. The Government stressed that there was no mention in the report of any other discrimination suffered by the Roma in respect of their rights guaranteed under the Convention. Lastly, they affirmed that the Greek Constitution expressly proscribed racial discrimination and pointed out that the State had recently undertaken action for the transposition into the Greek legal order of the anti-racism Directives 2000/43 and 2000/78 of the European Communities. B. The Court ’ s assessment 1. Whether the respondent State is liable for degrading treatment on the basis of the victims ’ race or ethnic origin 63. Discrimination is 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 ). Racial violence is a particular affront to human dignity and, in view of its perilous consequences, requires from the authorities special vigilance and a vigorous reaction. It is for this reason that the authorities must use all available means to combat racism and racist violence, thereby reinforcing democracy ’ s vision of a society in which diversity is not perceived as a threat but as a source of its enrichment ( Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 145, 6 July 2005). 64. Faced with the applicants ’ complaint of a violation of Article 14, as formulated, the Court ’ s task is to establish whether or not racism was a causal factor in the impugned conduct of the police officers so as to give rise to a breach of Article 14 of the Convention taken in conjunction with Article 3. 65. The Court reiterates that in assessing evidence it has adopted the standard of proof “beyond reasonable doubt” (see paragraph 47 above); nonetheless, it has not excluded the possibility that in certain cases of alleged discrimination it may require the respondent Government to disprove an arguable allegation of discrimination and – if they fail to do so – find a violation of Article 14 of the Convention on that basis. However, where it is alleged – as here – that a violent act was motivated by racial prejudice, such an approach would amount to requiring the respondent Government to prove the absence of a particular subjective attitude on the part of the person concerned. While in the legal systems of many countries proof of the discriminatory effect of a policy or decision will dispense with the need to prove intent in respect of alleged discrimination in employment or the provision of services, that approach is difficult to transpose to a case where it is alleged that an act of violence was racially motivated (see Nachova and Others v. Bulgaria, cited above, § 157). 66. Therefore, turning to the facts of the present case, the Court considers that whilst the police officers ’ conduct during the applicants ’ detention calls for serious criticism, that behaviour is of itself an insufficient basis for concluding that the treatment inflicted on the applicants by the police was racially motivated. Further, in so far the applicants have relied on general information about police abuse of Roma in Greece, the Court cannot lose sight of the fact that its sole concern is to ascertain whether in the case at hand the treatment inflicted on the applicants was motivated by racism (see Nachova and Others v. Bulgaria, cited above, § 155). Lastly, the Court does not consider that the failure of the authorities to carry out an effective investigation into the alleged racist motive for the incident should shift the burden of proof to the respondent Government with regard to the alleged violation of Article 14 in conjunction with the substantive aspect of Article 3 of the Convention. The question of the authorities ’ compliance with their procedural obligation is a separate issue, to which the Court will revert below (see Nachova and Others v. Bulgaria, cited above, § 157). 67. In sum, having assessed all relevant elements, the Court does not consider that it has been established beyond reasonable doubt that racist attitudes played a role in the applicants ’ treatment by the police. 68. It thus finds that there has been no violation of Article 14 of the Convention taken together with Article 3 in its substantive aspect. 2. Whether the respondent State complied with its obligation to investigate possible racist motives 69. The Court considers that when investigating violent incidents, State authorities have the additional duty to take all reasonable steps to unmask any racist motive and to establish whether or not ethnic hatred or prejudice may have played a role in the events. Admittedly, proving racial motivation will often be extremely difficult in practice. The respondent State ’ s obligation to investigate possible racist overtones to a violent act is an obligation to use best endeavours and 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 a racially induced violence (see, mutatis mutandis, Nachova and Others v. Bulgaria, nos. 43577/98 and 43579/98, §§ 158-59, 26 February 2004). 70. The Court further considers that the authorities ’ duty to investigate the existence of a possible link between racist attitudes and an act of violence is an aspect of their procedural obligations arising under Article 3 of the Convention, but may also be seen as implicit in their responsibilities under Article 14 of the Convention to secure the fundamental value enshrined in Article 3 without discrimination. Owing to the interplay of the two provisions, issues such as those in the present case may fall to be examined under one of the two provisions only, with no separate issue arising under the other, or may require examination under both Articles. This is a question to be decided in each case on its facts and depending on the nature of the allegations made (see, mutatis mutandis, Nachova and Others v. Bulgaria [GC], cited above, § 161). 71. In the instant case the Court has already found that the Greek authorities violated Article 3 of the Convention in that they failed to conduct an effective investigation into the incident. It considers that it must examine separately the complaint that there was also a failure to investigate a possible causal link between alleged racist attitudes and the abuse suffered by the applicants at the hands of the police. 72. The authorities investigating the alleged ill-treatment of the applicants had before them the sworn testimonies of the first applicant that, in addition to being the victims of serious assaults, they had been subjected to racial abuse by the police who were responsible for the ill-treatment. In addition, they had before them the joint open letter of the Greek Helsinki Monitor and the Greek Minority Rights Group protesting about the ill-treatment of the applicants, which they qualified as police brutality against Roma by the Greek police, and referring to some thirty oral testimonies concerning similar incidents of ill-treatment of members of the Roma community. The letter concluded by urging that precise and detailed instructions should be given to all police stations of the country regarding the treatment of Roma by the police (see paragraph 17 above). 73. The Court considers that these statements, when combined with the reports of international organisations on alleged discrimination by the police in Greece against Roma and similar groups, including physical abuse and the excessive use of force, called for verification. In the view of the Court, where evidence comes to light of racist verbal abuse being uttered by law enforcement agents in connection with the alleged ill-treatment of detained persons from an ethnic or other minority, a thorough examination of all the facts should be undertaken in order to discover any possible racial motives (see, mutatis mutandis, Nachova and Others v. Bulgaria [GC], cited above, § 164). 74. In the present case, despite the plausible information available to the authorities that the alleged assaults had been racially motivated, there is no evidence that they carried out any examination into this question. In particular, nothing was done to verify the statements of the first applicant that they had been racially verbally abused or the other statements referred to in the open letter alleging similar ill-treatment of Roma; nor do any inquiries appear to have been made as to whether Mr Tsikrakas had previously been involved in similar incidents or whether he had ever been accused in the past of displaying anti-Roma sentiment; nor, further, does any investigation appear to have been conducted into how the other officers of the Mesolonghi police station were carrying out their duties when dealing with ethnic minority groups. Moreover, the Court notes that, even though the Greek Helsinki Monitor gave evidence before the trial court in the applicants ’ case and that the possible racial motives for the incident cannot therefore have escaped the attention of the court, no specific regard appears to have been paid to this aspect, the court treating the case in the same way as one which had no racial overtones. 75. The Court thus finds that the authorities failed in their duty under Article 14 of the Convention taken together with Article 3 to take all possible steps to investigate whether or not discrimination may have played a role in the events. It follows that there has been a violation of Article 14 of the Convention taken together with Article 3 in its procedural aspect. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 76. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 1. Pecuniary damage 77. The first applicant claimed 4,540.80 euros (EUR) for loss of income over a period of twelve months after the incident. The second applicant claimed EUR 2,250 for loss of income over a period of six months after the incident. They further submitted that due to their injuries they were unable to resume their previous occupations. 78. The Government submitted that the applicants had not duly proved the existence of pecuniary damage and that their claims on this point should be dismissed. 79. The Court notes that the claims for pecuniary damage relate to loss of income, which was allegedly incurred over a period of twelve and six months respectively after the incident, and to alleged subsequent reduction of income. It observes, however, that no supporting details have been provided for these losses, which must therefore be regarded as largely speculative. For this reason, the Court makes no award under this head. 2. Non-pecuniary damage 80. The applicants claimed EUR 20,000 each in respect of the fear, pain and injury they suffered. 81. The Government argued that any award for non-pecuniary damage should not exceed EUR 10,000 for each applicant. 82. The Court considers that the applicants have undoubtedly suffered non-pecuniary damage which cannot be compensated solely by the findings of violations. Having regard to the specific circumstances of the case and ruling on an equitable basis, the Court awards each applicant EUR 10,000, plus any tax that may be chargeable on that amount. B. Costs and expenses 83. The applicants made no claim for costs and expenses. C. Default interest 84. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention, finding that the serious physical harm suffered by the applicants at the hands of the police, as well as the feelings of fear, anguish and inferiority which the impugned treatment had produced in them, must have caused them suffering of sufficient severity for the acts of the police to be categorised as inhuman and degrading treatment. The Court also held that there had been a violation of Article 3 on account of the lack of an effective investigation into the credible allegation made by the applicants that they had been ill-treated while in custody. The Court further held that there had been no violation of Article 14 (prohibition of discrimination) of the Convention taken together with Article 3 concerning the allegation that racist attitudes played a role in the applicants’ treatment by the police. The Court lastly held that there had been a violation of Article 14 taken together with Article 3 in that the authorities failed in their duty to take all possible steps to investigate whether or not discrimination might have played a role in the events at issue. |
326 | Issues under Article 8 (right to respect for private and family life) of the Convention | II. RELEVANT DOMESTIC LAW 30. The rights of entry and residence for foreigners were governed until 31 December 2004 by the Aliens Act ( Ausländergesetz ) and from 1 January 2005 by the Residency Act ( Aufenthaltsgesetz ). 31. By section 47(1), point 1, of the Aliens Act, a foreigner is to be expelled where he or she has been sentenced to a minimum of three years'imprisonment for having wilfully committed one or more criminal offences. 32. If a foreigner was born in Germany and is in possession of a permanent residence permit, he or she may only be expelled if serious reasons relating to public safety and order justify the expulsion (section 48(1)). Generally, this will be the case where section 47(1) applies ( Regelausweisung ). 33. Pursuant to section 8(2), an alien who has been expelled is not permitted to re-enter German territory. This effect can, as a rule ( in der Regel ), be limited in time upon application. A similar provision is contained in section 11 of the Residency Act. 34. According to section 44 (1) no.1 of the Aliens Act and section 51 (1) no. 5 of the Residency Act, an alien's residence permit expires on issue of an expulsion order against him. 35. Section 85 of the Aliens Act, as in force from 1 July 1993 until 31 December 1999, provided as follows: “(1) An alien who applies for naturalisation between the age of 16 and 23 shall be naturalised provided that he or she 1. loses or relinquishes his or her former nationality, 2. has been legally residing in Germany for eight years, 3. has attended a school for six years, including at least four years of attendance at a school providing general education, and 4. has not been convicted of a criminal offence. (2) There shall be no entitlement to naturalisation if the alien does not possess a residence permit. Naturalisation may be denied if there is a ground for expulsion.” 36. Section 27 of the Residency Act provides that a residence permit is to be granted for reasons of family reunion. By section 28, a residence permit is to be granted to a German national's spouse or minor child, or to the parent of a minor German national in order to exercise parental authority. THE LAW 37. The applicant complained that his expulsion had violated his right to respect for his private and family life under Article 8 of the Convention, which reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 1. The applicant's submissions 38. The applicant submitted that his expulsion had interfered with his rights under Article 8 under the limbs of both private and family life. This interference was disproportionate in view of the fact that he had lived his whole life in Germany, that he had not maintained any contact with Turkey and that his family relied on his support. Being the oldest son, he played a special role in the family. He had only poor knowledge of the Turkish language, as his parents originated from Bosnia and the family spoke Bosnian at home. This was not disproved by the fact that he had sent letters in Turkish to his mother from prison, as he had dictated the letters in German to his Turkish cellmate. 39. He further pointed out that both his parents had been suffering from depression since his brother had died in an accident several years earlier. The applicant's presence was essential for their well-being. In that connection, he submitted a medical certificate of 5 May 2000 attesting that both his parents were being treated for depression as a result of his current personal circumstances. 40. With regard to his criminal conviction, the applicant emphasised that he had been only twenty years of age at the time of the offences and that he had been addicted to drugs. He further pointed out that he had not committed the offences on his own, but jointly with a more experienced co-offender. 41. The offences had all been committed during a short period of not more than six months. Apart from that conviction, he had no criminal record, as the juvenile proceedings which had been discontinued when he was seventeen years old could not be taken into account in the present proceedings. He had come to terms during his detention with the reasons why he had committed the offences, and did not pose a risk to public safety. He further alleged that the domestic courts had failed to carry out a thorough assessment of the risk of his re - offending. He had not committed any further offences during the five years following his expulsion. 42. Even if allowed re-entry to Germany on the expiry of the period of validity of his exclusion order, he would not regain his former residence status. He would only obtain a limited residence permit, which he would lose if he separated from his wife within two years following re-entry. Furthermore, he would be compelled to serve the remainder of his prison sentence, which had been suspended in view of his deportation. By letter of 3 1 January 2007 the applicant informed the Court that he had not been granted a residence permit, as he had been unable to submit an attestation of his being registered as a resident. He alleged that the Turkish authorities did not issue such documents. 43. Lastly, the applicant alleged that an application for naturalisation prior to his criminal conviction would not have had any prospect of success, as at the time he had not earned enough money for his own upkeep. 2. The Government's submissions 44. In the Government's submission, the applicant's expulsion had interfered only with his right to the enjoyment of his private life, since by the time the expulsion order had become final he was an adult and had not yet founded a family of his own. The applicant had not established that he relied on his family's support or that his family relied on his support to an extent which necessitated his presence in Germany. The fact that the applicant's parents had suffered as a result of their separation from him and that this might lead to depression did not mean that they depended on his presence in Germany. Furthermore, the Government argued, the applicant's sister should also be in a position to offer them a certain amount of support. 45. The applicant's expulsion had been in accordance with the law and necessary for serious reasons relating to public order and security, namely the risk of his reoffending. 46. With regard to the question whether the domestic authorities had struck a fair balance between the competing interests at stake, the Government accepted that the applicant belonged to the group of so-called “second-generation” immigrants and was entitled to a higher degree of protection against expulsion. However, they submitted that the gravity of the offences committed by the applicant, which could not be regarded as mere examples of juvenile delinquency, justified his expulsion. In that connection, the Government emphasised the extreme brutality and the duration of his criminal activities, as well as the fact that the criminal court had identified him as the driving force behind the crimes committed jointly. Furthermore, the applicant had previously committed other violent acts. The fact that he consumed drugs further justified the assumption that he would commit additional crimes in order to procure drugs for himself. 47. The Government further submitted that the applicant had failed to integrate into the social and economic environment in Germany. Having finished his training as a car mechanic, he had not shown any inclination to find appropriate employment. His family of origin had not prevented him from committing criminal offences. In so far as his social prospects had improved through the founding of his own family, that could not be taken into account in the proceedings relating to his expulsion. The Government did not attach credence to the applicant's allegation that he had not maintained any contact with Turkey and that he did not have sufficient knowledge of the Turkish language. They pointed out that during his detention on remand he had written letters to his mother in Turkish. 48. The Government further emphasised that the applicant had not applied for naturalisation prior to his criminal conviction, even though he would have satisfied the necessary prerequisites laid down in section 85(1) of the Aliens Act, as in force until 31 December 1999 (see Relevant domestic law, above). 49. The Government lastly pointed out that the domestic authorities had had to decide on the setting of a time-limit in separate proceedings which did not form the subject matter of the present application. In its decision of 19 July 2004 the Karlsruhe Regional Government had carried out a fresh assessment of the competing interests at stake, including the applicant's new family bonds. They further pointed out that the applicant had failed to exhaust domestic remedies with respect to the duration of his exclusion, as he had not appealed against the Karlsruhe Administrative Court's judgment of 11 April 2006. 50. If he fulfilled the conditions set out in the decision of 19 July 2004 (see paragraph 27 above), he would be permitted to re-enter German territory. Having regard to his German wife and child, he would be granted a residence permit. By letters of 22 February and 7 March 2007 the Government further submitted that the applicant had presented the confirmation of registration and fulfilled all conditions set down in the Regional Government's decision of 19 July 2004 (see § 27 above). He was thus no longer prevented by the exclusion order from re-entering the German territory. 3. The Court's assessment a) General principles 51. The Court reiterates at the outset that the Convention does not guarantee the right of an alien to enter or to reside in a particular country and that a State is entitled, subject to its treaty obligations, to control the entry of aliens into its territory and their residence there. In pursuance of their task of maintaining public order, Contracting States have the power to expel an alien convicted of criminal offences. However, their decisions in this field must, in so far as they may interfere with a right protected under paragraph 1 of Article 8, be in accordance with the law and necessary in a democratic society, that is to say justified by a pressing social need and, in particular, proportionate to the legitimate aim pursued (see, most recently, Üner v. the Netherlands [GC], no. 46410/99, § 54, ECHR 2006 ‑ ... ). 52. As the Grand Chamber has affirmed in its Üner judgment, these principles apply regardless of whether an alien entered the host country as an adult or at a very young age, or was even born there. In particular, Article 8 of the Convention does not confer to persons who were born in a member State an absolute right not to be expelled from the territory of that State (see Üner, cited above, § § 55 -56 ). The Grand Chamber has further held that an alien's expulsion following his criminal conviction does not constitute double punishment, either for the purposes of Article 4 of Protocol No. 7 or in a more general way (see Üner, cited above, § 56). 53. Nevertheless, there are circumstances where the expulsion of an alien will give rise to a violation of Article 8 of the Convention and it is evident that the Court will have regard to the special situation of aliens who have spent most, if not all, of their childhood in the host country, where they were brought up and received their education (see for example Üner, cited above, § 58 ). 54. The relevant criteria to be used in order to assess whether an expulsion is necessary in a democratic society and proportionate to the legitimate aim pursued are the following ( Boultif v. Switzerland, no. 54273/00, § 40, ECHR 2001 ‑ IX; Üner, cited above, §§ 57-60): - the nature and seriousness of the offence committed by the applicant; - the length of the applicant's stay in the country from which he or she is to be expelled; - the time elapsed since the offence was committed and the applicant's conduct during that period; - the nationalities of the various persons concerned; - the applicant's family situation, such as the length of the marriage, and other factors expressing the effectiveness of a couple's family life; - whether the spouse knew about the offence at the time when he or she entered into a family relationship; - whether there are children of the marriage, and if so, their age; and - the seriousness of the difficulties which the spouse is likely to encounter in the country to which the applicant is to be expelled. 55. In the Üner judgment ( cited above, § 58), the Court made further explicit the following two criteria: - the best interests and well-being of the children, in particular the seriousness of the difficulties which any children of the applicant are likely to encounter in the country to which the applicant is to be expelled; and - the solidity of social, cultural and family ties with the host country and with the country of destination. b) Application of these principles to the instant case 56. Turning to the present case, the Court notes that the Government have not contested that the expulsion order imposed on the applicant constituted an interference with his private life. However, they considered that he could not claim to have had a family life within the meaning of Article 8 § 1. The Court notes, firstly, that the applicant was born in Germany, where he had legally resided, attended school and completed vocational training. It follows that the applicant's expulsion has to be considered as an interference with his right to respect for his private life guaranteed in paragraph 1 of Article 8. 57. The question whether the applicant also enjoyed family life within the meaning of Article 8 has to be determined with regard to the position at the time the exclusion order became final (see El Boujaïdi v. France, judgment of 26 September 1997, Reports of Judgments and Decisions 1997 ‑ VI, p. 1990, § 33; Yildiz v. Austria, no. 37295/97, § § 34 and 44, 31 October 2002; Yilmaz v. Germany, no. 52853/99, § § 37 and 45, 17 April 2003; and, implicitly Üner, cited above, § 64). The question as to when the expulsion order became final has to be determined by applying the domestic law. According to the domestic law, the complaint to the Federal Constitutional Court is devised as an extraordinary remedy which does not prevent the contested decision from becoming final. It follows that the expulsion order became final on 7 March 2001 when the Baden-Württemberg Administrative Court of Appeal refused to grant the applicant leave to appeal. The Court's task is thus to state whether or not the domestic authorities had complied with their obligation to respect the applicant's private and family life at that particular moment, leaving aside circumstances which only came into being after the authorities took their decision (see Yildiz, cited above, § 44). At that time, the applicant had not yet founded a family of his own, as he married in May 2002 and his child was born subsequently. 58. With regard to the applicant's relation to his family of origin, the Court notes that the applicant had been born in Germany, where he lived with his parents and sister until his arrest in January 1999. During his prison term, he kept in touch with his family, at least by writing letters to his mother. He further asserted that he played a special role in the family following the tragic death of his brother. Under these circumstances, the Court finds that the applicant's expulsion interfered to a certain degree also with his right to respect for his family life. 59. Such interference constitutes a violation of Article 8 unless it is “in accordance with the law”, pursues an aim or aims that are legitimate under paragraph 2 of Article 8 and can be regarded as “necessary in a democratic society”. 60. The applicant has not contested that his expulsion was in accordance with the relevant provisions of the Aliens Law and that it pursued a legitimate aim within the meaning of paragraph 2 of Article 8, namely the maintenance of public safety and the prevention of crime. 61. Accordingly, the Court's task consists in ascertaining whether the applicant's expulsion struck a fair balance between the relevant interests, namely the applicant's right to respect for his private and family life, on the one hand, and the maintenance of public safety and the prevention of crime, on the other, by applying the criteria set out above (see paragraphs 54 and 55 ), insofar as relevant. 62. With regard to the nature and gravity of the offences committed by the applicant, the Court notes that these were very serious, including two attempts of aggravated trafficking in human beings, of procuration and of several counts of battery. The domestic courts put special emphasis on the exceptional brutality with which the applicant had abused his victims, one of which having been his former partner. They further found that the applicant's offences demonstrated that he had not been willing to respect the rights and dignity of his fellow human beings. Insofar as the applicant, in his written submissions before the Court, attempted to shift responsibility for the jointly committed offences towards the co- defendant, the Court notes that the District Court, in its judgment, had identified the applicant himself as the driving force behind the actions. Although the applicant was twenty years of age when committing those criminal offences and did not have a previous criminal record, their nature and gravity exclude the possibility to regard them as mere examples of juvenile delinquency. Accordingly, the District Court did not find any reason to apply juvenile law to the applicant's deeds. The relatively moderate prison sentence of three years and four months was, according to the District Court, only owed to the fact that the applicant had confessed his crimes during the main hearing. 63. As to the applicant's conduct since the offences were committed, the Court observes that the time between his conviction and his deportation was spent in detention. While the applicant alleges that, during his detention, he had come to terms with the reasons why he had committed the offences and therefore did not pose a risk to public safety, he did not further substantiate by which means he had achieved that aim. 64. With regard to the applicant's personal ties to Germany, the Court considers at the outset that the applicant was born and spent all his life in Germany, where his parents had lawfully resided for thirty years and where he held a permanent residence status. In these circumstances, the Court does not doubt that the applicant had strong ties with Germany. That said, it cannot overlook the fact that the applicant, in spite of having completed his vocational training as a car-mechanic, had not integrated into the labour market, but lived for a certain period of time from the earnings he had forcefully extorted from his former partner. The Court further notes that the applicant did not, at any time prior to his criminal conviction, apply for naturalisation. According to the applicant, such request would not have had any prospect of success, as he had not been able to earn his upkeep. The Court notes, however, that section 85 of the Aliens Act as in force until 31 December 1999, which regulated the naturalisation of young adults, did not require that the respective person should be able to earn his or her upkeep. The Court is therefore not convinced that a request for naturalisation would have lacked prospect of success. 65. With regard to the applicant's ties with Turkey, the Court notes that he had visited this country only occasionally on holidays. He has, however, worked there for at least three weeks in July 1998. The Court further notes that the applicant, during his detention, wrote letters to his mother using the Turkish language. Even if it should be true that the applicant did not write these letter with his own hands, but dictated them to a cell-mate, this is an indication that the use of the Turkish language was not uncommon in the applicant's family of origin. 66. With regard to the applicant's relation to his family of origin, the Court notes that the applicant has lived with his parents and sister until his arrest in January 1999. The Court accepts that his parents, having lost one son in a tragic accident, suffered considerably from the separation from their second son, in spite of the presence of their daughter. It has, however, not been established that the parents should not have been able to maintain the relationship by visiting their son in Turkey. 67. As the Court has to determine the proportionality of the domestic decisions in the light of the position when the expulsion order became final in March 2001 (see, mutatis mutandis, El Boujaïdi, cited above, § 33, and the further references in paragraph 57, above ), the applicant cannot plead his relationship with his German wife, whom he married only after deportation to Turkey, and to their subsequently born child. 68. As to the proportionality of the impugned measure, the Court finally notes that the expulsion order issued against the applicant was not, from the outset, subject to a time-limit. In this context, the Court observes that in a number of cases it found a residence prohibition disproportionate on account of its unlimited duration (see, for instance, Ezzouhdi v. France, no. 47160/99, § 35, 13 February 2001; Yilmaz, cited above, § § 48-49, 17 April 2003; Radovanovic v. Austria, no. 42703/98, § 37, 22 April 2004; and Keles v. Germany, no. 32231/02, § 66, 27 October 2005 ) while, in other cases, it has considered the limited duration of a residence prohibition as a factor speaking in favour of its proportionality (see Benhebba v. France, no. 53441/99, § 37; Jankov v. Germany (dec.), no. 35112/92, 13 January 2000; and Üner, cited above, § 65). 69. Turning to the present case, the Court notes that domestic law provided that the exclusion from German territory could, as a rule, be limited in time upon separate request (see paragraph 33 above). There is nothing to indicate in the instant case that this possibility was merely theoretical. The Court further takes note of the Government's submissions that the applicant has in the meantime fulfilled the conditions attached to the time-limit and is no longer barred from entering German territory. Thus, it cannot be said that the applicant in this specific case was left without any perspective of returning to Germany. 70. The Court appreciates that the expulsion order imposed on the applicant had a serious impact on his private life and on the relationship with his parents. However, having regard to all circumstances of the case, and in particular to the seriousness of the applicant's offences, which cannot be trivialised as mere examples of juvenile delinquency, the Court does not consider that the respondent State assigned too much weight to its own interest when it decided to impose that measure. 71. In the light of the above, the Court finds that a fair balance was struck in this case in that the applicant's expulsion was proportionate to the aims pursued and therefore necessary in a democratic society. Accordingly, 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 and family life) of the Convention. It found that the applicant’s expulsion had been in accordance with the Convention, particularly given that he had been sentenced for rather serious offences in Germany, and had been eventually able to return to Germany. |
702 | Internet sites providing educational information | II. RELEVANT DOMESTIC LAW 28. The Constitution reads as follows: Article 25 “ Everyone shall have the right to have his own convictions and freely express them. No one must be hindered from seeking, receiving, or imparting information and ideas. The freedom to express convictions, as well as to receive and impart information, may not be limited otherwise than by law when this is necessary to protect human health, honour or dignity, private life, or morals, or to defend the constitutional order. The freedom to express convictions and to impart information shall be incompatible with criminal actions – incitement to national, racial, religious, or social hatred, incitement to violence or to discrimination, as well as defamation and disinformation. Citizens shall have the right to receive, according to the procedure established by law, any information held about them by State institutions. ” 29. The Code of the Execution of Sentences ( Bausmių vykdymo kodeksas ), as in force in the period between 1 June 2006 and 28 February 2010, read as follows: Article 10. Legal status of prisoners “ 1. Lithuanian citizens serving a sentence shall have all the rights, freedoms and duties established by law for the Lithuanian citizens with the restrictions established by law or the court judgment ... ” Article 11. General rights of prisoners “ 1. In accordance with the procedure set out by law, prisoners have a right: 1) to receive, in writing, information concerning the manner and conditions for serving the punishment, as well as information concerning their rights and duties ... 2) to address the correctional institution administration or the State or municipal institutions ... with proposals, requests and complaints ... ” Article 96. The right of prisoners to use televisions, computers, video and audio players, radios and playstations “ 1. Prisoners, other than those serving a sentence under the conditions of a disciplinary group, are allowed to use televisions, computers, video and audio players, radios, playstations and other items indicated in the Internal Rules of Correctional Facilities that were purchased using money held in their personal accounts or handed over by a spouse, partner or close relative. 2. Rules governing the use of televisions, computers, video players, radios, playstations and other items are set out in the Internal Rules of Correctional Facilities ... ” Article 99. Prisoners ’ right to correspondence “ 1. Prisoners are allowed to send and receive letters without restriction on their number. 2. Correspondence between prisoners kept in places of detention on remand, police custody or correctional institutions, other than between spouses or close relatives, is prohibited. 3. The administrative authorities of the correctional institution shall deliver letters received in the name of a prisoner and shall also send off letters handed to them by a prisoner within three working days of the receipt or handing in thereof. 4. The postage cost of sending such letters shall be covered by the prisoners. 5. In order to prevent crimes being committed, or to protect the rights and freedoms of others, letters received or sent by prisoners can be censored following a reasoned decision by a prosecutor, or the director of a correctional facility or a court decision. ” Article 100. Prisoners ’ right to submit proposals, applications, petitions and complaints to the State and municipal officials, to non-governmental organisations and to international institutions “ 1. Prisoners have the right to submit proposals, applications, petitions and complaints to State and municipal officials, to non-governmental organisations and to international institutions. If necessary, explanatory letters from the administrative authorities of a correctional facility may be attached to a prisoner ’ s proposal, application, petition or complaint. 2. The proposals, applications and complaints to State and municipal officials and to international institutions ... shall not be subject to censorship and shall be sent off within one day of their receipt by the prison authorities. 3. Replies to prisoners ’ proposals, applications, petitions and complaints shall be delivered to the prisoners and must be signed for ... 5. Prisoners are prohibited from sending anonymous or collective complaints to State or municipal institutions or officers. 6. Prisoners are prohibited from submitting to State and municipal institutions proposals, applications, petitions and complaints on behalf of other prisoners, nor may they submit them by means other than through the administrative authorities of the correctional facility. 7. The postage cost of sending such proposals, applications, petitions and complaints shall be covered by the prisoner concerned. ” Article 102. Prisoners ’ right to make a telephone call “ 1. Prisoners are allowed to make telephone calls. [The number of phone calls a prisoner may make depends of the severity of correctional institution and the disciplinary group that a prisoners belongs to]. 2. A prisoner may make a phone call [if he can cover the costs of that telephone conversation]. 3. Phone calls between prisoners kept in places of detention on remand, police custody or correctional institutions are prohibited ... ” Article 1 10. Special duties of prisoners who are serving prison sentences “ 1. Prisoners serving prison sentences must: 1) comply with the established rules for the correctional facilities; 2) comply with the demands of the correctional facility administrative authorities ... ” 30. Annex no. 1 to the Code of the Execution of Sentences, as in force in the period between 1 June 2006 and 28 February 2010, read: “ 1. List of prohibited items and articles ( daiktai ir reikmenys ) which may not be kept by prisoners serving a prison sentence: ( ... ) 6. ... telephones (their parts and accessories), means of radio communication ... ( ... ) 16. Topographic maps ... ” 31. As of 1 March 2010, the aforementioned Annex no. 1 reads: List of items and articles which are not permitted to be kept by persons serving a prison sentence: “ 6. ... telephones (their parts and accessories), and other means of electronic communication. ” 32. Annex no. 2 to the Code of the Execution of Sentences, as in force in the period between 1 June 2006 and 28 February 2010, read: List of tasks which persons serving a prison sentence may not carry out : “ 1. Tasks involving copying machines, radio and electronic communications ... ” 33. The Internal Rules of Correctional Facilities ( Pataisos įstaigų vidaus tvarkos taisyklės ), approved by the Minister of Justice order no. 194 of 2 July 2003, at the relevant time read: “ 192. The prisoners must submit proposals, requests, petitions or complaints in writing. Proposals, requests, petitions or complaints, which need to be sent out by post, must be handed to the correctional facility ’ s administration in a postal envelope ... “ 34. The Law on Education ( Švietimo įstatymas ) in force at the time when the applicant contacted the Ministry of Education and Science read: Article 26. Provision of information about education “ 1. The purpose of providing information about education is to furnish a person with information to help him or her choose the right education and education provider, as well as the aspired education and profession in line with his interests, dispositions and abilities. 2. A school shall make public the information about programmes of formal and non ‑ formal education implemented at schools, choices offered, terms of admission, paid services, teachers ’ qualifications, major school survey findings, and the traditions and achievements of the school community. 3. Vocational information and vocational guidance services shall include the provision of information about opportunities afforded by vocational training programmes, higher education study programmes ( aukštojo mokslo studijų programas ) ... employment prospects on the labour market in Lithuania, as well as consultations. This service shall be provided by schools, information centres, consultancy companies and labour exchanges ( darbo biržos ) in compliance with requirements laid down by the Minister of Education and Science and the Minister of Social Security and Labour. ” III. RELEVANT INTERNATIONAL MATERIALS 35. In the Second General Report on its activities (CPT/Inf (92) 3 [EN]), published on 13 April 1992, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (hereinafter, “the CPT”) noted the following in relation to conditions of imprisonment: “47. A satisfactory programme of activities (work, education, sport, etc.) is of crucial importance for the well-being of prisoners. This holds true for all establishments, whether for sentenced prisoners or those awaiting trial. The CPT has observed that activities in many remand prisons are extremely limited. The organisation of regime activities in such establishments – which have a fairly rapid turnover of inmates – is not a straightforward matter. Clearly, there can be no question of individualised treatment programmes of the sort which might be aspired to in an establishment for sentenced prisoners. However, prisoners cannot simply be left to languish for weeks, possibly months, locked up in their cells, and this regardless of how good material conditions might be within the cells. The CPT considers that one should aim at ensuring that prisoners in remand establishments are able to spend a reasonable part of the day (8 hours or more) outside their cells, engaged in purposeful activity of a varied nature. Of course, regimes in establishments for sentenced prisoners should be even more favourable. ” 36. Other Council of Europe and international law documents concerning the role of Internet in connection to the right to receive and impart information are quoted in Kalda v. Estonia (no. 17429/10, §§ 23-25, 19 January 2016). THE LAW I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 37. The applicant complained that he had not had Internet access in prison. He argued that this had prevented him from receiving education ‑ related information, in breach of Article 10 of the Convention. This provision reads: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. ” A. The submissions by the parties 1. The applicant 38. The applicant contended that the restriction of inmates ’ use of the Internet in prison was not prescribed by law. The legislation relied on by the Government, namely point 6 of Annex 1 to the Code of the Execution of Sentences (see paragraph 30 above), which explicitly prohibited prisoners from having telephones and other means of communication such as radios, could not be regarded as formulated with sufficient precision to be foreseeable and therefore as meeting the Court ’ s standards. The fact that none of the legal rules clearly and unambiguously stated that prisoners may not be granted access to the Internet was further supported by the fact that Article 96 of the Code of the Execution of Sentences allowed prisoners to use computers and radios (see paragraph 29 above). The Government themselves stated that the restriction on Internet use by prisoners was only implicit, and was derived systemically from the regime applicable to prisoners per se. 39. The applicant further argued that in his case restricting the use of Internet in prison had had no connection with the aim of preventing crimes or other offences. In fact, he had requested Internet access only to the website indicated to him by the Ministry of Education and Science, and only to obtain specific information, that is to say, information about distance learning possibilities and programmes in Lithuania. 40. Lastly, the prohibition had not been proportionate. The Ministry of Education and Science, which was a competent State authority in the field of education in Lithuania, had explicitly told the applicant that all the information of interest about the possibilities for distance learning in higher education and study programmes was accessible via the Ministry ’ s official website at < www.aikos.smm.lt >. The Ministry, as the official body responsible for providing information about study programmes, had indicated no alternative ways or means for the applicant to obtain that information. The applicant further submitted that information about study programmes and the opportunities for distant studies was of a constantly evolving nature. The educational establishments usually updated such information in the course of the year. Accurate information was therefore only available on the Internet and without Internet access the applicant had no means of obtaining the information necessary to pursue his studies. The applicant lastly pointed out that a number of States permitted limited Internet access in prisons for educational purposes, thus showing that the absolute restriction that existed in Lithuania was disproportionate. 2. The Government 41. The Government argued that the applicant had not properly exhausted the available domestic remedies, because he had not complained about the Ministry ’ s response in separate court proceedings − a fact which the prison authorities found incomprehensible. To the Government ’ s knowledge, neither had the applicant made enquiries directly to higher education establishments in Lithuania which provided legal studies. 42. Alternatively, the Government submitted that the complaint was manifestly ill-founded, as the denial of one particular means of receiving information could have been circumvented by using other means available to the applicant. 43. As the third alternative, the Government submitted that the complaint was inadmissible for the applicant had not suffered a significant disadvantage, because he had followed certain courses in the Pravieniškės Correctional Home and could obtain information sought by other means (see paragraph 46 below). The applicant ’ s complaints had been examined by the domestic courts, which had come to reasoned decisions. The Government also considered that there was clear case-law of the Court to the effect that States ’ positive obligations under Article 10 were not interpreted as requiring them to provide a particular form of access to information for prisoners. 44. Should the Court nevertheless find that there had been an interference with the applicant ’ s right to receive information, the Government considered that that interference had had a basis in law. The implicit prohibition of prisoners ’ use of the Internet stemmed from the statutory prohibition of the use of telephones and radios as communication devices, and this had been properly examined by the domestic courts in 2007. Taking into account the technological developments, the Code of the Execution of Sentences had been amended in 2010 in order to explicitly include a prohibition of the use of means of electronic communication by prisoners (see paragraph 31 above). 45. The prohibition of Internet access in prison was aimed at preventing crime, given that the Internet could be used as a means of communication like other prohibited items, such as mobile phones, which prisoners sometimes use illegally from inside prison to commit new crimes − particularly telephone fraud − or to influence participants in criminal proceedings. 46. The Government also considered that the interference had been necessary and proportionate. As noted by the Supreme Administrative Court, the wide scope of opportunities afforded by the Internet could pose a threat to the rights of other persons. This, in turn, would require “ huge efforts ” by the prison authorities to prevent any such potential illegal acts. The Internet was only one means of receive information, and the prisoners could effectively exercise that right by other means, such as by postal correspondence (letters) via the prison authorities. In the present case, the information which the applicant sought was available in various forms – the information concerning admission to educational institutions is announced in the press, special publications are printed, and such information could also have been imparted by the applicant ’ s relatives. Prisoners may also receive information concerning the possibility of studies in social rehabilitation units or correctional institutions. General and vocational education was organised in Lithuania in prisons so as to guarantee the inmates ’ the right to education, and the applicant had made use of those possibilities whilst serving his sentence (see paragraphs 20 and 21 above). 47. The Government pointed out that, whereas in his initial request of 28 June 2006 to the prison authorities the applicant had specifically asked for access to the Ministry ’ s website (see paragraph 8 above), in his lawsuit of 1 August 2006 before the Kaunas Regional Administrative Court (see paragraph 13 above) the applicant had asked for general access to the Internet, instead of complaining about his inability to obtain some particular information. As noted by the Lithuanian courts, the applicant also sought access to his email accounts, whereas the Convention institutions had already accepted that certain limitations as regards prisoners ’ correspondence did not infringe the guarantees of Articles 8 and 10 of the Convention (the Government relied on the Commission decision in X v. the United Kingdom, no. 5270/72, 8 July 1974). 48. Lastly, Government argued that most of the Council of Europe member States restricted Internet use in correctional institutions. B. The Court ’ s assessment 1. Admissibility 49. The Court notes first of all that before the domestic courts the applicant challenged the decision by the Pravieniškės Correctional Home authorities, under whose effective control he was, not to grant him Internet access. For the applicant, such access was indispensable for the purposes of obtaining education - related information (see paragraph 17 above). The Court has also recently observed that an increasing amount of services and information is available only via the Internet (see Kalda v. Estonia, no. 17429/10, § 52, 19 January 2016 ). That being so, and given that the applicant ’ s complaint is construed as concerning the right to receive information – thus falling under Article 10 of the Convention − as opposed to a complaint about the denial of education as such, the Court rejects the Government ’ s objection concerning the failure to properly exhaust the domestic remedies by, firstly, not having written letters to Lithuanian educational institutions in Lithuania and by, secondly, not having pursued court proceedings against the Ministry (see paragraph 41 above). As to the first avenue, it was not even a remedy within the sense of Article 35 § 1 of the Convention. As to the second avenue, the Court notes that as a remedy for his grievance of lack of access to information the applicant chose to pursue court proceedings against the Pravieniškės Correctional Home which had effectively barred him from accessing the Ministry ’ s website. In this context the Court recalls that in the event of there being a number of domestic remedies which an individual can pursue, that person is entitled to choose a remedy which addresses his or her essential grievance. In other words, when a remedy has been pursued, use of another remedy which has essentially the same objective is not required (see Leja v. Latvia, no. 71072/01, § 4 6, 14 June 2011 ). 50. The Court also considers that the Government ’ s objection about the applicant not having suffered a significant disadvantage (see paragraph 43 above) is intrinsically linked to the merits of the applicant ’ s complaint. Accordingly, it must be joined to the merits. 51. The Court furthermore finds that this complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention, nor is it inadmissible on any other grounds. It must therefore be declared admissible. 2. Merits (a) On the existence of an interference 52. The Court has consistently recognised that the public has a right to receive information of general interest. Furthermore, the Court has held that the right to receive information basically prohibits a Government from preventing a person from receiving information that others wished or were willing to impart (see Kalda, cited above, §§ 41 and 42). 53. In the present case, however, the question at issue is not the authorities ’ refusal to release the requested information ( compare and contrast Magyar Helsinki Bizottság v. Hungary [GC], no. 18030/11, § § 149 ‑ 156, 8 November 2016 ); the applicant ’ s request concerned information that was freely available in the public domain. Rather, the applicant ’ s complaint concerns a particular means of accessing the information in question: namely, that he, as a prisoner, wished to be granted access – specifically via the Internet – to information published on a website belonging to the Ministry of Education and Science (see paragraph 7 above). 54. In this connection, the Court reiterates that in the light of its accessibility and its capacity to store and communicate vast amounts of information, the Internet plays an important role in enhancing the public ’ s access to news and facilitating the dissemination of information in general ( see Delfi AS v. Estonia [GC], no. 64569/09, § 133, ECHR 2015; Ahmet Yıldırım v. Turkey, no. 3111/10, § 48, ECHR 2012; and Times Newspapers Ltd v. the United Kingdom (nos. 1 and 2), nos. 3002/03 and 23676/03, § 27, ECHR 2009). 55. Nevertheless, the Court notes that imprisonment inevitably entails a number of restrictions on prisoners ’ communications with the outside world, including on their ability to receive information. It considers that Article 10 cannot be interpreted as imposing a general obligation to provide access to the Internet, or to specific Internet sites, for prisoners (see Kalda, cited above, § 45). However, in the circumstances of the present case, since access to information relating to education is granted under Lithuanian law (see paragraph 34 above ), the Court is ready to accept that the restriction of access to the Internet site to which the Ministry referred the applicant in reply to his request to provide information constituted an interference with the right to receive information. (b) Whether the interference was justified 56. The above-mentioned interference contravened Article 10 of the Convention unless it was “ prescribed by law”, pursued one or more of the legitimate aims referred to in paragraph 2 of that Article and was “necessary in a democratic society” for achieving such aim or aims. The Court will examine each of these criteria in turn. (i) Whether the interference was prescribed by law 57. The parties have disputed whether the restriction of prisoners ’ use of the Internet had a basis in domestic law. The Court acknowledges that in 2006, when the applicant requested Internet access in the Pravieniškės Correctional Home, no such explicit prohibition on the use of Internet in prisons existed. The ban on the use of “ other means of electronic communication ”, which could be understood as also encompassing means providing Internet access, was only introduced in March 2010 in Annex no. 1 of the Code of the Execution of Sentences (see paragraph 31 above). Be that as it may, the Court notes that in 2006 numerous domestic legal norms did indeed provide for an explicit ban on telephone and radio communications by prisoners, prohibited the prisoners from working with radio and electronic communication devices, and required that all correspondence by prisoners ’ be conducted in writing and sent by post via the prison authorities (see paragraphs 29, 30 and 32 above). It is not unreasonable to hold that all those prohibitions could have been circumvented, if prisoners were allowed access to Internet. The Court therefore does not consider that the applicant was left without an indication that there was a prohibition on the use of the Internet in prison. It therefore concludes that the prohibition on the inmates ’ use of the Internet in prison was “prescribed by law” within the meaning of Article 10 § 2 of the Convention. (ii) Whether the interference pursued a legitimate aim 58. The Court also accepts the Government ’ s argument (see paragraph 45 above ) that the interference in question served the aim of protecting the rights of others and preventing disorder and crime (see Kalda, cited above, § 47). This was moreover noted by the Pravieniškės Correctional Home authorities, as well as by the administrative courts of two instances (see paragraphs 14, 16 and 19 above). The Court accepts that the domestic courts must have knowledge of the situation prevailing in the country when a number of telephone fraudsters from prisons had already cheated people of large sums of money. (iii) Whether the interference was “ necessary in a democratic society” 59. The Court notes that the website to which the applicant wished to have access contained information about learning and study programmes in Lithuania. The information on that site was regularly updated to reflect, for example, admission requirements for the current academic year. It also provided up to date information from the Lithuanian Labour Exchange about job vacancies and unemployment (see paragraph 7 above). It is not unreasonable to hold that such information was directly relevant to the applicant ’ s interest in obtaining education, which is in turn of relevance for his rehabilitation and subsequent reintegration into society. As underlined by the CPT, a satisfactory programme of activities, including education, is of crucial importance for the well-being of all detainees, including prisoners awaiting trial. This is all the more relevant in relation to sentenced prisoners (see paragraph 35 above), and the applicant, who was serving a sentence in the Pravieniškės Correctional Home, was one such prisoner (see paragraph 5 above). In fact, as regards the Pravieniškės Correctional Home, the CPT specifically noted after its 2008 visit that steps should be taken to ensure that all sentenced prisoners in that prison were able to engage in purposeful activities of a varied nature, such as educational programmes (see point 49 in fine of the CPT report, quoted in Mironovas and Others v. Lithuania, nos. 40828/12, 29292/12, 69598/12, 40163/13, 66281/13, 70048/13 and 70065/13, § 65, 8 December 2015 ). 60. The Court also considers that accessing the AIKOS website in the manner advised by the Ministry of Education and Science – namely browsing through it in order to find information that was relevant – was more efficient than making requests for specific information, as was proposed by the Government (see paragraph 4 6 above). Indeed, in order to make a specific request to an educational institution one would need to be aware of the competencies of that institution and the services provided by it. Such preliminary information would be provided by the AIKOS website. The Court furthermore notes the applicant ’ s argument that the information about the study programmes was of a constantly evolving nature (see paragraph 40 above). This fact is also highlighted on the AIKOS website itself (see paragraph 7 above). 61. Turning to the Lithuanian authorities ’ decisions, the Court cannot but observe that they essentially focussed on the legal ban on prisoners having Internet access as such, instead of examining the applicant ’ s argument that access to a particular website was necessary for his education (see paragraphs 10, 12, 14, 15, 16 and 19 above). It is true that the Pravieniškės Correctional Home authorities pointed out the presence of a secondary school in that prison, as well as the possibility of following computer courses at Elektrėnai vocational school (see paragraph 18 above). However, this appears to be a very remote proposition in relation to the applicant ’ s wish to acquire a second university degree (see paragraph 6 above). In the present case the Court also observes that the prison authorities or the Lithuanian courts did not even go so far as to argue that extended Internet access could incur additional costs for the State (see paragraphs 14, 15, 16 and 19 above). Whilst the security considerations arising from prisoners ’ access to Internet, as such, and cited by the prison authorities (see paragraph 14 above ) may be considered as relevant, the Court notes that the domestic courts failed to give any kind of consideration to the fact that the applicant asked for access to a website created and administered by the Ministry of Education and Science, which was a State institution. In fact, both courts were completely silent on the matter of education (see paragraphs 16 and 19 above). 62. Lastly, the Court is mindful of the fact that in a number of the Council of Europe ’ s and other international instruments the public-service value of the Internet and its importance for the enjoyment of a range of human rights has been recognised. Internet access has increasingly been understood as a right, and calls have been made to develop effective policies to achieve universal access to the Internet and to overcome the “digital divide” ( see Kalda, cited above, § 52 ). The Court considers that these developments reflect the important role the Internet plays in people ’ s everyday lives, in particular since certain information is exclusively available on Internet. Indeed, as has already been established in this case, the AIKOS website provides comprehensive information about learning possibilities in Lithuania. In this connection it is also noteworthy that the Lithuanian authorities did not even consider a possibility of granting the applicant limited or controlled Internet access to this particular website administered by a State institution, which could have hardly posed a security risk. 63. In these circumstances, the Court is not persuaded that sufficient reasons have been put forward in the present case to justify the interference with the applicant ’ s right to receive information. Moreover, having regard to the consequences of that interference for the applicant (see paragraphs 59 ‑ 61 above), the Government ’ s objection that the applicant had not suffered significant disadvantage (see paragraph 50 above) must be dismissed. 64. The Court concludes that the interference with the applicant ’ s right to receive information, in the specific circumstances of the present case, cannot be regarded as having been necessary in a democratic society. There has accordingly been a violation of Article 10 of the Convention. II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 65. In another application form which the applicant signed on 28 August 2008, and which the Court received on 12 September 2008, the applicant further complained about the seizure of his computer and the conditions of his detention in Lukiškės Prison. Given that the Supreme Administrative Court adopted a final decision in the set of proceedings concerning these issues on 12 October 2007 (see paragraph 24 above), the Court finds that this complaint has been lodged out of time and is therefore inadmissible, in accordance with Article 35 §§ 1 and 4 of the Convention. 66. In the application form which the applicant signed on 11 November 2008, and which the Court received on 5 December 2008, the applicant complained of being denied extended visits in the Pravieniškės Correctional Home. The Court notes, however, that the domestic proceedings in connection with this complaint ended with the Supreme Administrative Court ’ s decision of 6 February 2008 (see paragraph 2 7 above). It follows that this complaint must likewise be dismissed as being lodged out of time, in accordance with Article 35 §§ 1 and 4 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 67. 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 68. The applicant claimed 30,000 euros (EUR) in respect of non ‑ pecuniary damage. 69. The Government disputed the claim as unfounded and excessive. 70. The Court considers that in the circumstances of this case the finding of a violation constitutes in itself sufficient just satisfaction for any non ‑ pecuniary damage sustained by the applicant (see, mutatis mutandis, Kalda, cited above, § 58). B. Costs and expenses 71. The applicant claimed reimbursement of costs, without specifying the sum claimed. 72. The Government made no comment on this issue. 73. The Court notes that the applicant was granted legal aid under the Court ’ s legal aid scheme, under which the sum of EUR 850 has been paid to the applicant ’ s lawyer to cover the submission of the applicant ’ s observations and additional expenses. In the absence of any specific claims by the applicant as well as any supporting documents, the Court decides to make no award under this head. | The Court was not persuaded that sufficient reasons had been put forward by the Lithuanian authorities to justify the interference with the applicant’s right to receive information which, in the specific circumstances of the case, could not be regarded as having been necessary in a democratic society. It therefore held that there had been a violation of Article 10 of the Convention. The Court noted in particular that Article 10 could not be interpreted as imposing a general obligation to provide access to the Internet, or to specific Internet sites for prisoners. However, since access to information relating to education was granted under Lithuanian law, the restriction of access to the Internet site in question had constituted an interference with the applicant’s right to receive information. That interference was prescribed by law and pursued the legitimate aim of protecting the rights of others and preventing disorder and crime. However, the website to which the applicant wished to have access contained information about learning and study programmes in Lithuania, and it was not unreasonable to hold that such information was directly relevant to the applicant’s interest in obtaining education, which was in turn relevant for his rehabilitation and subsequent reintegration into society. The Court also observed that the Internet played an important role in people’s everyday lives, in particular since certain information was exclusively available on the Internet. The Lithuanian authorities had however not considered the possibility of granting the applicant limited or controlled Internet access to that particular website administered by a State institution, which could hardly have posed a security risk. |
393 | Mass hunger strikes and use of force by the authorities | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Constitution of Ukraine 1996 196. The relevant provisions read as follows: Article 3 “An individual, his life and health, honour and dignity, inviolability and security shall be recognised in Ukraine as the highest social value. Human rights and freedoms, and the guarantees thereof shall determine the nature and course of the State’s activities. The State shall be responsible to the individual for its activities. Affirming and ensuring human rights and freedoms shall be the main duty of the State. ...” Article 28 “Everyone shall have the right to have his dignity respected. No one shall be subjected to torture, cruel, inhumane, or degrading treatment or punishment that violates his dignity. ...” Article 63 “A person shall not bear responsibility for refusing to testify or to provide explanations about himself/herself .... ... A convicted person shall enjoy all human and civil rights, with the exception of restrictions determined by law and established by a court verdict.” B. Code on the Enforcement of Sentences 2003 197. Article 18 lists the types of penal institution in operation. Those convicted for the first time for negligent, minor or medium-severity crimes serve their sentences in minimum security institutions. 198. Article 106 sets out the rules governing the use of force in prisons. Prison officers are entitled to use force with a view to putting an end to physical resistance, violence, rowdiness ( буйство ) and opposition to lawful orders of the prison administration, or with a view to preventing prisoners from inflicting harm on themselves or on those around them. The use of force should be preceded by a warning if the circumstances so allow. If the use of force cannot be avoided, it should not exceed the level necessary for fulfilment by the officers of their duties, should be carried out so as to inflict as little injury as possible and should be followed by immediate medical assistance if necessary. Any use of force must be immediately reported to the prison governor. C. Code of Criminal Procedure 1960 199. The relevant provisions concerning the obligation to investigate crimes can be found in the judgment concerning the case of Davydov and Others v. Ukraine (nos. 17674/02 and 39081/02, § 112, 1 July 2010). D. The Internal Regulations of Penal Institutions ( Правила внутрішнього розпорядку установ виконання покарань ) approved by Order no. 275 of the State Prisons Department of 25 December 2003 200. Paragraph 58 of the Internal Regulations provides for the possibility of the Prisons Department’s special forces units and human resources from other penal institutions being involved in the conduct of search and security operations. Prior notification of and monitoring by the prosecutor in charge of supervision of compliance with the law in penal institutions are required. 201. Section XII “Grounds for the use of measures of physical coercion, means of special restraint and arms” reads as follows in the relevant part: 59. Use of physical force and means of special restraint “The personnel of a penal institution shall be entitled to resort to measures of physical coercion, including martial arts techniques, with a view to putting an end to offences by prisoners or overcoming their resistance to legitimate requirements of the prison administration, if other methods have failed to ensure compliance with their duties. The type of special restraint [used], the time of the commencement and the intensity of its application shall be defined with regard to the situation, the nature of the offence and the personality of the perpetrator. The application of force or of a means of special restraint shall be preceded by a warning about the intention [to use it], if the circumstances so allow. This does not apply to situations in which it is necessary to counter a sudden attack against the institution’s personnel or to free hostages. The warning should be announced verbally. Where there is a significant distance [involved] or where the warning is addressed to a large group it should be given with the help of a loudspeaker. In any case it is desirable that it be given in the mother tongue of the persons against whom the measures in question would apply. Every case of handcuffing, resort to a straitjacket or application of other measures of restraint or arms shall be reported in the change of shift logbook.” 60. Procedure of and grounds for handcuffing “Handcuffing may be applied to prisoners upon an order of the institution’s governor, his/her deputies or assistants on duty. Handcuffing may be applied to prisoners in the following cases: (a) physical resistance to the administration personnel on duty or guards, or manifestations of rowdiness; (b) refusals to be taken to a disciplinary or solitary confinement cell or [an ordinary] cell; (c) an attempt to commit suicide, self-harm or assault of others; (d) return of a prisoner apprehended following an escape. Handcuffing is applied to prisoners in the position “hands behind the back”. The state of health of a handcuffed prisoner should be checked every two hours. Handcuffing shall be ceased following an order of those who gave a direction about its application or following an order of a higher-ranked official. A report shall be drawn up about [the use of] handcuffing. Persons who have applied handcuffing without grounds [to do so] shall be held responsible.” 61. Procedure of and grounds for the use of teargas, rubber truncheons and physical force “The personnel of a penal institution shall have the right to use teargas, rubber truncheons or physical force at their discretion in the following cases: (a) defence of the institution’s personnel, or self-defence from attacks or other actions jeopardising their lives or health; (b) putting an end to a mass riot or grouped disobedience by prisoners; (c) countering an attack on premises or transport vehicles, or their liberation in case of occupation; (d) apprehension or taking of prisoners who have committed gross violations of the prison rules to a disciplinary or solitary confinement cell or [an ordinary] cell, if they resist the guards on duty or if there are reasons to believe that they might cause harm to themselves or others; (e) putting an end to resistance to personnel on duty or guards or the prison administration; (f) apprehension of prisoners following an escape from prison; (and) (g) liberation of hostages. A special report shall be drawn up about the application of teargas, rubber truncheons or physical force. The institution’s governor or his replacement shall study the report and register it in a special logbook. A copy shall be kept in the prisoner’s personal file. ... Blows with rubber truncheons to the head, the neck, the collarbone, the stomach and the genitals are prohibited. Blows with a side-handle (tonfa) plastic truncheon to the head, the neck, the solar plexus, the collarbone, the lower part of the stomach, the genitals, the kidneys, and the coccyx are prohibited. These prohibitions are not however applicable to situations in which there is a real danger to the life or health of the institution’s personnel or prisoners. Application of these means of restraint in excess of the power [granted] shall call for the legally envisaged liability.” E. Instruction “On supervision of prisoners serving sentences in penal institutions” ( Інструкція з організації нагляду за засудженими, які відбувають покарання у кримінально-виконавчих установах ), approved by Order no. 205 of the State Prisons Department of 22 October 2004 (restricted document, submitted by the Government at the Court’s request) 202. Pursuant to paragraph 27.4 of the Instruction, physical force, means of special restraint, a straitjacket or arms may be used on prisoners under the Code on the Enforcement of Sentences, the Police Act and the Internal Regulations of Penal Institutions in the event of physical resistance to prison personnel, malicious disobedience to their lawful orders, rowdiness ( буйство ), participation in rioting, hostage-taking or other violent actions, or with a view to preventing prisoners from inflicting harm on themselves or on those around them. A report in that regard should be drawn up. 203. The Instruction also establishes a procedure for searching prisoners, the residential wings and workshop premises inside penal institutions. 204. According to paragraph 35 of the Instruction, searches of prisoners and premises are to be conducted on the basis of a schedule approved by the prison governor. The search is to be conducted with the participation of the institution’s personnel, special forces units of the Prisons Department, and additional forces from other penal institutions. 205. Searches and inspections are to involve technical equipment and, if necessary, specially trained dogs. It is prohibited to damage clothes, property, prison equipment and other objects in the course of the searches or inspections (paragraph 36). 206. Personal searches of the prisoners may be “full” (that is, with the removal of all clothing) or “partial” (without the removal of clothing). Personal searches are to be conducted by a person of the same sex as the prisoner. The staff members who conduct a search must be careful and rigorous and must act properly. They must also comply with security measures and not allow any kind of inhuman or degrading treatment of the searched prisoner (paragraph 37). 207. According to paragraph 38 of the Instruction, a full search of a prisoner is to be carried out upon his or her arrival at or departure from the prison, upon placement in a disciplinary or isolation cell, upon transfer to a solitary confinement cell or to the high security wing and upon release from there. Such a search is also to be conducted after the apprehension of a prisoner following an attempted escape or other offence, before and after a long-term meeting with third parties from outside the institution, and in other cases when it might be necessary. Inmates who are subjected to a full search are asked to hand in any prohibited items, and must then remove their hat, clothes, shoes and undergarments. After these demands are complied with, separate parts of the prisoner’s body and his clothes and shoes are inspected according to the standard procedure. Full searches are to be carried out in specialised premises or rooms near the prison’s entry checkpoint or in other separate premises. Partial searches are to be conducted when prisoners leave for work and return from it, or in other specially designated places. 208. Under paragraph 40, a prisoner who violates the prison rules or commits an offence is to raise his hands above his head and stretch out his legs. The searching person is to stay behind him. In certain instances, if the prisoner is likely to possess weapons he is to be invited to lean against the wall facing forward and stretch out his legs. The search is to be conducted by at least two staff members for security reasons. 209. Paragraph 41 of the Instruction provides that a search of the premises and inspection of the residential wings and workshop is to be conducted when they are empty, according to the timetable envisaged by the calendar of searches. Every section shall be searched as required, but not less than at least once a month. Searches are to be supervised by the first deputy prison governor or by the head of the supervision and security division on the instructions of the first deputy. 210. According to paragraph 43 of the Instruction, a general search shall be conducted on the basis of a decision by and under the leadership of the prison governor and under the supervision of the territorial office of the Prisons Department at least once per month or in response to a complication in the operational situation. During a general search, all prisoners, the residential wings and the workshop, and all premises and installations on their grounds, are to be inspected. A search is to be conducted on the basis of the plan prepared jointly by the first deputy governor and the head of the supervision and security division. If additional forces and resources are involved, the plan must be approved by the Head of the relevant Regional Office of the Prisons Department and the prosecutor responsible for supervision of the legality of enforcement of sentences must be notified. 211. As specified in paragraph 50, in the course of a general search prisoners must be gathered in special separate premises and subjected to an individual search. The residential premises must also be searched, in the usual manner, and with the participation of the head of the department of social and psychological services. Furniture and items contained in the wing, sleeping places, including linen, pillows and mattresses, and various personal objects shall also be inspected. The walls, floor, windows and ceiling are to be inspected for secret storage places and manhole hatches. All the utility rooms ( підсобні приміщення ) in the residential wing shall be searched, with mandatory replacement and inspection of all the items there. Unnecessary everyday clothes or other items that should not be there shall be seized and stored in premises designated for that purpose. 212. The residential and administrative buildings, their interior and exterior, the cellars and garrets, different communication channels, barriers, toilets, sports grounds, underground tunnels and other places where there could possibly be secret storage areas are also to be inspected (also paragraph 50). 213. Every disciplinary or solitary confinement cell shall be inspected meticulously. All walls, ceilings and floors are to be knocked on for the purpose of finding secret storage areas and passages. The grating shall be inspected too, with special attention paid to cuts, score marks and other evidence of deterioration. The operational capacity of the doors, bolts and locks, and the reliability of the fixings of beds, tables and other furniture shall also be checked. Inmates held in those cells shall be subjected to a full personal search and their clothing shall also be inspected (still paragraph 50). 214. The heads of the search groups are to report to the officer supervising the search, and general statements are to be drawn up noting the basis of the search and signed by the supervising officer and the heads of the search groups. Such statements are to be forwarded to the supervision and security division (paragraph 50.1). 215. Pursuant to paragraph 50.2, representatives of the territorial office of the Prisons Department together with the prison management shall make a tour of the residential wings and the workshop after the search and shall question the prisoners in respect of any complaints or statements. The results are to be reflected in the general search report. 216. The prison administration must take measures aimed at establishing the owners and traffickers of any prohibited items identified by the search and punishing them accordingly. Official inquiries should be carried out in respect of the seized items (paragraph 50.3). F. The Special Forces Units Regulations ( Положення про підрозділ спеціального призначення ) approved by Order no. 167 of the State Prisons Department of 10 October 2005 (in force until 14 January 2008) 217. The Regulations replaced the previous Regulations established by Order no. 163 of 8 September 2003 “On the creation of special units of the Prisons Department, approval of staffing needs and Regulations governing these units” (not publicly accessible). 218. Section 1.1 of the Regulations of 2005 defined a special forces unit as follows: “A special forces unit ... is a paramilitary formation created under a territorial office of the State Prisons Department.” 219. Section 2 defined the tasks of a special forces unit as follows: “2.1. Prevention of, and putting an end to, terroristic criminal offences in penal institutions; and 2.2. prevention of, and putting an end to, actions disrupting the work of prisons and pre-trial detention centres.” 220. Section 3 listed, inter alia, the following functions of a special forces unit: “3.4. Ensuring law and order [through the] introduction of a special regime in [a prison] ... in case of ... manifestation of mass disobedience by prisoners ..., or in case of a real danger of armed attack on [a prison’s] property, with a view to termination of illegal activities of a group of prisoners ... and elimination of their consequences. 3.5. Conduct of inspections and searches of prisoners ... and their belongings ..., of transport vehicles on the grounds of [a prison] ..., as well seizure of prohibited items and documents. A personal search shall be carried out by persons of the same sex as the person searched.” 221. The provisions regulating the organisation of a special forces unit’s activities (section 4) read as follows in the relevant part: “4.4. The unit’s personnel shall carry out their professional duties wearing everyday clothes or a special uniform with distinctive signs or symbols. ... 4.6. During the fulfilment of their duties the unit’s personnel shall have the right to resort to physical coercion, to keep and wear special means of restraint and arms, to use and apply them independently or within the unit, in compliance with the procedure and in the cases envisaged by the Code on the Enforcement of Sentences, the Police Act, and other laws of Ukraine. ... 4.8. Actions of the unit’s personnel during special operations must be based on strict compliance with the laws of Ukraine, respect for the norms of professional ethics, and a humane attitude towards prisoners and detainees.” 222. On 26 December 2007 the Ministry of Justice of Ukraine repealed the Order of 2005 with effect from 14 January 2008, making reference to Expert Opinion no. 15/88 of the Ministry of Justice, relying, in turn, on the Opinion of the Secretariat of the Agent of the Government of Ukraine before the European Court of Human Rights of 21 November 2007 (not available in the case file before the Court), according to which those Regulations did not comply with the European Convention on Human Rights and Fundamental Freedoms and the Court’s case-law. G. Extracts from the Report of the Parliamentary Commissioner for Human Rights of Ukraine (“the Ombudsman”) for 2006 and 2007 (presented to Parliament on 24 June 2009) 223. The relevant extracts provide as follows (emphasis in the original): “The Ombudsman assessed the situation in Izyaslav Prison (no. 31), where in January 2007 there had been an extraordinary event, namely a mass refusal [to eat] food by prisoners. In such a manner they protested against their degrading treatment and humiliation by the prison administration. Having visited the prison, the Ombudsman’s representatives discovered numerous violations of the prisoners’ rights. In particular, only one in six prisoners could exercise his right to work, the predominant majority of the prisoners did not have any funds on their personal accounts, [and] there were inadequate living conditions because of the dormitories’ overcrowding. Entitlement to any incentives was preconditioned on at least three purchases in the prison shop with money earned in the prison. At the same time, any prisoner risked heavy punishment if he failed to bare his head upon encountering a staff member, regardless of the season or weather conditions. All this greatly struck the Ombudsman’s representatives. The Ombudsman is investigating the matter. At the same time, the Ombudsman would state that, as compared with the earlier visit to that prison, the material conditions of detention have been improved. Namely, the baths have been repaired, three additional long-distance pay telephones have been installed, the stock of essential commodities and foodstuffs on sale in the shop has been increased, the sanitary conditions in the dormitories’ premises have been improved, and so on. ... Carrying out regular monitoring of the respect for prisoners’ rights, the Ombudsman has reached the conclusion that the practice of the use of special forces units in prisons and detention centres calls for fundamental revision. The primary task of these units is to take measures for the prevention of or putting an end to terrorist crimes or actions disrupting the work of penal institutions and to conduct related training. Given that these measures imply the application of special means of restraint and arms, as well as the use of force, an issue arises as regards the [authorities’] strict adherence to human rights. As transpires from the numerous applications to the Ombudsman from prisoners and their relatives and the ensuing investigations, human rights are not always respected during operations [involving such units]. Furthermore, there is no official information about the tasks and the real practical activities of these units. Therefore, the Ombudsman emphasised in her 2005 Annual Human Rights Report that the practice of the use of special forces units is in fact systematic resort to torture. Presently, the situation has somewhat changed, albeit not drastically, as envisaged by laws and regulations. In spite of the Ombudsman’s numerous statements about the prohibition of prisoners’ ill-treatment, this negative phenomenon took place in Izyaslav Prison (no. 31) ... and in some other penal institutions. It is the [Prisons Department] that bears the responsibility for this .... The modus operandi of antiterrorist units in penal institutions also raised the concerns of the UN Committee against Torture .... In particular, this concerned the wearing of masks by antiterrorist units inside prisons, which was considered as resulting in intimidation and ill-treatment of inmates. It is noteworthy that the Ministry of Justice of Ukraine repealed the Regulations establishing such units as running counter to the requirements of the Convention for the Protection of Human Rights and Fundamental Freedoms.” H. Written Submission of the Ukrainian Helsinki Human Rights Union (NGO) for the OSCE Human Dimension Implementation Meeting on Freedom from Torture and Ill-treatment (HDIM.NGO/327/07, September 2007) 224. The relevant extract reads as follows: “On 14 January 2007 all prisoners at the Izyaslav Penal Colony No. 31 (more than 1,200 men, first time offenders, and in the main young men from 18 to 22) declared a hunger strike. They were protesting against beatings and degrading treatment by staff, arbitrary punishments (each prisoner who wrote a statement gave glaring examples), infringements of working conditions (only a small percentage of those working, not more than 10%, had wages paid, the others received nothing), bad conditions and medical care (one telephone for everybody, and you had to earn the right to a call; food and medicines beyond their sell by date – there were even some cans of food from 1979), as well as the complete lack of any chance of sending complaints against administration behaviour. One of the prisoners’ demands was the removal of the head of the colony. On the same day a commission from the State Department for the Execution of Sentences arrived at the colony. It was led by the Deputy Head of the Department ... who listened to the prisoners’ grievances and promised to rectify the situation. That evening already the prisoners went to supper. The Department explains the events at No. 31 differently. They say that the young head of the institution ... was unable to cope with the problems of the colony, and “the informal management of the colony” got out of hand and wanted to determine themselves who would manage the institution and what the rules of behaviour would be. They therefore organized the protest action. Supposedly it was no hunger strike since none of the prisoners wrote a personal statement refusing to eat. The prisoners had received very good parcels from home coming up to New Year, and could afford to put such pressure on the administration. Such behaviour was a threat to order in the colony and the organizers of the action needed to be punished. The punishment was not long in coming. On 22 January 2007 a special anti-terrorist unit was brought into the colony, with men in masks and military gear. They brutally beat more than 40 prisoners and took them away, half-dressed, some of them without even house shoes (all their things were left in the colony), beaten and covered in blood, with broken noses, ribs and bones, and with teeth knocked out, to the Rivne and Khmelnytskyy SIZO where they were again brutally beaten. In the SIZO they used torture to extract signed statements that they didn’t have any grievances against the administration of Penal Colony No. 31, against the SIZO, the convoy, and also a statement backdated to 21 January asking to be moved to another colony to serve out their sentence. The prisoners say that they were urinating blood for some time, and for more than a month, they couldn’t move their wrists properly because of the handcuffs used on them. Try as the Department did to hush the story up, publicly asserting that there’d been no hunger strike, no special forces nor beatings, the mass media reported both the events of 14 and 22 January and later. The parents of the prisoners approached human rights organizations, journalists from TV Channels 5 and “1 + 1”, and other media outlets. The human rights organizations and parents wrote statements to various bodies demanding that a criminal investigation be instigated in connection with the unlawful actions of the Department. The State Department for the Execution of Sentences has still not admitted that the prisoners were beaten and that their belongings disappeared. The Secretariat of the parliamentary Human Rights Ombudsperson sent the complaints received from parents and the prisoners themselves to the prosecutor’s office and to the selfsame Department (!), although personnel from the Secretariat had themselves been in Colony No. 31. All prosecutor’s offices at different levels have refused to launch a criminal investigation and have maintained that the behaviour of Department staff was lawful. With regard to the loss of belongings, the prosecutor’s office in the Khmelnytskyy region claimed that the belongings had been moved together with the prisoners, that the money in their personal accounts had been handed over and used for the needs of Izyaslav Penal Colony No. 31 on the written authorization of the prisoners themselves. The Prosecutor General, in contrast, has acknowledged that on 22 January methods of physical influence were applied to prisoners – but says this was as the result of resistance from the prisoners to a search. It also maintains that since not one of the prisoners has made a complaint alleging unlawful behaviour, there are no grounds for launching a criminal investigation. The events of 22 January were subjected to scrutiny by the UN Committee against Torture which reviewed Ukraine’s Fifth Periodic Report at its 38th session on 8 and 9 May. When asked by one of the Committee’s experts what had happened at Izyaslav, the Government Delegation responded that a special purpose unit had been brought in to quell a riot. Nonetheless, in their “Conclusions and Recommendations” on 18 May, the Committee directly stated that: “The State party should also ensure that the anti-terrorist unit is not used inside prisons and hence to prevent mistreat and intimidation of inmates.” The Head of the Department ... often repeats that the Department is a law enforcement body which is in the frontline of the fight against crime. Yet throughout the world the penal system is a civilian service. In Ukraine this system requires radical reform. Conditions must really be created which ensure respect for prisoners’ dignity, minimize the adverse effects of imprisonment, eliminate the enormous divide between life in penal institutions and at liberty, and support and consolidate those ties with relatives and with the outside world which best serve the interests of the prisoners and their families. In our view, a shocking crime was committed. It remains however unpunished since there is effectively no system of investigating allegations of torture. After all the prosecutor’s office on the one hand only agrees to launch a criminal investigation where there are statements from victims of torture, while on the other, fails to take any effort to ensure those people’s safety. They are thus under the total control of their torturers which simply leaves no chance for complaints. Other mechanisms are therefore needed to prevent torture and to investigate these crimes.” III. RELEVANT INTERNATIONAL MATERIALS 225. Relevant provisions of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted on 10 December 1984, read as follows: Article 1 “1. For the purposes of this Convention, the term ‘torture’ means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. ... ...” Article 16 “1. Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in Article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. ... ...” 226. In its “Conclusions and Recommendations on Ukraine”, issued on 3 August 2007, the UN Committee against Torture (CAT/C/UKR/CO/5), expressed its concern regarding the events of January 2007 in Izyaslav Prison: “13. ... The Committee is ... concerned at the reported use of masks by the anti ‑ terrorist unit inside prisons (e.g. in the Izyaslav Correctional Colony, in January 2007), resulting in the intimidation and ill-treatment of inmates.” It made the following recommendation in that connection: “The State party should also ensure that the anti-terrorist unit is not used inside prisons so as to prevent the mistreatment and intimidation of inmates.” 227. The 2007 US Department of State Country Report on Human Rights Practices in Ukraine, released on 11 March 2008, touched upon the matter too: “Media and human rights organizations reported on January 14 that over 1,000 inmates at the Izyaslav correctional facility No. 31 in Khmelnytskyy Oblast went on a hunger strike to protest unsatisfactory conditions, including poor food and medical care, and mistreatment by prison personnel. According to human rights groups, a [State Prisons Department] commission inspected the facility and found expired medicine and canned food dating back to 1979. A day after the commission’s visit, the facility’s chief ... denied there was a protest in a televised interview, which was followed by another wave of protests. On January 22, antiriot personnel entered the prison to conduct searches and proceeded to beat the inmates. According to the [KHRPG], guards forced inmates to sign backdated statements that they had no complaints. Several prisoners were later transferred to eight facilities across the country, the [State Prisons Department] threatened to extend their prison sentences, and family members of protest leaders received threats. Human rights groups have appealed to the GPO for an investigation, but there were no reports of action taken at year’s end. On December 17, inmates announced a hunger strike to protest against unsatisfactory detention conditions including wet, cold, and poorly ventilated cells, limited running water, and vermin infestation.” 228. The 2008 US Department of State Country Report on Human Rights Practices in Ukraine, released on 25 February 2009, briefly continued the subject: “During the year the [State Penal Department] denied allegations by human rights groups that it had improperly transferred 40 inmates out of Izyaslav correctional facility no. 1 in Khmelnytskyy Oblast, following hunger strikes and the beating of prisoners at the facility in January 2007. Human rights groups called for an investigation of these incidents.” THE LAW I. JOINDER OF THE APPLICATIONS 229. The Court considers that, pursuant to Rule 42 § 1 of the Rules of Court, the applications should be joined, given their common factual and legal background. II. LOCUS STANDI OF THE FIRST APPLICANT’S MOTHER 230. The Court notes that the first applicant died after having lodged his application under Article 34 of the Convention (see paragraph 5 above). It is not disputed that his mother is entitled to pursue the application on his behalf and the Court sees no reason to hold otherwise (see Toteva v. Bulgaria, no. 42027/98, § 45, 19 May 2004, and Yakovenko v. Ukraine, no. 15825/06, § 65, 25 October 2007). However, reference will still be made to the first applicant throughout the ensuing text. III. THE SEVENTEENTH APPLICANT’S VICTIM STATUS 231. The Court considers it necessary to decide on the victim status of the seventeenth applicant. It reiterates that the term “victim” used in Article 34 of the Convention denotes the person directly affected by the act or omission which is at issue (see, among other authorities, Vatan v. Russia, no. 47978/99, § 48, 7 October 2004). 232. In the present case, it appears that the ill-treatment complained of, as well as the alleged loss of property, concerned forty-one inmates of Izyaslav Prison who were transferred to Khmelnytskyy and Rivne SIZOs (see paragraphs 25-112 above). 233. The Court notes that the seventeenth applicant was not among those prisoners. Neither did he make any submissions elucidating the facts pertaining to his personal situation. 234. The Court therefore considers that the application, in so far as it concerns the seventeenth applicant, is incompatible ratione personae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected in accordance with Article 35 § 4 of the Convention. 235. The Court will therefore limit its examination of the complaints raised in the application to those which concern the remaining seventeen applicants, whom – for the sake of simplicity – it will henceforth refer to as “the applicants”, without specifying every time that they do not include the seventeenth applicant. IV. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION 236. The applicants complained under Article 3 of the Convention of ill ‑ treatment during and after the search and security operation conducted in Izyaslav Prison on 22 January 2007. They also complained, relying on Article 13 of the Convention, that there had been no effective domestic investigation into the matter. 237. The Court considers it appropriate to examine both these complaints under Article 3 of the Convention which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility 1. The Government’s objection 238. The Government submitted that none of the applicants could be regarded as having exhausted the domestic remedies available to them under domestic law as required by Article 35 § 1 of the Convention. 239. They contended, in particular, that the sixth applicant had erroneously sought to challenge before the domestic courts the ruling of the prosecution authorities of 7 February 2007, which had not concerned him personally. According to the Government, it would have been more appropriate for him to challenge the prosecutorial decision of 10 September 2007 delivered in reply to his individual complaint of ill ‑ treatment. 240. After the sixth applicant subsequently did so (see paragraph 189 above), the Government considered his complaint before the Court premature given the ongoing domestic investigation (see paragraphs 190 ‑ 195 above). 241. The Government further argued that, although the fifth and the seventh applicants had mentioned to the prosecutor in passing that they had been beaten on 22 January 2007 (the fifth applicant did so on 11 and 31 July 2007 – see paragraphs 166 and 169 above, and the seventh applicant on 2 February 2007 – see paragraph 133 above), they had failed to show sufficient interest in the investigation into those allegations. The Government referred in this connection to the seventh and the fifth applicants’ failure to challenge the prosecutor’s rulings of 7 February and 10 September 2007, respectively. 242. Once both these rulings were quashed, the Government maintained their non-exhaustion objection on the grounds that, like in the case of the sixth applicant, the domestic investigation was not yet completed (see paragraphs 190-195 above). 243. Similarly, in respect of the remaining fifteen applicants, the Government first argued that they should have challenged the prosecutor’s ruling of 7 February 2007 and later referred to the ongoing domestic investigation into the matter. 2. The applicants’ reply 244. The applicants maintained that they had done everything that could reasonably be expected of them to exhaust domestic remedies. 245. They noted that the prosecutor’s ruling of 7 February 2007 had been delivered following the investigation of the information disseminated in the media regarding the alleged mass beating in Izyaslav Prison on 22 January 2007 (see paragraph 146 above). Accordingly, it had concerned all the applicants equally. The sixth applicant’s later individual complaint had been rejected on 2 August 2011 primarily on the grounds that similar allegations had already been investigated and dismissed by the aforementioned ruling of 7 February 2007. The applicants therefore found the differentiation by the Government between the situation of the sixth applicant and that of the other applicants inexplicable. 246. They contended that, from the procedural point of view, the legal effect of a single complaint against the ruling in question was the same as the effect of complaints from each of the eighteen applicants. At the same time, the existence of several complaints concerning the same subject ‑ matter would have caused complications and delays. 247. The applicants further submitted that the domestic investigation of their alleged ill-treatment had been ongoing for years without any meaningful attempt to establish the truth and to punish those responsible. Referring to their complaint concerning the ineffectiveness of that investigation, they argued that they were under no obligation to await its completion. In any event, the Government’s objection as to the admissibility of their complaint under the substantive limb of Article 3 of the Convention could only be examined together with the examination of the merits of their complaint under its procedural limb. 3. The Court’s assessment 248. The Court notes certain factual developments in the case posterior to the Government’s initial observations of 20 June 2011 (see paragraphs 190-195 above). It further observes that the Government maintained their objection as to the admissibility of this complaint on the grounds that the domestic investigation was ongoing and therefore the State could still respond to the applicants’ complaints at the national level. 249. The Court considers that the questions of whether the applicants’ complaint of ill-treatment is premature in view of the pending investigation and whether they have exhausted domestic remedies in respect of this complaint are closely linked to the question of whether the investigation into their allegations of ill-treatment was effective. This issue should therefore be joined to the merits of the applicants’ complaint under Article 3 of the Convention (see, for example, Yaremenko v. Ukraine (dec.), no. 32092/02, 13 November 2007, and Muradova v. Azerbaijan, no. 22684/05, § 87, 2 April 2009). 250. The Court further notes that this complaint is not manifestly ill ‑ founded within the meaning of Article 35 §§ 3 (a) of the Convention. It is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 251. The Court notes from the outset that the Government did not submit any observations on the merits of the case. As regards the factual account of the events under consideration, they relied on the findings of the domestic investigation in their objection regarding the admissibility of the applications (see paragraphs 238-243 above). The applicants, from their side, criticised the domestic investigation, contested its findings and advanced their own version of what had happened to them on 22 January 2007 in Izyaslav Prison and subsequently in the SIZOs to which most of them had been transferred (for a more detailed summary of their arguments see paragraphs 254-257, 312 and 323 below). 252. The Court is mindful of the necessity of establishing the facts of the case as an indispensable element of its examination of the applicants’ complaint of ill-treatment under the substantive limb of Article 3 of the Convention. Before embarking on this exercise, it appears important for the Court to reach an opinion about the genuineness and thoroughness of the domestic authorities’ efforts to establish the truth in this case. Only having made an assessment of the domestic investigation will the Court know whether it can rely on its findings. 253. Accordingly, the Court will first deal with the applicants’ complaint under the procedural limb of Article 3 of the Convention and then with their complaint under its substantive limb. 1. Alleged inadequacy of the investigation (a) The parties’ submissions 254. The applicants contended that the domestic investigation into their allegations of ill-treatment could not be considered independent as it had been entrusted to the Shepetivka Prosecutor, who had been supposed to supervise the legality of the search and security operation in Izyaslav Prison. They also noted in this connection that the prosecution authorities had relied on the inquiry undertaken by the Prisons Department, whose officials had been directly involved in the events complained of. Moreover, some of the documents dismissing the applicants’ complaints of ill-treatment had been signed by officials who had participated in that ill-treatment. 255. The applicants further submitted that the investigation had failed to ensure their and the witnesses’ security. Fearing reprisals by the prison administration, inmates of Izyaslav Prison had preferred to keep silent or to deny having witnessed any ill-treatment. So had the prisoners, including the applicants, who had been transferred to SIZOs, as their ill-treatment and intimidation had continued. 256. The applicants next criticised the domestic investigation for its superficiality. They referred, in particular, to the following shortcomings: the lack of comprehensive questioning of both the prisoners moved from Izyaslav Prison and those staying there after the events in question; the absence of thorough forensic medical examinations of the applicants, including an examination of their internal organs and X-raying; and the failure to carry out any on-site examination in Izyaslav Prison. 257. Lastly, the applicants contended that the investigation had not been open to any public scrutiny. 258. As noted in paragraph 251 above, the Government did not submit any observations on the merits of this complaint. (b) The Court’s assessment (i) General principles 259. The Court 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 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 obligation “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. Thus, the investigation of serious 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, eyewitness testimony, forensic evidence, and so on. 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 (see, among many authorities, Assenov and Others v. Bulgaria, 28 October 1998, §§ 102 et seq., Reports of Judgments and Decisions 1998 ‑ VIII, Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 71, ECHR 2002 ‑ II, and Mikheyev v. Russia, no. 77617/01, § 107 et seq., 26 January 2006). 260. The Court further notes that, for an investigation into torture or ill ‑ treatment by agents of the State to be regarded as effective, the general rule is that the persons responsible for making inquiries and those conducting the investigation should be independent hierarchically and institutionally of anyone implicated in the events, in other words that the investigators should be independent in practice (see Batı and Others v. Turkey, nos 33097/96 and 57834/00, § 135, ECHR 2004 ‑ IV (extracts)). 261. A requirement of promptness and reasonable expedition is implicit in this context. A prompt response by the authorities in investigating allegations of ill-treatment may generally be regarded as critical for 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 v. the United Kingdom, no. 28883/95, § 114, ECHR 2001 ‑ III). While there may be obstacles or difficulties which prevent progress in an investigation of a particular situation, it may generally be regarded as essential for the authorities to launch an investigation promptly (see Batı and Others, cited above, § 136). 262. For the same reasons, there must be a sufficient element of public scrutiny of the investigation or its results to ensure accountability in practice as well as in theory, which may well vary from case to case. In all cases, however, the complainant must be afforded effective access to the investigatory procedure (see Aksoy v. Turkey, 18 December 1996, § 98, Reports 1996-VI). (ii) Application of these principles to the present case 263. Having regard to the magnitude of the events complained of and the fact that these events unfolded under the control of the authorities and with their full knowledge, the several acknowledged instances of the use of force against the prisoners, the seriousness of the allegations raised and the public attention involved, the Court finds that all the applicants had an arguable claim that they had been ill-treated and that the State officials were under an obligation to carry out an effective investigation into the matter. (α) Thoroughness 264. The Court emphasises that whenever a number of detainees have been injured as a consequence of a special forces operation in a prison, the State authorities are under a positive obligation under Article 3 to conduct a medical examination of inmates in a prompt and comprehensive manner (see Mironov v. Russia, no. 22625/02, §§ 57-64, 8 November 2007, and Dedovskiy and Others v. Russia, no. 7178/03, § 90, ECHR 2008 (extracts)). As the Court has held on many occasions, proper medical examinations are an essential safeguard against ill-treatment. A forensic medical examiner must enjoy formal and de facto independence, have been provided with specialised training and have a mandate which is broad in scope (see Akkoç v. Turkey, nos 22947/93 and 22948/93, §§ 55 and 118, ECHR 2000 ‑ X). 265. The Court notes that in the present case a forensic medical examination was only arranged for the group of former Izyaslav Prison inmates who were transferred to Khmelnytskyy SIZO (including seven applicants), while those in Rivne SIZO (including ten applicants) did not undergo any such examination (see paragraphs 130 and 136-139 above). 266. As to the examination of the seven applicants, it is true that it was undertaken by a forensic expert. However, his reports in respect of all these applicants (with the exception of the fourth and the eighteenth applicants) were worded identically and were confined to a mere statement that “no external injuries” had been discovered. Apparently, only a visual examination took place, without any serious attempt to establish all the injuries and determine their cause using forensic methods (see, mutatis mutandis, Rizvanov v. Azerbaijan, no. 31805/06, § 47, 17 April 2012). 267. The Court further notes that, when a doctor writes a report after a medical examination of a person who alleges having been ill-treated, it is extremely important that he states the degree of consistency with the allegations of ill-treatment. A conclusion indicating the degree of support for the allegations of ill ‑ treatment should be based on a discussion of possible differential diagnoses (see Barabanshchikov v. Russia, no. 36220/02, § 59, 8 January 2009). 268. In the present case, the expert who examined the applicants in Khmelnytskyy SIZO was not informed of the nature of the investigation in the course of which the examinations had been ordered, and made no efforts to establish the circumstances of the case (see paragraphs 130 and 136 above). This, at least, transpires from the examination reports in respect of five applicants on whom no injuries were discovered (see paragraph 136 above). Such lack of awareness, or indifference, on the part of the expert is even more striking given that the use of force was acknowledged in respect of two applicants (the fourth and the eighteenth). Accordingly, the expert could hardly have been unaware of the comparable circumstances of the other applicants. 269. As regards the forensic medical examination of the fourth and the eighteenth applicants, the Court observes that the expert report of 2 February 2007 documented fewer injuries than those reported a week before. Namely, in so far as the fourth applicant was concerned, it did not mention the bruise of 3 x 7 cm on his right buttock and the bruise of 3 x 6 cm on his left hip. Neither did it indicate the bruise of 4 x 8 cm on the eighteenth applicant’s left shoulder blade (see paragraphs 137-138 above). 270. While it appears unlikely that the aforementioned bruises had disappeared over the course of a week without any trace, the Court cannot rule out such a possibility altogether. 271. The Court emphasises that the applicants, being imprisoned, were entirely reliant on the prosecution authorities to assemble the evidence necessary for corroborating their complaints. The prosecutor had the legal powers to interview the officers involved, summon witnesses, visit the scene of the events, collect forensic evidence and take all other steps crucial for establishing the truth of the applicants’ account. 272. According to the applicants, in the present case the prosecutorial authorities not only failed to make those efforts, but also turned a blind eye to their visible injuries and continuous intimidation. 273. While the Court has no means of verifying the circumstances of the applicants’ questioning by the Khmelnytskyy and Rivne Prosecutors on 30 January and 2 February 2007, it discerns certain indications in the facts of the case in favour of the applicants’ account. Namely, there is no evidence showing that the questioning sessions took place in private, without the presence of SIZO administration officers. Furthermore, the Court finds it striking that the prosecutor accepted the waiver by some of the applicants of a medical examination, on which he should have insisted as an essential element of the investigation (see paragraph 133 above). The Court is also struck by the prosecutor’s indifference and passivity as regards the confirmed injuries of the fourth applicant and his denial of any ill ‑ treatment, combined with a refusal to give any explanations (ibid.). 274. The Court next observes that, although the Shepetivka Prosecutor initiated disciplinary proceedings against the governor of Izyaslav Prison for failure to ensure the prosecutorial supervision of the search and security operation of 22 January 2007 as required by law, no further action apparently followed (see paragraph 145 above). 275. The Court further notes that the investigation was reopened on several occasions and was criticised by the authorities as being incomplete (see paragraphs 172, 190 and 192 above). The Court has no reasons to consider it otherwise. 276. Overall, the Court discerns the following significant omissions undermining the reliability and effectiveness of the domestic investigation: (a) incompleteness and superficiality of the applicants’ medical examination; (b) failure to ensure the applicants’ and witnesses’ safety as regards any fears of retaliation or intimidation; and (c) a formalistic and passive attitude on the part of the prosecution authorities. It therefore cannot consider the investigation to be thorough. (β) Independence 277. The Court notes that both the applicants’ relatives and domestic NGOs insisted on an independent investigation of the matter (see paragraphs 127 and 158 above). 278. The investigation was, however, entrusted to the Shepetivka Prosecutor, who was in charge of supervision of compliance with the law in penal institutions located in the Khmelnytskyy region (where Izyaslav Prison was located). While the Khmelnytskyy and Rivne Prosecutors, as well as the Lviv Regional Prosecutor, were involved in separate investigation activities, it was the Shepetivka Prosecutor who took decisions concerning the applicants’ allegations (see, in particular, paragraphs 129 ‑ 132, 145-146, 165-166, 171-173 and 191-192 above). 279. As the Court held in Melnik v. Ukraine (no. 72286/01, § 69, 28 March 2006) and further reiterated in Davydov and Others v. Ukraine (nos. 17674/02 and 39081/02, § 251, 1 July 2010), the status of such a prosecutor under domestic law, his proximity to prison officials with whom he supervised the relevant prisons on a daily basis, and his integration into that prison system did not offer adequate safeguards such as to ensure an independent and impartial review of prisoners’ allegations of ill-treatment on the part of prison officials. 280. The fact that the Shepetivka Prosecutor did not monitor the particular operation in Izyaslav Prison complained of, even though the prison administration was required by law to inform him in advance but failed to do so (see paragraphs 145 and 200 above), does not change the above considerations as to the lack of his independence in practice. 281. The Court also observes that on many occasions the applicants’ (or their relatives’) complaints were dismissed by officials of the Prisons Department who had been directly involved in the events complained of. 282. In sum, there was no independent investigation into the applicants’ allegations of ill-treatment. (γ) Promptness 283. The Court notes that the General Prosecutor’s Office became aware of the grave allegations of mass beating of Izyaslav Prison inmates on 26 January 2007 at the latest (see paragraphs 127 above). 284. The Court observes that within the following week, on 30 January and 2 February 2007, the applicants were questioned by local prosecutors in Khmelnytskyy and Rivne SIZOs (see paragraphs 129 and 131-133 above). In addition, the group of applicants in Khmelnytskyy SIZO were examined by a forensic medical expert, who completed his report on 2 February 2007 (see paragraphs 136-138 above). Also, at about the same time, the investigator questioned the officers from the administration of Izyaslav Prison, the special forces unit and the rapid reaction groups involved in the operation of 22 January 2007. 285. As a result, on 7 February 2007, two weeks after the events complained of, the prosecutor delivered a decision dismissing the applicants’ complaints as unfounded. 286. The above-mentioned investigative steps might give an impression of a prompt response to the complaints in question, which consisted of medical examinations and questioning of the supposed victims and the alleged perpetrators. However, where examinations are incomplete and superficial, the victims are intimidated and the alleged perpetrators’ denial of any wrongdoing is taken at face value, as it was in the present case (see paragraphs 266, 268 and 273-276 above), these steps cannot be considered as a prompt and serious attempt to find out what happened, but rather as a hasty search for any reasons for discontinuing the investigation. 287. The Court further notes that, following several remittals of the case for additional investigation, four years and nine months after the events complained of, the authorities acknowledged that the investigation undertaken had been incomplete (see, in particular, paragraph 192 above). 288. In such circumstances the Court is bound to conclude that the authorities failed to comply with the requirement of promptness (see Kişmir v. Turkey, no. 27306/95, § 117, 31 May 2005, and Angelova and Iliev v. Bulgaria, no. 55523/00, § 103, ECHR 2007). (δ) Public scrutiny 289. The Court notes that, according to the applicants’ lawyer, he only received a copy of the prosecutor’s ruling of 7 February 2007 refusing to open a criminal case in respect of the ill-treatment allegations on 11 July 2008 (see paragraph 176 above). In the absence of any evidence to the contrary, the Court has no reason to question the veracity of this submission. The authorities’ earlier references to the existence of this ruling in their correspondence with the applicants’ relatives (see paragraphs 164 and 175 above) were not enough to enable the applicants to effectively challenge its findings and reasoning. 290. In fact, there is no evidence in the case file showing that any of the decisions taken in respect of the applicants’ alleged ill-treatment were duly served on them. While some judicial rulings were sent to the governor of Derzhiv Prison, where the sixth applicant was serving his sentence at the time, it remains unclear whether they were eventually passed on to him (see paragraphs 186 and 188 above). 291. Accordingly, the Court considers that the applicants’ right to participate effectively in the investigation was not ensured. 292. It notes that the Ombudsman was apparently involved. According to the documents, however, her representatives visited the Izyaslav Prison before the events complained of, namely on 17 January 2007 (see paragraph 11 above). Although the issue of the alleged mass beating there was brought to the Ombudsman’s attention, it appears that she remained passive and only condemned, doing so in general terms in her report to Parliament, any use of special forces units in prisons as amounting to acts of torture more than two years later (see paragraphs 126, 150, 153 and 223 above). 293. Lastly, the Court notes the formalistic replies from the authorities to the NGOs’ enquiries about the investigation (see paragraphs 123-124, 127 and 148 above). 294. In the light of the foregoing, the Court concludes that the domestic investigation lacked the requisite public scrutiny. (ε) Conclusions 295. Having regard to the above failings of the Ukrainian authorities, the Court finds that the investigation carried out into the applicants’ allegations of ill-treatment was not thorough or independent, failed to comply with the requirement of promptness and lacked public scrutiny. It was therefore far from an adequate investigation. 296. The Court therefore dismisses the Government’s objection as to the exhaustion of domestic remedies previously joined to the merits (see paragraph 249 above), and finds that there has been a violation of Article 3 of the Convention under its procedural limb. 2. Alleged ill-treatment of the applicants (a) Scope of the Article 3 prohibition 297. As the Court has stated on many occasions, Article 3 enshrines one of the fundamental values of democratic society. Even in the most difficult of circumstances, such as the fight against terrorism or crime, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the victim’s behaviour (see, among other authorities, Labita v. Italy [GC], no. 26772/95, § 119, ECHR 2000-IV, and Saadi v. Italy [GC], no. 37201/06, § 127, ECHR 2008). 298. The Court has also consistently stressed that the suffering and 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. In accordance with Article 3 of the Convention, the State must ensure that a person is detained under conditions which are compatible with respect for his human dignity and that the manner and method of the execution of the measure do not subject him to distress or hardship exceeding the unavoidable level of suffering inherent in detention (see Kudła v. Poland [GC], no. 30210/96, §§ 92-94, ECHR 2000-XI). 299. In respect of detainees, the Court has emphasised that persons in custody are in a vulnerable position and that the authorities are under a duty to protect their physical well-being (see Vladimir Romanov v. Russia, no. 41461/02, § 57, 24 July 2008, with further references). In respect of a person deprived of his liberty, any recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 of the Convention (see Ribitsch v. Austria, 4 December 1995, § 38, Series A no. 336, and Sheydayev v. Russia, no. 65859/01, § 59, 7 December 2006). (b) Establishment of the facts 300. The applicants insisted on their account of the events as outlined in paragraphs 25-108 above. They maintained that, during and/or following the search and security operation conducted in Izyaslav Prison on 22 January 2007, they had suffered: extensive and cruel beatings; humiliation and degrading treatment, including but not limited to being ordered to strip naked and adopt humiliating poses; application of special means of restraint, including handcuffs, unnecessarily and in a particularly painful manner; being deprived of access to water or food for a long period of time during their transfer to the SIZOs; exposure to low temperatures without adequate clothing upon their arrival at the SIZOs; a lack of adequate medical examinations and assistance. They insisted that the ill-treatment complained of had amounted to torture. 301. The Government did not submit any observations on the merits of the case. (i) General case-law principles concerning evidence and the burden of proof 302. According to the Court’s case-law, 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” (see Ireland v. the United Kingdom, 18 January 1978, § 161, Series A no. 25). However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries occurring during such detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII). 303. The Court understands that allegations of ill-treatment are extremely difficult for the victim to substantiate if he or she has been isolated from the outside world, without access to doctors, lawyers, family or friends who could provide support and assemble the necessary evidence (see Batı and Others, cited above, § 134). (ii) Undisputed facts 304. In the present case it is common ground between the domestic authorities and the applicants that on 22 January 2007 an operation was carried out in Izyaslav Prison, where the applicants were serving sentences at the time. That operation included, in particular, searches of the premises within the prison, body searches of a group of forty-one detainees, unspecified “preventive security measures for enhancing order” and training drills (see, in particular, paragraph 15 above). 305. As acknowledged by the authorities, the aforementioned operation took place without the legally envisaged monitoring by the regional prosecutor in charge of supervision of compliance with the law in penal institutions (see paragraph 145 above). 306. The Court next observes that the applicants’ account and the official reports are concordant in terms of the human resources involved in the operation in question. Namely, one hundred and thirty-seven officers were involved, twenty-two of whom were from rapid reaction groups deployed from two other prisons and nineteen of whom belonged to the Prisons Department’s interregional special forces unit (see paragraph 18 above). 307. Furthermore, as admitted by the Ukrainian authorities, the involvement of the special forces unit was based on a regulatory framework running contrary to the Convention and the Court’s case-law principles (see paragraphs 217-222 above). 308. The Court also observes that, while prior to the operation complained of, nearly one hundred percent of the prison population went on hunger strike to convey their complaints to higher authorities, not a single complaint was reported from prisoners during the final stage of the operation, which was stated to be dedicated to recording the prisoners’ complaints and resolving the issues raised (see paragraphs 8, 10, 16 and 20 above). 309. As to the use of force against prisoners, it is undisputed that several blows with rubber truncheons were inflicted on and handcuffing was applied to the fourth and the eighteenth applicants, along with six other prisoners (see paragraphs 20-24 and 137-138 above). 310. Another established fact is that forty-one prisoners (including seventeen of the eighteen applicants), whom the administration regarded as the organisers of the hunger strike, were transferred to different detention facilities in a rushed manner immediately after the search, without having been given the opportunity to get prepared or to collect their personal belongings. (iii) Disputed facts and their assessment by the Court 311. The Court notes that the major point of argument between the applicants and the domestic authorities concerned the use of force by the officers conducting the search and security operation in Izyaslav Prison on 22 January 2007, its nature and scope. 312. The applicants alleged indiscriminate and large-scale brutality against them. Ten of them gave a detailed account of the events of 22 January 2007, describing the chain of events, indicating the time, location and duration of the beatings, and explaining the methods used by officers (see paragraphs 25-108 above). While the seventh, the eighth, the ninth, the eleventh, the twelfth, the thirteenth and the fourteenth applicants did not provide separate accounts of the events, they relied on those submitted by the aforementioned applicants. Given that they were all in the same group of prisoners separated from the others by the special forces unit’s officers, subjected to a body search and immediately transferred to the SIZOs, the Court accepts that all seventeen applicants were subjected to comparable treatment in the same factual setting. 313. The authorities, however, only acknowledged two incidents involving the fourth and the eighteenth applicants (see paragraphs 20-24 and 137-138 above). 314. The Court notes that the medical records in the case file confirm some injuries of those two applicants, the absence of any injuries to five other applicants (the second, the seventh, the eighth, the thirteenth and the fourteenth applicants) and are non-existent in respect of the remaining ten applicants. 315. The Court notes that although medical evidence plays a decisive role in establishing the facts for the purpose of Convention proceedings, the absence of such evidence cannot immediately lead to the conclusion that the allegations of ill-treatment are false or cannot be proven. Were it otherwise, the authorities would be able to avoid responsibility for ill-treatment by not conducting medical examinations and not recording the use of physical force or special means of restraint (see Artyomov v. Russia, no. 14146/02, § 153, 27 May 2010). 316. The Court is not convinced by the medical records noting the absence of any injuries to five of the applicants for the following reasons. It notes that their initial examination took place in Khmelnytskyy SIZO, whose staff had been directly involved in the search and security operation complained of (see paragraphs 18, 129 and 134 above). Furthermore, the applicants alleged that they had been subjected to continuous ill-treatment in that SIZO and their complaints in that regard were never investigated. As to the forensic medical examination of 30 January 2007, the Court has already concluded that it was superficial and cannot be fully relied on (see paragraphs 266-270 and 276 above). Even assuming that those five applicants indeed had no visible injuries on 30 January 2007, as stated in their forensic medical examination reports (see paragraph 136 above), more than a week had elapsed since the impugned operation, meaning that, depending on their severity, the injuries could have healed in the interval. In any event, the Court is well aware that there are methods of applying force which do not leave any traces on a victim’s body (see Boicenco v. Moldova, no. 41088/05, § 109, 11 July 2006). For example, blows with truncheons do not automatically leave visible marks on the body, even though they do cause substantial pain (see Selmouni v. France [GC], no. 25803/94, § 102, ECHR 1999 ‑ V). And, of course, the consequences of any intimidation, or indeed any other form of non-physical abuse, would in any event have left no visible trace (see Hajnal v. Serbia, no. 36937/06, § 80, 19 June 2012). 317. Thus, the Court concludes that it does not have complete or conclusive medical evidence before it that would either support or detract from the reliability of the applicants’ allegations. That being so, it must establish the facts on the basis of all the other materials in the case file. 318. First of all, the Court takes note of the difference between the declared and the real purpose of the operation complained of in Izyaslav Prison. It observes that it was planned and reported as comprising a general search and some unspecified preventive security measures, together with practical drills, without any reference being made to the ongoing protests by the prisoners. However, as was later acknowledged by the authorities, it was the prisoners’ mass hunger strike in protest at the conditions of their detention and the administration’s wrongdoing that prompted this operation (see paragraphs 115, 122, 149 and 157 above). 319. Secondly, the Court has regard to the involvement of the special forces unit in the operation complained of. It considers credible the applicants’ submission that its officers had been wearing masks. The Court notes that it was a paramilitary formation equipped and trained for carrying out, in particular, antiterrorist operations. The Court has already established, including through a fact-finding mission, in the case of Davydov and Others, cited above, that a similar security operation had earlier been carried out in Zamkova Prison (neighbouring Izyaslav Prison) with the involvement of officers from special forces units wearing masks. There is no indication, be it in the legislative framework in place or in administrative developments, of a change in that practice. Moreover, the legal provisions providing a basis for the existence of such a special forces unit were eventually repealed as running contrary to the Convention and the Court’s case-law (see paragraph 222 above). In addition, the Court attaches weight to the categorical statement of the Ukrainian Ombudsman that “the practice of the use of special forces units [was] in fact systematic resort to torture” (see paragraph 223 above). 320. Thirdly, the Court notes that, while before the impugned operation nearly one hundred percent of prisoners in the jail had united in expressing their quite specific complaints against the administration, not a single complaint was recorded after this operation took place. It is noteworthy that the search did not result in the discovery of any major breaches of the rules on the prisoners’ part (the prohibited items discovered and seized, such as razor blades, medicines, water boilers, etc., could not have suggested that preparations for a riot or anything of the kind were under way). In the Court’s opinion, such a drastic change, in a matter of hours, from explicitly manifested unanimous dissent to complete acceptance could only be explained by indiscriminate brutality towards the prisoners having taken place. 321. Lastly, the Court does not lose sight of the circumstances in which the applicants were transferred to Khmelnytskyy and Rivnenskyy SIZOs following the operation. They were not given any chance to prepare for those transfers, to collect their personal belongings or even to dress appropriately for the weather conditions (the events taking place in January). Such a course of events is conceivable against a background of violence and intimidation rather than following a well-organised and orderly search and security operation which, as noted above, failed to reveal any serious breaches. 322. In the light of all the foregoing inferences and having regard to the Government’s silence as to the applicants’ factual submissions, the Court finds it established to the standard of proof required in Convention proceedings that the applicants were subjected to the treatment of which they complained. (c) Assessment of the severity of the ill-treatment 323. The applicants insisted that they had suffered ill-treatment amounting to torture. 324. The Government did not comment. 325. The Court is mindful of the potential for violence that exists in penal institutions and of the fact that disobedience by detainees may quickly degenerate into a riot (see Gömi and Others v. Turkey, no. 35962/97, § 77, 21 December 2006). The Court has previously accepted that the use of force may be necessary to ensure prison security, to maintain order or to prevent crime in penal facilities. Nevertheless, as noted above, such force may be used only if indispensable and must not be excessive (see Ivan Vasilev v. Bulgaria, no. 48130/99, § 63, 12 April 2007). 326. Turning to the present case, the Court notes that the prison authorities resorted to large-scale violent measures under the pretext of a general search and security operation, which was in fact targeted against the most active organisers of the prisoners’ mass hunger strike (see paragraphs 115, 122, 149 and 157 above). Furthermore, the operation in question took place without the legally obliged prosecutorial supervision (see paragraph 145 above). 327. It was a commonly accepted fact that the aforementioned protests by the prisoners were confined to peaceful refusals to eat prison food, without a single violent incident having been reported (see paragraphs 8-11 above). As eventually acknowledged by the Prisons Department, the prisoners’ claims were not without basis as regards both the conditions of their detention and the unbalanced and arbitrary resort of the prison administration to various penalties and sanctions (see paragraphs 117 and 119 above). The Court next observes that the prisoners demonstrated willingness to cooperate with and trust towards the Prisons Department’s officials, having terminated the hunger strike immediately after the creation of the special commission tasked with the investigation of their allegations (see paragraph 9 above). It is also noteworthy that the events took place in a minimum security level prison, where all the inmates were serving a first sentence in respect of minor or medium-severity criminal offences (see paragraphs 7 and 197 above). 328. The Court notes that the operation in question took place following prior preparations, with the involvement of specially trained personnel. The officers involved outnumbered the prisoners by more than three times (forty-one prisoners versus almost 140 officers). Furthermore, the prisoners did not receive the slightest warning of what was about to happen to them, having complied with the administration’s order to come to certain premises. Having regard to the presence of the Prisons Department’s officials who had previously started a dialogue with prisoners regarding their complaints, the inmates apparently expected the continuation of that dialogue (see paragraphs 9, 11 and 26 above). Instead, a group of masked paramilitaries stormed into the premises and “convinced” the prisoners to waive any complaints altogether. As to the manner in which this was likely achieved, the Court has already held that it considers the applicants’ account credible (see paragraph 322 above). 329. As regards the only two instances of the use of force – against the fourth and the eighteenth applicants – acknowledged by the domestic authorities, the Court notes that no efforts were taken by the officials concerned to show that it had been necessary in the circumstances. Thus, all eight reports (in addition to the two applicants, force was reported to have been used against six other prisoners) had an absolutely identical formalistic wording and referred to unspecified “physical resistance [by the prisoners] to the officers [conducting] the search” (see paragraph 21 above). Furthermore, it can be seen from the medical reports that all the prisoners in question (save one) were beaten on their buttocks (see paragraph 22 above). The Court considers that beating of this kind appears to be demeaning and retaliatory, rather than aiming at overcoming any physical resistance. 330. It is impossible for the Court to establish the seriousness of all the bodily injuries and the level of the shock, distress and humiliation suffered by every single applicant. However, it has no doubt that this unexpected and brutal action by the authorities was grossly disproportionate in the absence of any transgressions by the applicants and manifestly inconsistent with even those artificial goals they declared they were seeking to achieve. As suggested by all the facts of the case, violence and intimidation were used against the applicants, along with some other prisoners, simply in retaliation for their legitimate and peaceful complaints. 331. In so far as the seriousness of the acts of ill-treatment is concerned, the Court reiterates that in order to determine whether a particular form of ill-treatment should be qualified as torture, it must have regard to the distinction, embodied in Article 3, between this notion and that of inhuman or degrading treatment. It appears that it was the intention that the Convention should, by means of this distinction, attach a special stigma to deliberate inhuman treatment causing very serious and cruel suffering. The Court has previously had before it cases in which it has found that there has been treatment which could only be described as torture (see Shishkin v. Russia, no. 18280/04, § 87, 7 July 2011, with further references). 332. As noted above, the gratuitous violence resorted to by the authorities was intended to crush the protest movement, to punish the prisoners for their peaceful hunger strike and to nip in the bud any intention of raising complaints. In the Court’s opinion, the treatment the applicants were subjected to must have caused them severe pain and suffering, within the meaning of Article 1, paragraph 1, of the United Nations Convention again Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (see paragraph 225 above), even though it did not apparently result in any long-term damage to their health. In these circumstances, the Court finds that the applicants were subjected to treatment which can only be described as torture (compare with Selmouni v. France, cited above, §§ 100-105 ). 333. There has therefore been a violation of Article 3 of the Convention, in that the Ukrainian authorities subjected the applicants to torture. V. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 334. The applicants complained that the investigation into their allegations of ill-treatment had been ineffective and thus contrary to 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.” 335. The Court observes that this complaint concerns the same issues as those examined in paragraphs 254 to 296 above under the procedural limb of Article 3 of the Convention. Therefore, the complaint should be declared admissible. However, having regard to its conclusion above under Article 3 of the Convention, the Court considers it unnecessary to examine those issues separately under Article 13 of the Convention (see, for example, Polonskiy v. Russia, no. 30033/05, §§ 126-127, 19 March 2009, and Teslenko v. Ukraine, no. 55528/08, §§ 120-121, 20 December 2011). VI. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 336. The applicants complained that the administration of Izyaslav Prison had failed to return all their personal belongings to them following their hasty transfer to different detention facilities on 22 January 2007. They relied on Article 1 of Protocol No. 1 to the Convention, which reads as follows in the relevant part: “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 337. The Government submitted that the seventeenth applicant had not been transferred from Izyaslav Prison. Accordingly, he could not claim to be a victim of the alleged loss of property associated with such a transfer. 338. The applicants’ lawyer did not comment on this submission. 339. The Court notes that it has already declared inadmissible the entire application, in so far as it concerns the seventeenth applicant, as being incompatible ratione personae with the provisions of the Convention (see paragraph 234 above). 340. The present objection of the Government has therefore already been responded to. 341. The Court further notes that the remaining applicants’ complaint under Article 1 of Protocol No. 1 is not manifestly ill-founded within the meaning of Article 35 §§ 3 (a) of the Convention. It is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 342. The applicants contended that they had not received in full their property from Izyaslav Prison. 343. The Government did not comment. 344. The Court accepts that prisoners are bound by certain restrictions on their right to the enjoyment of their possessions. 345. In the present case, however, it considers that the applicants’ right to property was infringed, even if taken within those boundaries. Thus, the chaotic and hasty manner in which they were transferred from Izyaslav Prison to Khmelnytskyy and Rivne SIZOs is corroborated by sufficient evidence. The applicants were deprived of any chance to collect their personal belongings and to prepare for the transfer. 346. It was therefore for the Government to prove that they did eventually receive their property which they had rightfully possessed in Izyaslav Prison. In the absence of any conclusive evidence in that regard, the Court concludes that at least some of the applicants’ property must have indeed been lost or misplaced. 347. The Court notes that this interference with the applicants’ rights was not lawful and did not pursue any legitimate aim. 348. That being so, the Court holds that there has been a violation of Article 1 of Protocol No. 1. VII. APPLICATION OF ARTICLE 41 OF THE CONVENTION 349. 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 350. The applicants claimed 50,000 euros (EUR) each in respect of non-pecuniary damage. 351. The Government contested this claim as unsubstantiated and exorbitant. 352. The Court observes that it has found particularly grievous violations in the present case. It accepts that the applicants suffered pain and distress which cannot be compensated by a finding of a violation. Nevertheless, the particular amounts claimed appear excessive. Making its assessment on an equitable basis, the Court awards each applicant (with the exception of the seventeenth applicant) 25,000 euros (EUR) in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount. B. Costs and expenses 353. The applicants’ lawyer claimed, on behalf of his clients, EUR 15,390 for costs and expenses incurred before the domestic courts and in the proceedings before the Court. In substantiation, he submitted two legal assistance contracts signed by him and the sixth applicant on 18 June 2009 and 29 March 2011. The first contract empowered Mr Bushchenko to represent the sixth applicant in the domestic proceedings challenging the prosecutorial decision of 7 February 2007 in respect of the events in Izyaslav Prison at the end of January 2007. It stipulated an hourly charge-out rate of EUR 100. Under the second contract, Mr Bushchenko was to represent the sixth applicant’s interests in the proceedings before the Court at a rate of EUR 130 per hour. Both contracts stipulated that payment would be made after completion of the proceedings in Strasbourg and within the limits of the sum awarded by the Court in costs and expenses. 354. Mr Bushchenko also submitted four time-sheets and expense reports completed by him in respect of work done under the aforementioned contracts over the period of June 2009 – August 2011. According to him, he spent 69.5 hours asserting the applicants’ rights before the domestic courts and 68 hours in the proceedings before the Court. 355. The Government contested the claim as unsubstantiated and excessive. 356. 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 only the sixth applicant is contractually bound to pay fees vis-à-vis Mr Bushchenko. Having regard to the documents submitted, the Court considers those fees to have been “actually incurred” (see Tebieti Mühafize Cemiyyeti and Israfilov v. Azerbaijan, no. 37083/03, § 106, ECHR 2009). However, the Court considers that the claim is excessive and awards it – to the sixth applicant – partially, in the amount of EUR 10,000, plus any tax that may be chargeable to this applicant on that amount. C. Default interest 357. 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 torture) of the Convention under its substantial limb, on account of the ill-treatment the applicants had been subjected to. It was a commonly accepted fact that the protests by the prisoners had been confined to peaceful refusals to eat prison food, without a single violent incident being reported. They had further demonstrated a willingness to cooperate with prison department officials. While it had been impossible for the Court to establish the seriousness of all the bodily injuries and the level of the shock, distress and humiliation suffered by every single applicant, there had been no doubt that the authorities’ unexpected and brutal action had been grossly disproportionate and gratuitous, taken with the aim of crushing the protest movement, punishing the prisoners for their peaceful hunger strike and nipping in the bud any intention of their raising complaints. It must have caused severe pain and suffering and, even though it had not apparently resulted in any long-term damage to their health, could only be described as torture. The Court also held that there had been a violation of Article 3 of the Convention under its procedural limb, as the investigation into the applicants’ allegations of ill-treatment had not been thorough or independent, had failed to comply with the requirement of promptness and had lacked public scrutiny. Lastly, the Court found a violation of Article 1 (protection of property) of Protocol No. 1 to the Convention on account of a failure by the prison administration to return the applicants’ personal belongings. |
201 | Access to a lawyer | II. RELEVANT DOMESTIC LAW AND PRACTICE 21. The relevant provisions of Turkish law can be found in, among other judgments, Salduz v. Turkey ([GC], no. 36391/02, §§ 27-31, 27 November 2008) and Göç v. Turkey ([GC], no. 36590/97, § 34, ECHR 2002-V ). THE LAW 22. Relying on Article 6 §§ 1 and 3 (c) of the Convention, the applicant complained that he had had no legal assistance while he was in police custody and that he had not been sent a copy of the opinion of the Principal Public Prosecutor at the Court of Cassation. 23. The Government pleaded failure to comply with the six-month time -limit, referring to the date on which the final domestic decision had been taken (29 May 2002), and the date on which the application had been lodged (8 January 2003). Furthermore, they contended that the applicant had not exhausted domestic remedies, as required by Article 35 § 1 of the Convention, as he had failed to raise, even in substance, his complaints under Article 6 §§ 1 and 3 (c) in the national courts. 24. With regard to the six-month rule, the Court refers to its case-law according to which, where an applicant is entitled to be served automatically with a written copy of the final domestic decision, the object and purpose of Article 35 § 1 of the Convention are best served by counting the six-month period as running from the date of service of the written judgment ( see Worm v. Austria, 29 August 1997, § 33, Reports of Judgments and Decisions 1997-V). Where the domestic law does not provide for service, however, the Court considers it appropriate to take the date the decision was finalised as the starting-point, that being when the parties were definitely able to find out its content (see, mutatis mutandis, Papachelas v. Greece [GC], no. 31423/96, § 30, ECHR 1999-II, and Seher Karataş v. Turkey ( dec. ), no. 33179/96, 9 July 2002). 25. In the present case the Court notes that, at the material time, Court of Cassation judgments in criminal proceedings were not served on the parties. The latter could be informed only after the decision had been deposited with the registry of the first-instance court and/or an order to enforce the sentence had been served. 26. In the applicant ’ s case, the judgment of 29 May 2002 by the Court of Cassation, which was the final domestic decision, was not served on him or his counsel. On 19 August 2002 the text of the judgment was added to the case file kept at the registry of the Diyarbakır State Security Court and was made available to the parties. The six-month period thus started to run on 19 August 2002. Since the application was lodged less than six months after that date, the Government ’ s objection must be dismissed. 27. With regard to the alleged failure to exhaust domestic remedies the Court observes that, when he was in police custody, the applicant ’ s right to be assisted by a lawyer had been restricted under section 31 of Law no. 3842 on the ground that he was accused of an offence that fell within the jurisdiction of the State Security Courts. Furthermore, the Court notes that the practice of not communicating the opinion of the Principal Public Prosecutor was also in accordance with the legislation in force. Consequently, the Government ’ s objection cannot be upheld. 28. The Court notes that the applicant ’ s complaints under Article 6 §§ 1 and 3 (c) of the Convention 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. 29. With regard to the merits of the case, the Government pointed out that the applicant had exercised his right to remain silent while in police custody and that the absence of a lawyer had therefore in no way affected the observance of his defence rights. As to the complaint that the opinion of the Principal Public Prosecutor at the Court of Cassation had not been sent to the applicant, the Government referred to their observations in Göç ( cited above, § 54 ). 30. In relation to the absence of legal assistance in police custody, the Court reiterates that 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 a fair trial ( see Salduz, cited above, § 51; Poitrimol v. France, 23 November 1993, § 34, Series A no. 277-A; and Demebukov v. Bulgaria, no. 68020/01, § 50, 28 February 2008). 31. The Court is of the view that the fairness of criminal proceedings under Article 6 of the Convention requires that, as a rule, a suspect should be granted access to legal assistance from the moment he is taken into police custody or pre-trial detention. 32. In accordance with the generally recognised international norms, which the Court accepts and which form the framework for its case-law, an accused person is entitled, as soon as he or she is taken into custody, to be assisted by a lawyer, and not only while being questioned (for the relevant international legal materials see Salduz, cited above, §§ 37-44). Indeed, the fairness of proceedings requires that an accused be able to obtain the whole range of services specifically associated with legal assistance. In this regard, counsel has to be able to secure without restriction the fundamental aspects of that person ’ s defence: discussion of the case, organisation of the defence, collection of evidence favourable to the accused, preparation for questioning, support of an accused in distress and checking of the conditions of detention. 33. In the present case it is not disputed that the applicant did not have legal assistance while in police custody because it was not possible under the law then in force ( see Salduz, cited above, §§ 27 and 28). A systematic restriction of this kind, on the basis of the relevant statutory provisions, is sufficient in itself for a violation of Article 6 to be found, notwithstanding the fact that the applicant remained silent when questioned in police custody. 34. Accordingly, the Court finds that there has been a violation of Article 6 § 3 (c) taken in conjunction with Article 6 § 1. 35. As to the failure to send the applicant a copy of the opinion of the Principal Public Prosecutor at the Court of Cassation, the Court observes that it previously examined a complaint identical to that of the applicant and concluded that, in view of the nature of the prosecutor ’ s observations and the inability of the party in question to respond to them in writing, the non-communication of the opinion of the Principal Public Prosecutor at the Court of Cassation violated Article 6 § 1 ( see Göç v. Turkey [GC], no. 36590/97, § 55, ECHR 2002-V). Having examined the present case and the submissions of both parties, the Court finds that the Government have failed to provide any convincing facts or arguments capable of justifying a different conclusion on this occasion. 36. Accordingly, the Court considers that the applicant ’ s right to an adversarial procedure was breached. There has therefore been a violation of Article 6 § 1 of the Convention. 37. The applicant further complained of not having been informed of the reasons for his arrest and of the charge against him. He claimed that he had not had adequate facilities for the preparation of his defence (6 § 3 ( b ) ) and that he had not been able to examine the prosecution witnesses (6 § 3 ( d ) ). He further complained of the fact that the prosecution had used the police transcript from the audio-cassette found at his home as evidence, without having an independent expert examine its authenticity. 38. The Court has examined the applicant ’ s complaints as they were submitted (paragraph 37). Having regard to all the elements in its possession, it does not find any appearance of a breach of the rights and freedoms guaranteed by the Convention. The complaints are therefore manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention. 39. The matter of the application of Article 41 of the Convention remains. The applicant claimed 20,000 euros (EUR) in respect of pecuniary and non-pecuniary damage. 40. The Government contested these claims. 41. The Court does not discern any causal link between the violations found and the pecuniary damage alleged; it therefore rejects this claim. 42. On the other hand, ruling on an equitable basis, it awards the applicant EUR 1,000 in respect of non-pecuniary damage. 43. 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 § 3 (c) taken together with 6 § 1 of the Convention. It found that that restriction (which was systematic, as it was prescribed by the relevant provisions of Turkish law) of the right of an individual deprived of his liberty to have access to a lawyer was sufficient for it to be able to conclude that there had been a violation of Article 6 of the Convention, even though the applicant had remained silent while in police custody. |
834 | Searches and seizures carried out at a lawyer’s offices or home | II. RELEVANT DOMESTIC LAW 17. The search complained of was ordered in the context of criminal proceedings for insulting behaviour, an offence punishable by imprisonment for a maximum, where no physical violence is involved, of one year or a fine (Article 185 of the Criminal Code). 18. Article 13 para. 1 of the Basic Law ( Grundgesetz ) guarantees the inviolability of the home ( Wohnung ); this provision has been consistently interpreted by the German courts in a wide sense, to include business premises (see, in particular, the Federal Constitutional Court ’ s judgment of 13 October 1971 - Entscheidungssammlung des Bundesverfassungsgerichts, vol. 32, p. 54). 19. Article 103 of the Code of Criminal Procedure provides that the home and other premises ( Wohnung und andere Räume ) of a person who is not suspected of a criminal offence may be searched only in order to arrest a person charged with an offence, to investigate indications of an offence or to seize specific objects and provided always that there are facts to suggest that such a person, indications or objects is or are to be found on the premises to be searched. 20. Search warrants may be challenged, as regards their lawfulness, in proceedings instituted under Article 304 of the Code of Criminal Procedure and, as regards their manner of execution, in proceedings instituted under section 23(1) of the Introductory Act to the Courts Organisation Act. 21. In Germany a lawyer is an independent organ in the administration of justice and an independent counsel and representative in all legal matters. An unauthorised breach of secrecy by a lawyer is punishable by imprisonment for a maximum of one year or a fine (Article 203 para. 1(3) of the Criminal Code). A lawyer is entitled to refuse to give testimony concerning any matter confided to him in a professional capacity (Article 53 para. 1(2) and (3) of the Code of Criminal Procedure). The last-mentioned provisions, in conjunction with Article 97, prohibit, with certain exceptions, the seizure of correspondence between lawyer and client. PROCEEDINGS BEFORE THE COMMISSION 23. In his application (no. 13710/88) lodged with the Commission on 15 February 1988, Mr Niemietz alleged that the search had violated his right to respect for his home and correspondence, guaranteed by Article 8 (art. 8) of the Convention, and had also, by impairing the goodwill of his law office and his reputation as a lawyer, constituted a breach of his rights under Article 1 of Protocol No. 1 (P1-1). In addition, he submitted that, contrary to Article 13 (art. 13) of the Convention, he had no effective remedies before German authorities in respect of those complaints. 24. By decision of 5 April 1990, the Commission declared the complaints under Article 8 (art. 8) of the Convention and Article 1 of Protocol No. 1 (P1-1) admissible and the remainder of the application inadmissible. In its report of 29 May 1991 (Article 31) (art. 31), the Commission expressed the unanimous opinion that there had been a violation of Article 8 (art. 8) of the Convention and that no separate issue arose under Article 1 of Protocol No. 1 (P1-1). The full text of the Commission ’ s opinion is reproduced as an annex to this judgment [*]. FINAL SUBMISSIONS MADE TO THE COURT 25. At the hearing, the Agent of the Government invited the Court to find that the Federal Republic of Germany had not violated Article 8 (art. 8) of the Convention in the present case. The applicant, for his part, requested the Court to hold that the search of his office had constituted a breach of the Convention. AS TO THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 (art. 8) OF THE CONVENTION 26. Mr Niemietz alleged that the search of his law office had given rise to a breach of Article 8 (art. 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." This submission was accepted by the Commission, on the basis that the search constituted an unjustified interference with the applicant ’ s private life and home. A. Was there an "interference"? 27. In contesting the Commission ’ s conclusion, the Government maintained that Article 8 (art. 8) did not afford protection against the search of a lawyer ’ s office. In their view, the Convention drew a clear distinction between private life and home, on the one hand, and professional and business life and premises, on the other. 28. In arriving at its opinion that there had been an interference with Mr Niemietz ’ s "private life" and "home", the Commission attached particular significance to the confidential relationship that exists between lawyer and client. The Court shares the Government ’ s doubts as to whether this factor can serve as a workable criterion for the purposes of delimiting the scope of the protection afforded by Article 8 (art. 8). Virtually all professional and business activities may involve, to a greater or lesser degree, matters that are confidential, with the result that, if that criterion were adopted, disputes would frequently arise as to where the line should be drawn. 29. The Court does not consider it possible or necessary to attempt an exhaustive definition of the notion of "private life". However, it would be too restrictive to limit the notion 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. Respect for private life must also comprise to a certain degree the right to establish and develop relationships with other human beings. There appears, furthermore, to be no reason of principle why this understanding of the notion of "private life" should be taken to exclude activities of a professional or business nature since it is, after all, in the course of their working lives that the majority of people have a significant, if not the greatest, opportunity of developing relationships with the outside world. This view is supported by the fact that, as was rightly pointed out by the Commission, 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. Thus, especially in the case of a person exercising a liberal profession, his work in that context may form part and parcel of his life to such a degree that it becomes impossible to know in what capacity he is acting at a given moment of time. To deny the protection of Article 8 (art. 8) on the ground that the measure complained of related only to professional activities - as the Government suggested should be done in the present case - could moreover lead to an inequality of treatment, in that such protection would remain available to a person whose professional and non-professional activities were so intermingled that there was no means of distinguishing between them. In fact, the Court has not heretofore drawn such distinctions: it concluded that there had been an interference with private life even where telephone tapping covered both business and private calls (see the Huvig v. France judgment of 24 April 1990, Series A no. 176-B, p. 41, para. 8, and p. 52, para. 25); and, where a search was directed solely against business activities, it did not rely on that fact as a ground for excluding the applicability of Article 8 (art. 8) under the head of "private life" (see the Chappell v. the United Kingdom judgment of 30 March 1989, Series A no. 152-A, pp. 12-13, para. 26, and pp. 21-22, para. 51.) 30. As regards the word "home", appearing in the English text of Article 8 (art. 8), the Court observes that in certain Contracting States, notably Germany (see paragraph 18 above), it has been accepted as extending to business premises. Such an interpretation is, moreover, fully consonant with the French text, since the word "domicile" has a broader connotation than the word "home" and may extend, for example, to a professional person ’ s office. In this context also, it may not always be possible to draw precise distinctions, since activities which are related to a profession or business may well be conducted from a person ’ s private residence and activities which are not so related may well be carried on in an office or commercial premises. A narrow interpretation of the words "home" and "domicile" could therefore give rise to the same risk of inequality of treatment as a narrow interpretation of the notion of "private life" (see paragraph 29 above). 31. More generally, to interpret the words "private life" and "home" as including certain professional or business activities or premises would be consonant with the essential object and purpose of Article 8 (art. 8), namely to protect the individual against arbitrary interference by the public authorities (see, for example, the Marckx v. Belgium judgment of 13 June 1979, Series A no. 31, p. 15, para. 31). Such an interpretation would not unduly hamper the Contracting States, for they would retain their entitlement to "interfere" to the extent permitted by paragraph 2 of Article 8 (art. 8-2); that entitlement might well be more far-reaching where professional or business activities or premises were involved than would otherwise be the case. 32. To the above-mentioned general considerations, which militate against the view that Article 8 (art. 8) is not applicable, must be added a further factor pertaining to the particular circumstances of the case. The warrant issued by the Munich District Court ordered a search for, and seizure of, "documents" - without qualification or limitation - revealing the identity of Klaus Wegner (see paragraph 10 above). Furthermore, those conducting the search examined four cabinets with data concerning clients as well as six individual files (see paragraph 11 above); their operations must perforce have covered "correspondence" and materials that can properly be regarded as such for the purposes of Article 8 (art. 8). In this connection, it is sufficient to note that that provision does not use, as it does for the word "life", any adjective to qualify the word "correspondence". And, indeed, the Court has already held that, in the context of correspondence in the form of telephone calls, no such qualification is to be made (see the above-mentioned Huvig judgment, Series A no. 176-B, p. 41, para. 8, and p. 52, para. 25). Again, in a number of cases relating to correspondence with a lawyer (see, for example, the Schönenberger and Durmaz v. Switzerland judgment of 20 June 1988, Series A no. 137, and the Campbell v. the United Kingdom judgment of 25 March 1992, Series A no. 233), the Court did not even advert to the possibility that Article 8 (art. 8) might be inapplicable on the ground that the correspondence was of a professional nature. 33. Taken together, the foregoing reasons lead the Court to find that the search of the applicant ’ s office constituted an interference with his rights under Article 8 (art. 8). B. Was the interference "in accordance with the law"? 34. The applicant submitted that the interference in question was not "in accordance with the law", since it was based on suspicions rather than facts and so did not meet the conditions laid down by Article 103 of the Code of Criminal Procedure (see paragraph 19 above) and since it was intended to circumvent the legal provisions safeguarding professional secrecy. 35. The Court agrees with the Commission and the Government that that submission must be rejected. It notes that both the Munich I Regional Court and the Federal Constitutional Court considered that the search was lawful in terms of Article 103 of the aforesaid Code (see paragraphs 15-16 and 19 above) and sees no reason to differ from the views which those courts expressed. C. Did the interference have a legitimate aim or aims? 36. Like the Commission, the Court finds that, as was not contested by the applicant, the interference pursued aims that were legitimate under paragraph 2 of Article 8 (art. 8-2), namely the prevention of crime and the protection of the rights of others, that is the honour of Judge Miosga. D. Was the interference "necessary in a democratic society"? 37. As to whether the interference was "necessary in a democratic society", the Court inclines to the view that the reasons given therefor by the Munich District Court (see paragraph 10 above) can be regarded as relevant in terms of the legitimate aims pursued. It does not, however, consider it essential to pursue this point since it has formed the opinion that, as was contended by the applicant and as was found by the Commission, the measure complained of was not proportionate to those aims. It is true that the offence in connection with which the search was effected, involving as it did not only an insult to but also an attempt to bring pressure on a judge, cannot be classified as no more than minor. On the other hand, the warrant was drawn in broad terms, in that it ordered a search for and seizure of "documents", without any limitation, revealing the identity of the author of the offensive letter; this point is of special significance where, as in Germany, the search of a lawyer ’ s office is not accompanied by any special procedural safeguards, such as the presence of an independent observer. More importantly, having regard to the materials that were in fact inspected, the search impinged on professional secrecy to an extent that appears disproportionate in the circumstances; it has, in this connection, to be recalled that, where a lawyer is involved, an encroachment on professional secrecy may have repercussions on the proper administration of justice and hence on the rights guaranteed by Article 6 (art. 6) of the Convention. In addition, the attendant publicity must have been capable of affecting adversely the applicant ’ s professional reputation, in the eyes both of his existing clients and of the public at large. E. Conclusion 38. The Court thus concludes that there was a breach of Article 8 (art. 8). II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 (P1-1) 39. Mr Niemietz also argued that, by impairing his reputation as a lawyer, the search constituted a violation of 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." 40. Having already taken into consideration, in the context of Article 8 (art. 8), the potential effects of the search on the applicant ’ s professional reputation (see paragraph 37 above), the Court agrees with the Commission that no separate issue arises under Article 1 of Protocol No. 1 (P1-1). III. APPLICATION OF ARTICLE 50 (art. 50) OF THE CONVENTION 41. Article 50 (art. 50) of the Convention reads: "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." 42. In a letter filed on 16 December 1991 (see paragraph 4 above), the applicant requested the Court, taking into account in particular the damage caused to the reputation of his practice, to award him under Article 50 (art. 50) compensation of a type and amount to be determined by the Court in its discretion. 43. The Court is unable to accede to that request. The applicant has, in the first place, not established that the breach of Article 8 (art. 8) caused him pecuniary damage. If and in so far as it may have occasioned non-pecuniary damage, the Court considers, like the Delegate of the Commission, that its finding of a violation constitutes of itself sufficient just satisfaction therefor. Finally, although Mr Niemietz stated at the hearing that his request extended to his costs and expenses referable to the proceedings in Germany and in Strasbourg, he has supplied no particulars of that expenditure. | The Court held that there had been a violation of Article 8 of the Convention finding that the interference complained of had not been proportionate to the legitimate aim pursued – namely the prevention of crime and the protection of the rights of others – and could not be regarded as necessary in a democratic society. The Court noted in particular that, while it was true that the offence in connection with which the search was effected, involving as it did not only an insult to but also an attempt to bring pressure on a judge, could not be classified as no more than minor, on the other hand, the warrant was drawn in broad terms. Moreover, having regard to the materials that were in fact inspected, it considered that the search had impinged on professional secrecy to an extent that appeared disproportionate in the circumstances. In this connection, the Court recalled that, where a lawyer is involved, an encroachment on professional secrecy may have repercussions on the proper administration of justice and hence on the rights guaranteed by Article 6 (right to a fair trial) of the Convention. |
822 | Right to education (Article 2 of Protocol No. 1) | RELEVANT LEGAL FRAMEWORK AND PRACTICE RELEVANT DOMESTIC LAW AND PRATIC UEDomestic legal system Domestic legal system Domestic legal system 17. Article 38 of the Constitution provides that persons with disabilities have a right to education and vocational training. 18. Framework Law no. 104 of 5 February 1992 on assistance for, the social integration of, and the protection of the rights of persons with disabilities (“Law no. 104 of 1992”) includes the following provisions: Article 3 – Entitled persons “1. ’Person with a disability’ means anyone presenting a physical, mental or sensorial impairment, whether stabilised or evolutive, which causes difficulties in learning, relationships with others occupational integration and leads to a social handicap or marginalisation. ...” Article 8 – Social integration “The social inclusion and integration of the person with a disability shall be ensured by means of: ... d) measures securing the disabled person’s rights to information and to education, particularly as regards educational facilities and technologies, programmes, specialist languages, evaluation tests and the availability of specially qualified personnel, including both teachers and non-teaching staff. ...” Article 12 – Right to education “... 2. The right of persons with disabilities to education shall be guaranteed in all sections of nursery schools, in ordinary classes of schools at all levels and in universities and other institutes of higher education. 3. Integration at school is aimed at developing the disabled person’s potential in the fields of learning, communication, relationships with others and socialisation. 4. The exercise of the right to education must not be impeded by learning difficulties or other difficulties stemming from a disability. 5 Where it is noted that a child, a pupil or a student suffers from a disability with the meaning of Article 3 above, an operational profile shall be drawn up in accordance with the criteria of the bio-psycho-social model of the International Classification of Functioning, Disability and Health (ICFDH) adopted by the World Health Organisation (WHO), for the purposes of designing the individual project laid down in section 14 of Law no. 328 of 8 November 2000 and drawing up a personalised educational plan. ...” Article 13 – Integration at school “1. The educational integration of persons with disabilities in [nursery school] sections and the ordinary classes of schools at all levels and in universities and other institutes of higher education is, in particular, without prejudice to the provisions of Law nos. 360 of 11 May 1976 and 517 of 4 August 1977 and their subsequent amendments, by the following means: a) Ensuring coordination between school services, health, social, cultural, recreational and sports services and the other local and regional services administered by public or private agencies. To that end the local authorities, the school bodies and the local health units shall, in the framework of their respective competences, conclude the programme agreements set out in section 27 of Law no. 142 of 8 June 1990. Those agreements, the conclusion of which is governed by the guidelines laid down within three months of the entry into force of the present Law by decision of the Minister of Education in agreement with the Minister of Social Affairs and the Minister for Health, are aimed at drawing up, implementing and jointly reviewing personalised educational, rehabilitation and socialisation projects, as well as coordinating school and out-of- school activities. They shall also lay down the criteria to be fulfilled by the public and private agencies in question in order to participate in the aforementioned coordinated cooperative activities. b) Supplying schools and universities with technical facilities, educational material and all requisite forms of technical assistance, independently from any general and functional assistance possibly guaranteed at the individual level for the purposes of the effective exercise of the right to education, in particular in the framework of agreements concluded with specialist centres with a view to provision by the latter of educational consultancy and special educational materials produced or adapted by them. ... 2. For the purposes laid down in paragraph 1, the local authorities and local health units may also decide to adapt the organisation and functioning of day nurseries to the needs of children with disabilities in order to launch the rehabilitation, socialisation and integration process at as early an age as possible, and to assign teaching staff, operators and specialist assistants to them. 3. Without prejudice to the obligation on local authorities, pursuant to Presidential Decree No. 616 of 24 July 1977 and subsequent amendments thereto, to provide autonomy and personal communication assistance [1] for pupils with physical or sensory disabilities, access by such pupils to support activities is guaranteed in schools at all levels by assigning specialist teachers to the tasks in question. 4. Support teacher posts in secondary education shall be apportioned among staff who are serving on the date of entry into force of the presented law such as to ensure a ratio at least equal to that laid down for the other educational levels, within the limits of available financial resources as set out in section 42 (6) (h). ... 6. The support teacher [2] shares responsibility for the pupils with the teacher of the section or class in which he or she is operating, and therefore helps to develop educational activities and to devise and supervise activities related to the competence of inter-class advisors, class advisers and teaching teams. ...” Relevant case-law of the Court of Cassation 19. The combined divisions of the Court of Cassation has delivered the following judgments in this sphere, the relevant sections of which are reproduced below. Judgment no. 25011 of 25 November 2014: “As regards support for pupils with disabilities, the personalised educational plan as defined in section 12 of Law no. 104 of 5 February 1992 requires the school authorities to guarantee the provision of the scheduled number of hours of support, allowing them no discretion to apply any reduced version of the measure on grounds of insufficient resources; this also applies to nursery schools even though they do not come under the compulsory schooling requirement. Thus a failure on the part of the authorities to ensure the provision of the support laid down in the plan restricts the disabled person’s right to equal opportunities in access to school services, and where such restriction is not accompanied by a corresponding cut in the educational facilities provided for non-disabled pupils, that restriction will amount to indirect discrimination, a matter within the jurisdiction of the civil courts” Judgment no. 25101 of 8 October 2019: “Where, with the help of the teachers in the host school and public health staff, a personalised educational plan has been drawn up setting the number of hours of school support required for a pupil with a very severe disability, the school authorities have no discretionary power to revise or cancel, unilaterally, on the grounds of insufficient resources, the additional support measures set out in that plan. They are therefore required to appoint specialist teaching staff to support the pupil in question, if necessary by creating a support post in derogation from the standard pupil-teacher ratio. Where it has been established that the authorities have completely or partly failed in their duty to provide the necessary services, the disabled person’s fundamental right will have been restricted, and if the educational provision for [non-disabled] pupils has not been reduced to an equivalent extent, the situation will amount to indirect discrimination as prohibited under section 2 of Law no. 67 of 2006. Indeed, indirect discrimination can also stem from a failure to act on the part of the public authorities responsible for organising schooling to the detriment of pupils with disabilities as compared with other pupils. The civil courts therefore hold jurisdiction for such matters, and complainants do not have to explicitly argue in their applications for protection that the authorities in question engaged in discriminatory behaviour”. Judgment no. 9966 of 20 April 2017, where the Court of Cassation reaffirmed the conclusion of judgment no. 25011 of 25 November 2014, adding the following: “...private schools must provide disabled pupils with the same support services as those provided by state schools. State subsidies only partly cover the cost of such services. Thus, indirect discrimination attributable to the State authorities consists in a failure to honour the obligation to provide the aforementioned subsidies leading to a reduction in educational and social service provision by private schools, and not a refusal to cover the total cost of such service, which is not incumbent on the authorities.” INTERNATIONAL LAW AND PRACTICE 20. The international materials relevant to the present case are described in Çam v. Turkey (no. 51500/08, §§ 37 ‑ 38, 23 February 2016; see additionally Zehnalová and Zehnal v. the Czech Republic (dec.), no. 38621/97, ECHR 2002 ‑ V; Mółka v. Poland (dec.), no. 56550/00, ECHR 2006 ‑ IV; and Farcaş v. Romania (dec.), no. 32596/04, §§ 68 ‑ 70, 14 September 2010). International Covenant on Economic, Social and Cultural Rights 21. Article 13 of the International Covenant on Economic, Social and Cultural Rights provides: “The States Parties to the present Covenant recognize the right of everyone to education. They agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms. They further agree that education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace.” Article 2 § 2 also provides: “... the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” 22. In General Comment no. 5: Persons with Disabilities, E/1995/22 of 9 December 1994, the UN Committee on Economic, Social and Cultural Rights explicitly stated the following: “3. The obligation to eliminate discrimination on the grounds of disability 15. Both de jure and de facto discrimination against persons with disabilities have a long history and take various forms. They range from invidious discrimination, such as the denial of educational opportunities, to more ‘subtle’ forms of discrimination such as segregation and isolation achieved through the imposition of physical and social barriers. For the purposes of the Covenant, ‘disability-based discrimination’ may be defined as including any distinction, exclusion, restriction or preference, or denial of reasonable accommodation based on disability which has the effect of nullifying or impairing the recognition, enjoyment or exercise of economic, social or cultural rights. Through neglect, ignorance, prejudice and false assumptions, as well as through exclusion, distinction or separation, persons with disabilities have very often been prevented from exercising their economic, social or cultural rights on an equal basis with persons without disabilities. The effects of disability-based discrimination have been particularly severe in the fields of education, employment, housing, transport, cultural life, and access to public places and services.” 23. The UN Committee on Economic, Social and Cultural Rights reaffirmed its General Comment no. 5 in its General Comment no. 20: Non-discrimination in economic, social and cultural rights, E/C.12/GC/20 of 2 July 2009, as follows: “B. Other status 24. The nature of discrimination varies according to context and evolves over time. A flexible approach to the ground of ‘other status’ is thus needed in order to capture other forms of differential treatment that cannot be reasonably and objectively justified and are of a comparable nature to the expressly recognized grounds in article 2, paragraph 2. These additional grounds are commonly recognized when they reflect the experience of social groups that are vulnerable and have suffered and continue to suffer marginalization. ... Disability 25. In its general comment No. 5, the Committee defined discrimination against persons with disabilities as ‘any distinction, exclusion, restriction or preference, or denial of reasonable accommodation based on disability which has the effect of nullifying or impairing the recognition, enjoyment or exercise of economic, social or cultural rights’. The denial of reasonable accommodation should be included in national legislation as a prohibited form of discrimination on the basis of disability. States parties should address discrimination, such as prohibitions on the right to education, and denial of reasonable accommodation in public places such as public health facilities and the workplace, as well as in private places, e.g. as long as spaces are designed and built in ways that make them inaccessible to wheelchairs, such users will be effectively denied their right to work.” UN Convention on the Rights of Persons with Disabilities 26. Regard should also be had to the following passages from the Convention on the Rights of Persons with Disabilities (“CRPD”), adopted on le 13 December 2006 by the United Nations General Assembly (United Nations Treaty Series, Vol. 2515, p. 3), which Italy signed on 30 March 2007 and ratified on 15 May 2009. Article 2 – Definitions “For the purposes of the present Convention: ‘Communication’ includes languages, display of text, Braille, tactile communication, large print, accessible multimedia as well as written, audio, plain-language, human-reader and augmentative and alternative modes, means and formats of communication, including accessible information and communication technology; ‘Language’ includes spoken and signed languages and other forms of non-spoken languages; ‘Discrimination on the basis of disability’ means any distinction, exclusion or restriction on the basis of disability which has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise, on an equal basis with others, of all human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. It includes all forms of discrimination, including denial of reasonable accommodation; ‘Reasonable accommodation’ means necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms; ...” Article 3 – General principles “The principles of the present Convention shall be: 1. Respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons; ...” Article 24 – Éducation “1. States Parties recognize the right of persons with disabilities to education. With a view to realizing this right without discrimination and on the basis of equal opportunity, States Parties shall ensure an inclusive education system at all levels and lifelong learning directed to: a. The full development of human potential and sense of dignity and self-worth, and the strengthening of respect for human rights, fundamental freedoms and human diversity; b. The development by persons with disabilities of their personality, talents and creativity, as well as their mental and physical abilities, to their fullest potential; c. Enabling persons with disabilities to participate effectively in a free society. 2. In realizing this right, States Parties shall ensure that: a) Persons with disabilities are not excluded from the general education system on the basis of disability, and that children with disabilities are not excluded from free and compulsory primary education, or from secondary education, on the basis of disability; b) Persons with disabilities can access an inclusive, quality and free primary education and secondary education on an equal basis with others in the communities in which they live; c) Reasonable accommodation of the individual’s requirements is provided; d) Persons with disabilities receive the support required, within the general education system, to facilitate their effective education; e) Effective individualized support measures are provided in environments that maximize academic and social development, consistent with the goal of full inclusion. 3. States Parties shall enable persons with disabilities to learn life and social development skills to facilitate their full and equal participation in education and as members of the community. To this end, States Parties shall take appropriate measures, including: a) Facilitating the learning of Braille, alternative script, augmentative and alternative modes, means and formats of communication and orientation and mobility skills, and facilitating peer support and mentoring; ...” The Council of Europe 27. The European Social Charter (Revised) (ETS no. 163), which opened for signature on 3 May 1996 and was ratified by Italy on 5 July 1999, includes the following provision: Article 15 – The right of persons with disabilities to independence, social integration and participation in the life of the community “With a view to ensuring to persons with disabilities, irrespective of age and the nature and origin of their disabilities, the effective exercise of the right to independence, social integration and participation in the life of the community, the Parties undertake, in particular: 1. to take the necessary measures to provide persons with disabilities with guidance, education and vocational training in the framework of general schemes wherever possible or, where this is not possible, through specialised bodies, public or private; ... 3. to promote their full social integration and participation in the life of the community in particular through measures, including technical aids, aiming to overcome barriers to communication and mobility and enabling access to transport, housing, cultural activities and leisure.” Part VArticle E – Non-discrimination “The enjoyment of the rights set forth in this Charter shall be secured without discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national extraction or social origin, health, association with a national minority, birth or other status.” 28. Recommendation No. R (92) 6 of the Committee of Ministers on a coherent policy for people with disabilities, adopted on 9 April 1992, invites member States to “guarantee the right of people with disabilities to an independent life and full integration into society” and to “recognise society’s duty to make this possible”, in order to ensure that people with disabilities have real “equality of opportunity” with other people. Public authority action must be aimed at ensuring that people with disabilities can “have as much mobility as possible, and access to buildings and means of transport”, “play a full role in society” and “take part in economic, social, leisure, recreational and cultural activities”. 29. Recommendation Rec(2006)5 of the Committee of Ministers to member States on the Council of Europe Action Plan to promote the rights and full participation of people with disabilities in society: improving the quality of life of people with disabilities in Europe 2006-2015, adopted on 5 April 2006, lays down several action lines, the fourth of which reads as follows: Action line no. 4: Education “3.4.1. Introduction Education is a basic factor in ensuring social inclusion and independence for all people, including those with disabilities. Social influences, for example from families and friends, also contribute, but for the purposes of this action line education shall cover all stages of life, including pre-school, primary, secondary, high school education and professional training, as well as life-long learning. The creation of opportunities for disabled people to participate in mainstream education is not only important for disabled people but will also benefit non-disabled people’s understanding of human diversity. Most education systems provide access to mainstream education and specialised educational structures for disabled people, as appropriate. Mainstream and specialised structures should be encouraged to work together to support disabled people in their local communities, but this should be consistent with the goal of full inclusion. 3.4.2. Objectives i. To ensure that all persons, irrespective of the nature and degree of their impairment, have equal access to education, and develop their personality, talents, creativity and their intellectual and physical abilities to their full potential; ii. to ensure that disabled people have the opportunity to seek a place in mainstream education by encouraging relevant authorities to develop educational provision to meet the needs of their disabled population; iii. to support and promote lifelong learning for disabled people of all ages and facilitate efficient and effective transitions between each phase of their education and between education and employment; iv. to foster at all levels of the educational system, including in all children from an early age, an attitude of respect for the rights of people with disabilities. 3.4.3. Specific actions by member states i. To promote legislation, policies and planning to prevent discrimination against children, young people and adults with disabilities in the access to all phases of their education from early years through to adult provision. In doing so, consult with disabled users, parents, and carers, voluntary organisations, and other relevant professional bodies, if appropriate; ii. to encourage and support the development of a unified education system, including mainstream and specialised educational provision, which promotes the sharing of expertise and greater inclusion of disabled children, young people and adults in the community; iii. to enable the early appropriate assessment of the special educational needs of disabled children, young people and adults to inform their educational provision and planning; iv. to monitor the implementation of individual education plans and facilitate a co-ordinated approach to education provision throughout and towards employment; v. to ensure that people with disabilities, including children, receive the support required, within the mainstream education system, to facilitate their effective education. In exceptional circumstances, where their professionally-assessed special education needs are not met within the mainstream education system, member states will ensure that effective alternative support measures are provided consistent with the goal of full inclusion. All special and mainstream provisions should encourage the transition to mainstream education and reflect the same goals and standards; vi. to encourage the development of initial and ongoing training for all professionals and staff working across all phases of education to incorporate disability awareness and the use of appropriate educational techniques and materials to support disabled pupils and students where appropriate; vii. to ensure that all educational material and schemes provided through the general educational system are accessible to persons with disabilities; viii. to include, in school civic education syllabuses, subjects relating to people with disabilities as people who have the same rights as all other citizens; ix. to ensure that disability awareness is a key part of education programmes in mainstream schools and institutions; x. to take steps to make places of education and training accessible for persons with disabilities, including by the provision of personal support and of reasonable adjustments (including equipment) to meet their needs; xi. to ensure that parents of disabled children are active partners in the process of the development of the individualised education plans of their children; xii. to ensure access to non-formal education allowing disabled youth to develop needed skills otherwise unattainable through formal education; ...” 30. For its part, the Parliamentary Assembly of the Council of Europe addressed these matters in its Recommendation 1185 (1992) on rehabilitation policies for the disabled, adopted on 7 May 1992. This text emphasises that “our societies have the duty to tailor their norms to the specific needs of disabled persons in order to ensure that they can live autonomous lives”. To that end, the governments and competent authorities are called upon “to seek and encourage effective and active participation by disable people in community and social life” and therefore to ensure “the removal of architectural obstacles”. 31. On 30 January 2015 the Assembly adopted Recommendation 2064 (2015), titled “Equality and inclusion for people with disabilities”, which comprises the following passages: “1. The Parliamentary Assembly refers to its Resolution 2039 (2015) on equality and inclusion for people with disabilities. 2. The Assembly welcomes the contribution of the Council of Europe Action Plan to promote the rights and full participation of people with disabilities in society: improving the quality of life of people with disabilities in Europe 2006-2015 to the development of national policies which take account of the rights of people with disabilities. The action plan has also helped to make people see disability as a human rights issue. 3. The Assembly notes, however, that the full enjoyment of the rights of people with disabilities has by no means been achieved in Council of Europe member States. The principles set out in international instruments are not reflected in the everyday reality experienced by people with disabilities. Resolute action by the Council of Europe and the member States in the area of disability is therefore necessary. 4. The Assembly therefore recommends that the Committee of Ministers: 4.1. evaluate the implementation of the Action Plan for people with disabilities 2006-2015 and draw lessons from the ten-year period during which it was implemented in the member States; 4.2. define on this basis a new road map for the period from 2016 to 2020, in close consultation with the organisations representing people with disabilities; 4.3. focus this new road map on priority issues such as the legal capacity of people with disabilities and the measures aimed at ensuring their dignity and full inclusion in society; 4.4. invite the Council of Europe Development Bank to make compliance with accessibility requirements a condition for granting loans for construction and renovation projects and not to finance the construction of large institutions for people with disabilities; 4.5. ensure that disability is taken into account in the specific activities conducted by the Council of Europe, in particular in Council of Europe activities and campaigns to combat violence and hate speech.” THE LAW ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION READ IN CONJUNCTION WITH Article 2 of protocol no. 1 32. The applicant complained of an infringement of her right to education. In that connection it pointed out that for two whole school years she had been unable to receive the specialist assistance prescribed by law. She also considered that the State had failed in its positive obligation to ensure equal opportunities for persons with disabilities. She relied on Article 2 of Protocol No. 1, which reads as follows: “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.” 33. The applicant also complained that she had sustained discriminatory treatment on account of her disability, in breach of Article 14 of the Convention. The provision reads as follows: “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” Subject matter of the dispute 34. The Court considers that the core of the applicant’s complaint is the allegation that she sustained discriminatory treatment. She therefore considers that the case should primarily be examined under Article 14 of the Convention read in conjunction with Article 2 of Protocol No. 1 (see, for a similar approach, Oršuš and Others v. Croatia [GC], no. 15766/03, §§ 143 ‑ 145, ECHR 2010, and Ponomaryovi v. Bulgaria, no. 5335/05, § 45, ECHR 2011; see also Enver Şahin v. Turkey, no. 23065/12, § 32, 30 January 2018), it being understood that the scope of Article 14 of the Convention also covers the prohibition of discrimination based on disability (see, for example, Glor v. Switzerland, no. 13444/04, § 80, ECHR 2009), but also the requirement for States to ensure “reasonable accommodation” that would help correct factual inequalities which are unjustified and therefore amount to discrimination. Admissibility 35. The Government pleaded that the application had been lodged out of time. They submitted in particular that the final domestic decision had been given on 25 May 2015 and that the date stamped on the application form was 30 November 2015. 36. The applicant contested that argument. She submitted that she had sent in her application on 24 November 2015, and that she had therefore applied to the Court on that date. In support of her submissions she presented copies of documents certifying that the application had been sent off on 24 November and, according to the acknowledgement of receipt of the registered letter, had arrived at the Court Registry on 27 November. 37. The Court reiterates that the date on which the six-month time-limit laid down in Article 35 § 1 of the Convention starts running ( dies a quo ) is the date on which the final domestic decision is served on the applicant (see, among many other authorities, Sabri Güneş v. Turkey [GC], no. 27396/06, § 60, 29 June 2012), and that, pursuant to Rule 47 § 6 (a) of the Rules of Court, the date on which the application is lodged for the purposes of calculating the six-month time-limit ( dies ad quem ) is the date when the form was dispatched, as shown by the postmark, and not the date stamped by the Registry on the application acknowledging receipt (see Vasiliauskas v. Lithuania [GC], no. 35343/05, § 117, ECHR 2015). 38. In the instant case, the Court observes that the final domestic decision was the judgment of the Consiglio di Stato. It further notes that the envelope containing the application was dispatched on 24 November 2015, according to the Italian postmark. The Court concludes therefore that the application was indeed lodged within six months of the final domestic decision and that, consequently, it was not submitted out of time. 39. It therefore rejects the Government’s objection. 40. The Court notes that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. MeritsThe parties’ submissions The parties’ submissions The parties’ submissions (a) The applicant 41. The applicant submitted that for two school years she had not been in receipt of the specialist assistance prescribed by Law no. 104 of 1992, despite her parents’ many requests. She added that that two-year period, which she considered very lengthy, had coincided with her arrival at primary school, thus jeopardising her chances of progressing and integrating into the school system. 42. She further pleaded that the cost of providing the specialist educational services which she had needed would have had a very minimal impact on the municipal council’s budget. She argued that in failing to allocate resources to finance specialist educational services, the local authorities had chosen not to provide school support for children with disabilities. 43. Relying on the Court’s case-law (see Velyo Velev v. Bulgaria, no. 16032/07, ECHR 2014, and Glor, cited above), the applicant submitted that the safeguards on the right to education could not be impeded or restricted for budgetary reasons. She added that in the present case, the municipal council had had sufficient resources to introduce the measures to which she had been entitled. She also argued that it transpired from the Court’s case-law that the margin of appreciation which the Contracting States enjoyed in balancing the right to education with other interests, in particular those of a financial nature, was considerably reduced, especially in the case of persons with disabilities (see Glor, cited above, § 84). 44. Finally, she submitted that budgetary considerations could not justify a violation of the fundamental right to education and that, therefore, the Government had put forward no valid argument in support of the authorities’ failure to provide her with the assistance to which she had been entitled under national law, the Italian Constitution and the European Convention. 45. In conclusion, the applicant considered that the present case was essentially characterised by a systematic violation of her right to education. (b) The Government 46. The Government explained that the reason why the applicant had, in the school years 2010/2011 and 2011/2012, been unable to benefit from all the types of support provided for in section 13 of Law no. 104 of 1992 related to the budgetary cuts laid down in the 2011 Finance Law (Law no. 220 of 13 December 2010), which had explicitly earmarked a specific sum to finance the provision of home help to persons suffering from amyotrophic lateral sclerosis (“ALS”). They pointed out that the amount allocated to the Campania Region (EUR 9,070,000 ) had proved insufficient to cover all the types of school support once the budget earmarked for ALS sufferers had been deducted. They submitted that that illness was much more serious than that suffered by the applicant. 47. Under those conditions, the Government submitted that the action taken at the local level had been consistent with what could reasonably have been expected of the authorities, having regard to their limited resources. They argued that several measures had been adopted to help the applicant to overcome the difficulties related to her disability and to facilitate her educational integration, submitting that a lack of resources at the regional level had led to a suspension, for two school years, of only one of those measures, which was insufficient to amount to a major infringement of the applicant’s right to school support. Underlining, in particular, that the school attended by the applicant had used some of its own resources to provided her with assistance, the Government submitted that in view of the need to prioritise the needs of persons suffering from ALS, the situation had amounted to a violation neither of Article 14 in conjunction with Article 2 of Protocol No. 1 nor, a fortiori, of Article 8 of the Convention. 48. Lastly, the Government argued that while the Court had on many occasions found a violation of the Convention on account of mismanagement or delayed allocation of funds, it had never done so in cases of non-existent funds. Furthermore, even though the region had faced a lack of resources for two successive school years, the school had managed to cope with the situation and had succeeded, under its own steam/by means of its own resources, to provide support to the applicant, who had consistently received the type of support to which she had been entitled for twenty-four hours per week. The Court’s assessment (a) General principles 49. The Court reiterates that it has already had occasion to point out that in a democratic society, the right to education is indispensable to the furtherance of human rights and plays a fundamental role (see Velyo Velev, cited above, § 33), and that education is one of the most important public services in a modern State. However, it also acknowledges that education is an activity that is complex to organise and expensive to run, whereas the resources that the authorities can devote to it are necessarily finite. It is also true that in deciding how to regulate access to education, a State must strike a balance between, on the one hand, the educational needs of those under its jurisdiction and, on the other, its limited capacity to accommodate them. However, the Court cannot overlook the fact that, unlike some other public services, education is a right that enjoys direct protection under the Convention (ibid.). 50. The Court reaffirms that, in interpreting and applying Article 2 of Protocol No. 1, it must have regard to the fact that the Convention is to be read as a whole, and interpreted in such a way as to promote internal consistency and harmony between its various provisions (see Stec and Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01, § 48, ECHR 2005 ‑ X, and Austin and Others v. the United Kingdom [GC], nos. 39692/09 and 2 others, § 54, ECHR 2012). Accordingly, Article 2 of Protocol No. 1 must be interpreted in the light, in particular, of Article 8 of the Convention, which safeguards everyone’s right to respect for his or her private life» (see Catan and Others v. the Republic of Moldova and Russia [GC], nos. 43370/04 and 2 others, §§ 136 and 143, ECHR 2012). 51. The Court reiterates that in interpreting and applying Article 2 of Protocol No. 1, account must also be taken of any relevant rules and principles of international law applicable in relations between the Contracting Parties and the Convention should so far as possible be interpreted in harmony with other rules of international law of which it forms part (ibid., § 136). Regard must therefore be had in the instant case to the provisions relating to the right to education set out in instruments such as the European Social Charter (Revised) or the UN Convention on the Rights of Persons with Disabilities (see Timishev v. Russia, nos. 55762/00 and 55974/00, § 64, ECHR 2005 ‑ XII; Catan and Others, cited above, § 136; and Çam, cited above, § 53). 52. As regards the prohibition set forth in Article 14 of the Convention, the Court reiterates that discrimination means treating differently, without an objective and reasonable justification, persons in similar situations, and that “no objective and reasonable justification” means that the distinction in issue 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 Biao v. Denmark [GC], no. 38590/10, §§ 90 and 93, 24 May 2016; Molla Sali v. Greece [GC], no. 20452/14, §§ 135-136, 19 December 2018, and Çam, cited above, § 54 ). However, Article 14 does not prohibit member States 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, among other judgments, Guberina v. Croatia, no. 23682/13, § 72, 22 March 2016). Furthermore, the Contracting State enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment (see Vallianatos and Others v. Greece [GC], nos. 29381/09 and 32684/09, § 76, ECHR 2013). 53. When examining a case under Article 14 of the Convention, the Court must have regard to developments in international and European law and respond, for example, to any emerging consensus as to the standards to be achieved (see, mutatis mutandis, Konstantin Markin v. Russia [GC], no. 30078/06, § 126, ECHR 2012, and Fabris v. France [GC], no. 16574/08, § 56, ECHR 2013). To that effect, the Court notes the importance of the fundamental principles of universality and non-discrimination in the exercise of the right to education, which are enshrined in many international (see the relevant international materials in paragraphs 20 ‑ 31 above). It further emphasises that those instruments have recognised inclusive education, aimed at promoting equal opportunities for all, particularly for persons with disabilities (see Çam, cited above, § 64, and the references therein). Inclusive education therefore forms part of the States’ international responsibility in this sphere (see Enver Şahin v. Turkey no. 23065/12, § 62, 30 January 2018). 54. The Court also reiterates that if a restriction on fundamental rights applies to a particularly vulnerable group in society, who have 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 restriction in question. The Court has already identified a number of such vulnerable groups that suffered different treatment on account of their characteristics or status, including disability (see Glor, cited above, § 84; Alajos Kiss v. Hungary, no. 38832/06, § 42, 20 May 2010; Kiyutin v. Russia, no. 2700/10, § 63, ECHR 2011; and Guberina, cited above, § 73). Moreover, any measure relating to children with disabilities must prioritise the best interests of the child (see paragraph 34 above, Article 7 § 2 CRPD). Nevertheless, in any event, regardless of the State’s margin of appreciation, the final decision as to observance of the Convention’s requirements rests with the Court (see, among other authorities, Konstantin Markin v. Russia [GC], no. 30078/06, § 126, ECHR 2012). (a) Application of these principles to the present case (i) Establishing the framework of the assessment 55. The Court observes at the outset that the Italian legal system secures the right of education for children with disabilities in the form of inclusive education in ordinary schools. In Italy all children attend a single type of school throughout their period of compulsory education: children with disabilities are integrated into ordinary classes in State schools, and the State has introduced educational psychology services responsible for ensuring the presence in the relevant classes of a “support” teacher to coordinate the assistants’ activities and co-operate with the class teacher, sharing responsibility with him or her. Where required by the pupil’s situation, other professionals can be called in as “autonomy and communication assistants” tasked with “eliminating barriers to perception and sensorial obstacles”, and educational assistants accompanying the pupil in order to promote his or her autonomy and socialisation (see paragraph 18 above). 56. In the present case the applicant, a non-verbal autistic child, alleged that she had been unable to receive the specialist assistance provided for by law. 57. The Court’s task is therefore to ascertain whether the national authorities effectively honoured their obligations under Article 14 of the Convention, read in conjunction with Article 2 of Protocol No. 1 to the Convention, in respect of the applicant, within their margin of appreciation, and whether they made reasonable accommodation so that she could benefit from the rights secured under Article 2 of Protocol No. 1 in conjunction with Article 14. 58. The Court must therefore assess the readiness of the authorities to react to the situation submitted to them. (ii) Refusal to provide the applicant with specialist assistance 59. In the instant case the applicant submitted that her inability to receive specialist assistance for her first two years in primary school amounted to discriminatory treatment. On that point, the Court observes that at the material time various legislative provisions set forth the right to education of children with disabilities and afforded them protection against discrimination (see section on relevant domestic law, paragraphs 17 ‑ 18 above). 60. The Court emphasises that by providing for the inclusion of children with disabilities in ordinary schooling, the legislature had effected a choice in the framework of its margin of appreciation. It observed that the contents of the case file here show that even though the law provided, in an abstract manner, for making “reasonable accommodation”, without granting the authorities any leeway, the competent national bodies did not actually explain how such accommodation should be effected in the period from 2010 to 2012, and that the applicant was therefore unable to receive specialist assistance tailored to her specific educational needs during that time. 61. Reiterating that the Convention is intended to safeguard concrete and effective rights, the Court pointed out that in the present case it had to have regard to developments in international and European law and respond, for example, to any emerging consensus as to the standards to be achieved in the relevant sphere (see paragraphs 51 and 53 above). 62. The Court thus considers that Article 14 of the Convention should be interpreted in the light of the requirements set out in the aforementioned texts, particularly the CRPD (see paragraph 26 above). The latter instrument provides that the “reasonable accommodation” which persons with disabilities are entitled to expect are “necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms” (Article 2, see paragraph 26 above), and discrimination on grounds of disability “includes all forms of discrimination, including denial of reasonable accommodation”. Indeed, reasonable accommodation measures are aimed at correcting factual inequalities (see paragraph 26 above; see also, mutatis mutandis, Çam, cited above, §§ 65 and 67, and Şanlısoy v. Turkey (dec.), no. 77023/12, § 60, 8 November 2016). 63. Clearly it is not the Court’s task to define the “reasonable accommodation” – which can take on different material and non-material forms – to be implemented in the educational sphere in response to the educational needs of persons with disabilities; the national authorities are much better placed than it to do so (see, for example, Çam, cited above, § 66). However, it is important for States to pay particular attention to their choices in this sphere in view of their impact on children with disabilities, whose high level of vulnerability cannot be overlooked (see paragraph 54 above). 64. In the instant case, therefore, the Court must verify, in view of the fact that the State had decided to provide the possibility of inclusive education to children with disabilities, whether the authorities had had valid reasons for depriving the applicant of access to specialist assistance (see paragraph 34 above). 65. The Government based its pleadings primarily on the argument that since the only available funds had been earmarked for persons suffering from ALS, the authorities had not had any financial resources readily available for school support. They further submitted that in any event, the school in question had, at its own expense, made arrangements for specialist assistance to be provided by a number of its employees. Nevertheless, they supplied no information on the specific competences of those persons or on the support provided, and no details concerning the timescales involved. The Court further observes in that connection that according to the information communicated, the school had spent EUR 476.56 on the services provided by six persons for one school year. 66. Having regard to the Government’s explanations, the Court considers that there can be no doubt that the applicant was unable to continue to attend primary school under conditions equivalent to those enjoyed by non-disabled pupils, and that that difference of treatment had been due to her disability. It can only note that for two whole school years, apart from private assistance paid for by her parents, and a number of interventions by school employees, concerning which the Government provided no further information, the applicant did not receive the specialist assistance to which she was entitled and which would have given her access to the educational and social services afforded by the school on an equal footing with the other pupils. (i) Proceedings before the administrative courts 67. The administrative courts to which the applicant applied dismissed her claims. They held that the lack of financial resources had justified her inability to receive specialist assistance, without seeking to ascertain whether the authorities had struck a fair balance between her educational needs and the authorities’ reduced capacity for meeting those needs, or whether her allegations of discrimination had been justified. In particular, they had failed to ascertain whether the budgetary restrictions relied on by the authorities had had the same impact on the educational services provided for both disabled and non-disabled children. 68. The Court notes that the national authorities had at no stage considered the possibility that the lack of resources or the urgent need to prioritise the treatment of persons suffering from a serious disease could be offset not by tampering with the reasonable accommodation measures guaranteeing equal opportunities for children with disabilities, but by reducing the level of educational provision in a manner divided equitably between the non-disabled and the disabled pupils, even though the Court of Cassation had already stressed that aspect in its judgments (see paragraph 19 above). The Court considers in this regard that, having regard, on the one hand, to the inclusive schooling model adopted in Italy, with a single stream for all pupils, and on the other, to the case-law of the Court of Cassation, any budgetary restrictions should affect educational provision in an identical manner for both disabled and non-disabled pupils. 69. The Court reiterates in this connection that pursuant to Article 15 of the European Social Charter (Revised) (see paragraph 27 above), States should “promote [the] full social integration and participation [of persons with disabilities] in the life of the community in particular through measures, including technical aids, aiming to overcome barriers to communication and mobility” (see also, in paragraph 26 above, Articles 24 § 2 (c) and (d) and 24 § 3 (a) CRPD). In the present case, the applicant should have received specialist assistance aimed at promoting her personal autonomy and communication skills and improving her learning process, her relationships with others and her integration at school in order to prevent the risk of marginalisation. The Court reiterates that in its Recommendation Rec(2006)5 (see paragraph 29 above), the Committee of Ministers emphasised that “enabling persons with disabilities to participate in ordinary educational structures is important not only for them but also for non-disabled people, allowing the latter to learn about disability as a factor in human diversity”. (i) The Court’s conclusions 70. In the light of all the foregoing considerations, the Court concludes that in the present case the authorities did not seek to determine the applicant’s real needs or possible solutions to enable her to attend primary school under conditions as similar as possible to those enjoyed by other children, without imposing a disproportionate or undue burden on the authorities (see, to converse effect, Sanlisoy cited above, in which the Court ruled that a private school’s refusal to enrol the applicant, who was a seven-year-old autistic child, had amounted neither to a systematic negation of his right to education on grounds of his autism, nor to a failure on the part of the State to honour its obligations under Article 2 of Protocol No. 1 read in conjunction with Article 14 of the Convention; and also Stoian v. Romania [Committee], no. 289/14, 25 June 2019, in which the Court considered that the national authorities had allocated resources to the schools attended by the applicant, a disabled child, such as to meet his special needs). 71. The Court further holds that the discrimination suffered by the applicant is particularly serious as it occurred in the framework of primary schooling, when the foundations are laid ich provides the bases for overall education and social integration and the first experiences of living together – and which is compulsory in most countries (see, mutatis mutandis, Ponomaryovi, cited above, §§ 56 ‑ 57). 72. Having regard to all those considerations, the Court concludes that in the present case the Government failed to demonstrate that the national authorities had reacted with the requisite diligence to ensure that the applicant could enjoy her right to education on an equal footing with the other pupils, such as to strike a fair balance between the competing interests. There has therefore been a violation of Article 14 of the Convention taken in conjunction with Article 2 of Protocol No. 1. 73. Having regard to that conclusion, the Court considers it unnecessary to consider separately the complaint under Article 2 of Protocol No. 1 (see, mutatis mutandis, Darby v. Sweden, 23 October 1990, § 35, Series A no. 187; Pla and Puncernau v. Andorra, no. 69498/01, § 64, ECHR 2004 ‑ VIII; Oršuš and Ithers, cited above, § 186; and Çam, cited above, § 70). ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION IN CONJUNCTION WITH ARTICLE 14 74. The applicant also considered that she had sustained an infringement, which she deemed discriminatory, of her right to respect for her private life. She submitted that the fact that she had not benefited from specialist educational services had harmed her personal and intellectual development and undermined her present and future chances of leading a worthwhile life as a full member of the community. 75. For their part, the Government affirmed that the authorities had adopted appropriate support measures to guarantee the applicant’s education, training, socialisation and integration at school. 76. The Court considers that that complaint is closely related to that which it has just examined and that it must therefore also be declared admissible. However, having regard to the observations set out in paragraphs 70 to 72 above, as well as to its finding in paragraph 73, it holds that there is no need to examine it separately. APPLICATION OF ARTICLE 41 OF THE CONVENTION 77. 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.” Pecuniary damage 78. The applicant claimed 2,520 euros (EUR) in respect of pecuniary damage, explaining that that sum corresponded to the cost of the private specialist assistance paid for by her parents for the 2011/2012 school year. 79. She also requested that the Court award her an equitable amount in respect of non-pecuniary damage. She considered that having regard to the fact that her inability to receive appropriate assistance adequate had impeded her personal development and infringed her right to education and her right to respect for her private life, a sum of EUR 10,000 might be considered fair. However, she left that matter to the Court’s discretion. 80. The Government submitted that the applicant’s claims lacked any basis in law and that her parents had freely chosen to resort to private specialist assistance. 81. The Court discerned a causal link between the violation found and the pecuniary damage alleged, that is to say the costs incurred by the applicant’s parents in providing their daughter with private specialist assistance for the 2011/2012 school year. Having regard to the documents in its possession, the Court considers it reasonable to award the applicant the sum of EUR 2,520 under that head. 82. Further considering that the fact that the applicant had been deprived of specialist assistance for two school years had caused her non-pecuniary damage, the Court considers it appropriate to award her the requested sum of 10 000 EUR under that head. Costs and expenses 83 Submitting documentary evidence, the applicant claimed EUR 4,175 in respect of costs and expenses incurred in the framework of proceedings before the domestic courts, and EUR 8,000 in respect of costs and expenses incurred for the purposes of the proceedings before the Court, that amount having been calculated on the basis of the applicable national rates. 84. The Government considered that the claim for reimbursement of costs incurred in the framework of the domestic proceedings lacked any legal basis. 85. 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 of EUR 4,175 in respect of costs and expenses incurred in the framework of the domestic proceedings, which sum corresponds to the costs paid for the purposes of the proceedings before the administrative courts. On the other hand, it rejects the claim concerning costs incurred for the purposes of the proceedings before it, as the applicant has failed to produce any evidence in support. Default interest 86. 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 in conjunction with Article 2 (right to education) of Protocol No. 1 to the Convention, finding that the applicant had not been able to continue attending primary school in equivalent conditions to those available to other children and that this difference was due to her disability. The Court considered in particular that the Italian authorities had not sought to determine the young girl’s real needs and provide tailored support in order to allow her to continue her primary education in conditions that would, as far as possible, be equivalent to those in which other children attended the same school. In particular, the authorities had never considered the possibility that a lack of resources could be compensated for by a reduction in the overall educational provision, so that it would be distributed equally between non-disabled and disabled pupils. The Court further noted that the discrimination suffered by the young girl was all the more serious as it had taken place in the context of primary education, which formed the foundation of child education and social integration, giving children their first experience of living together in a community. |
709 | Right to collective bargaining | II. RELEVANT NON-CONVENTION MATERIAL A. United Kingdom law 25. According to United Kingdom law, a “trade union” is any organisation which consists wholly or mainly of workers and has the regulation of relations between workers and employers or employers' associations as one of its principal purposes (section 1 of the Trade Union and Labour Relations (Consolidation) Act 1992 – “the 1992 Act”). There is no system of licensing trade unions prior to their recognition for collective bargaining. 26. At the time of the events in question in this case, collective bargaining was a wholly voluntary process. There was no legislation in the United Kingdom which inhibited the freedom of employers to recognise or de-recognise trade unions for the purposes of collective bargaining (the Employment Act 1980, repealing the Employment Protection Act 1975). 27. Section 23(1)(a) of the Employment Protection (Consolidation) Act 1978 provided: “23(1) Every employee shall have the right not to have action (short of dismissal) taken against him as an individual by his employer for the purpose of (a) preventing or deterring him from being or seeking to become a member of an independent trade union, or penalising him for doing so.” This provision was re-enacted as section 146(1) of the 1992 Act. 28. After the Court of Appeal found for the applicants, Parliament enacted section 13 of the Trade Union Reform and Employment Rights Act 1993 (“the 1993 Act”) to amend section 148 of the 1992 Act by providing that where “the employer's purpose was to further a change in his relationship with all or any class of his employees” then, unless the employer's action was action that no reasonable employer could take, section 146(1) of the 1992 Act would provide no remedy for the employee. 29. Although a strike by employees involves breaches of their respective contracts of employment and calling or supporting a strike by a trade union involves the trade union in committing the tort of inducing a breach of contract of the employees concerned, section 219 of the 1992 Act confers protection where the defendant is acting “in contemplation or furtherance of a trade dispute” (as defined; see UNISON v. the United Kingdom (dec.), no. 53574/99, ECHR 2002-I). B. The European Social Charter 1961 30. Article 5 of the Social Charter provides for the following “right to organise”: “With a view to ensuring or promoting the freedom of workers and employers to form local, national or international organisations for the protection of their economic and social interests and to join those organisations, the Contracting Parties undertake that national law shall not be such as to impair, nor shall it be so applied as to impair, this freedom. The extent to which the guarantees provided for in this Article shall apply to the police shall be determined by national laws or regulations. The principle governing the application to the members of the armed forces of these guarantees and the extent to which they shall apply to persons in this category shall equally be determined by national laws or regulations.” 31. Article 6 of the Charter is headed “The right to bargain collectively” and provides: “With a view to ensuring the effective exercise of the right to bargain collectively, the Contracting Parties undertake: (1) to promote joint consultation between workers and employers; (2) to promote, where necessary and appropriate, machinery for voluntary negotiations between employers or employers' organisations and workers' organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements; (3) to promote the establishment and use of appropriate machinery for conciliation and voluntary arbitration for the settlement of labour disputes; and recognise: (4) the right of workers and employers to collective action in cases of conflicts of interest, including the right to strike, subject to obligations that might arise out of collective agreements previously entered into.” 32. In 1995 the Committee of Independent Experts set up under Article 25 of the Social Charter examined section 13 of the 1993 Act with a view to determining whether it was consistent with Article 5 of the Charter and observed as follows (Conclusions XIII-3, Council of Europe, 1996, p. 108): “... the Committee was of the opinion that the wording of section 148(3)(a) was so general that the effect of this provision was that only in exceptional cases would a tribunal be able to rule that the action taken by the employer was unlawful because it violated freedom of association. It considered that this weakening of the protection of freedom of association was not compatible with the requirements of Article 5. It pointed out that 'the Contracting State is obliged to take adequate legislative or other measures to guarantee the exercise of the right to organise, and in particular to protect workers' organisations from any interference on the part of employers' (see most recently Conclusions XII-2, p. 101). It also referred to its conclusion under Article 6 § 2 and its case-law to the effect that where a fundamental trade union prerogative such as the right to bargain collectively was restricted, this could amount to an infringement of the very nature of trade union freedom (see most recently Conclusions XIII-2, p. 269).” 33. In its next report the Committee again insisted “that the necessary measures be taken to repeal [section 13 of the 1993 Act, inter alia ]”, commenting (Conclusions XIV-I, 1998, pp. 798 and 800): “The Committee repeats the criticism raised in its previous conclusion with respect to section 13 of the 1993 Act which is in breach of Article 5 of the Charter as it permits employers to take certain measures such as awarding preferential remuneration to employees in order to persuade them to relinquish trade union activities and collective bargaining ...” C. International Labour Organisation conventions and reports 34. The United Kingdom has ratified the International Labour Organisation's (ILO) Freedom of Association and Protection of the Right to Organise Convention, 1948 (no. 87) and its Right to Organise and Collective Bargaining Convention, 1949 (no. 98). 35. Convention no. 87 provides, inter alia : “Part I. Freedom of Association Article 1 Each Member of the International Labour Organisation for which this Convention is in force undertakes to give effect to the following provisions. Article 2 Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation. Article 10 In this Convention the term organisation means any organisation of workers or of employers for furthering and defending the interests of workers or of employers. Part II. Protection of the Right to Organise Article 11 Each Member of the International Labour Organisation for which this Convention is in force undertakes to take all necessary and appropriate measures to ensure that workers and employers may exercise freely the right to organise.” 36. Convention no. 98 provides, inter alia : “Article 1 1. Workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment. 2. Such protection shall apply more particularly in respect of acts calculated to – (a) make the employment of a worker subject to the condition that he shall not join a union or shall relinquish trade union membership; (b) cause the dismissal of or otherwise prejudice a worker by reason of union membership or because of participation in union activities outside working hours or, with the consent of the employer, within working hours. Article 3 Machinery appropriate to national conditions shall be established, where necessary, for the purpose of ensuring respect for the right to organise as defined in the preceding Articles. Article 4 Measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers or employers' organisations and workers' organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements.” 37. The ILO Committee on Freedom of Association has considered section 13 of the 1993 Act in the context of a case of alleged intimidation intended to bring about the de-recognition of two trade unions at a steel works in England, and the absence of any remedy under national law (Case no. 1852, 309th Report of the Freedom of Association Committee, Vol. LXXXI, 1998, Series B, no. 1). The Committee concluded as follows (paragraphs 337 and 341): “337. While bearing in mind that collective bargaining, if it is to be effective, must assume a voluntary character and not entail recourse to measures of compulsion which would alter the voluntary nature of such bargaining, the Committee has considered that the competent authorities should, in all cases, have the power to proceed to an objective verification of any claim by a union that it represents the majority of workers in an undertaking, provided that such a claim appears to be plausible and that if the union concerned is found to be the majority union, the authorities should take appropriate conciliatory measures to obtain the employer's recognition of that union for collective bargaining purposes (see Digest, op. cit., paras. 845 and 824). While noting from the Government's observations that collective bargaining is still an option for the employer, the Committee concludes that, given the facts available in this particular case, [the employer] has by-passed the representative organisation and entered into direct individual negotiation with its employees, in a manner contrary to the principle that collective negotiation between employers and organisations of workers should be encouraged and promoted. The Committee notes with interest the Government's indication that a White Paper on fairness at work, with a focus on union recognition, is being prepared. The Committee hopes that any resulting legislation will have as an effect the encouragement of employer recognition of representative workers' organisations and requests the Government to keep it informed of the progress made in this regard. 341. Finally, as concerns the previous Government's argument with respect to the relevance of section 13 of the [1993 Act], the Committee can only state that, in the absence of a more detailed reply concerning the facts of this specific case based on a thorough and independent investigation, it is not in a position to judge on the relevance of section 13 to the case in question. It would recall however that it was the Government which had raised the matter of section 13 in its initial reply to this complaint and that the conclusions reached by the Committee were based wholly upon its conclusions in a previous case presented against the United Kingdom Government for alleged infringements of trade union rights (see 294th Report, Case no. 1730) wherein it had invited the Government to reconsider section 13 in consultation with the social partners since it considered that this provision could hardly be said to constitute a measure to encourage and promote the full development and utilisation of machinery for voluntary negotiation with a view to the regulation of terms and conditions of employment by means of collective agreements, as provided for in Article 4 of Convention no. 98 (ratified by the United Kingdom). The Committee recalls in this respect that section 13 directs a tribunal, when considering a complaint of action short of dismissal taken by an employer for the purpose of preventing or deterring a worker from being or becoming a member of an independent trade union, to have regard primarily to the employer's purpose to further a change in the relationship with the employees and the Committee had concluded that this section considerably limited the tribunal's competence for determining such action as being in violation of section 146 concerning action short of dismissal (see 294th Report, Case no. 1730, para. 199). The Committee does not consider that the possible effects of section 13 have changed in this respect and it would therefore once again call on the Government to take steps to amend that section so that it ensures workers' organisations adequate protection from acts of interference on the part of the employer and so that it does not result in fact in the discouragement of collective bargaining. It requests the Government to keep it informed in this respect.” The Committee recommended, inter alia, (and its recommendations were approved by the ILO's Governing Body): “(a) Noting with interest the Government's indication that a White Paper on fairness at work, with a focus on union recognition, is being prepared, the Committee expresses the hope that any resulting legislation will have as an effect the encouragement of employer recognition of representative workers' organisations and requests the Government to keep it informed of the progress made in this regard. ... (e) The Committee once again calls on the Government to take steps to amend section 13 of the Trade Union Reform and Employment Rights Act so that it ensures workers' organisations adequate protection from acts of interference on the part of the employer and so that it does not result in fact in the discouragement of collective bargaining. It requests the Government to keep it informed in this regard.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION 38. The applicants complained that the law applicable in the United Kingdom at the relevant time failed to secure their rights under Article 11 of the Convention, the relevant parts of which provide: “1. Everyone has the right to freedom of peaceful assembly and to freedom of association 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 ... for the protection of the rights and freedoms of others. ...” A. Arguments of the parties 39. The Government relied on the Court's case-law and submitted that there is no right inherent in Article 11 to collective bargaining or for individual trade union members to receive identical benefits to those agreed between an employer and other employees who decline to be represented by the union. If the Government were required to oblige employers to offer identical benefits to all employees, regardless of union membership, there would be no scope for different unions to engage in collective bargaining to achieve better terms and conditions for their members. The Government submitted that, under domestic law at the relevant time, trade unions had the freedom to take action to protect their members' interests. The essence of a voluntary system of recognition and collective bargaining, such as applied in the United Kingdom, was that it remained open to each side to persuade the other that recognition should be afforded and that collective bargaining on agreed issues should take place. Where a particular trade union was not recognised by the employer, it was open to the union to take steps, including strike action, to persuade the employer to recognise it for the purposes of collective bargaining (this would fall within the definition of a “trade dispute” under section 219 of the 1992 Act – see paragraph 29 above). 40. The applicants submitted that the right to union membership “for the protection of his interests” under Article 11 necessarily involved the rights of every employee (1) to be represented by his or her union in negotiations with the employer, and (2) not to be discriminated against for choosing to avail him- or herself of the right to be represented. In this connection, the applicants referred to the findings and recommendations of the Committee of Experts under the European Social Charter and of the ILO's Committee on Freedom of Association (see paragraphs 32-33 and 37 above), that the right of union representation is inherent in the right of union membership (as provided for in Article 5 of the Charter and in the ILO convention). However, the House of Lords' judgment made it plain that domestic law protected only the right of union membership per se, and not any of the incidents of membership, such as collective representation in contract negotiations. Unless it could be shown that an employer acted with the intention to prevent, deter or penalise membership ( per se ) of a union, there was nothing to prevent the employer discriminating against an employee who chose to take advantage of one of the incidents of membership, such as collective representation. B. The Court's assessment 1. General principles 41. The Court observes at the outset that although the essential object of Article 11 is to protect the individual against arbitrary interference by public authorities with the exercise of the rights protected, there may in addition be positive obligations to secure the effective enjoyment of these rights. In the present case, the matters about which the applicants complain – principally, the employers' de-recognition of the unions for collective-bargaining purposes and offers of more favourable conditions of employment to employees agreeing not to be represented by the unions – did not involve direct intervention by the State. The responsibility of the United Kingdom would, however, be engaged if these matters resulted from a failure on its part to secure to the applicants under domestic law the rights set forth in Article 11 of the Convention (see Gustafsson v. Sweden, judgment of 25 April 1996, Reports of Judgments and Decisions 1996-II, pp. 652-53, § 45). 42. The Court reiterates that Article 11 § 1 presents trade union freedom as one form or a special aspect of freedom of association (see National Union of Belgian Police v. Belgium, judgment of 27 October 1975, Series A no. 19, pp. 17-18, § 38, and Swedish Engine Drivers' Union v. Sweden, judgment of 6 February 1976, Series A no. 20, pp. 14-15, § 39). The words “for the protection of his interests” in Article 11 § 1 are not redundant, and the Convention safeguards freedom to protect the occupational interests of trade union members by trade union action, the conduct and development of which the Contracting States must both permit and make possible. A trade union must thus be free to strive for the protection of its members' interests, and the individual members have a right, in order to protect their interests, that the trade union should be heard (see National Union of Belgian Police, cited above, p. 18, §§ 39-40, and Swedish Engine Drivers' Union, cited above, pp. 15-16, §§ 40-41). Article 11 does not, however, secure any particular treatment of trade unions or their members and leaves each State a free choice of the means to be used to secure the right to be heard (see National Union of Belgian Police, cited above, pp. 17-18, §§ 38-39, and Swedish Engine Drivers' Union, cited above, pp. 14-15, §§ 39-40). 2. Application of these principles to the present case 43. The Court notes that, at the time of the events complained of by the applicants, United Kingdom law provided for a wholly voluntary system of collective bargaining, with no legal obligation on employers to recognise trade unions for the purposes of collective bargaining. There was, therefore, no remedy in law by which the applicants could prevent the employers in the present case from de-recognising the unions and refusing to renew the collective-bargaining agreements (see paragraphs 12, 16, 19 and 26 above). 44. However, the Court has consistently held that although collective bargaining may be one of the ways by which trade unions may be enabled to protect their members' interests, it is not indispensable for the effective enjoyment of trade union freedom. Compulsory collective bargaining would impose on employers an obligation to conduct negotiations with trade unions. The Court has not yet been prepared to hold that the freedom of a trade union to make its voice heard extends to imposing on an employer an obligation to recognise a trade union. The union and its members must however be free, in one way or another, to seek to persuade the employer to listen to what it has to say on behalf of its members. In view of the sensitive character of the social and political issues involved in achieving a proper balance between the competing interests and the wide degree of divergence between the domestic systems in this field, the Contracting States enjoy a wide margin of appreciation as to how trade union freedom may be secured (see Swedish Engine Drivers' Union, cited above, pp. 14-15, § 39; Gustafsson, cited above, pp. 652-53, § 45; and Schettini and Others v. Italy (dec.), no. 29529/95, 9 November 2000). 45. The Court observes that there were other measures available to the applicant trade unions by which they could further their members' interests. In particular, domestic law conferred protection on a trade union which called for or supported strike action “in contemplation or furtherance of a trade dispute” (see paragraph 29 above). The grant of the right to strike, while it may be subject to regulation, represents one of the most important of the means by which the State may secure a trade union's freedom to protect its members' occupational interests (see Schmidt and Dahlström v. Sweden, judgment of 6 February 1976, Series A no. 21, p. 16, § 36, and UNISON, cited above). Against this background, the Court does not consider that the absence, under United Kingdom law, of an obligation on employers to enter into collective bargaining gave rise, in itself, to a violation of Article 11 of the Convention. 46. The Court agrees with the Government that the essence of a voluntary system of collective bargaining is that it must be possible for a trade union which is not recognised by an employer to take steps including, if necessary, organising industrial action, with a view to persuading the employer to enter into collective bargaining with it on those issues which the union believes are important for its members' interests. Furthermore, it is of the essence of the right to join a trade union for the protection of their interests that employees should be free to instruct or permit the union to make representations to their employer or to take action in support of their interests on their behalf. If workers are prevented from so doing, their freedom to belong to a trade union, for the protection of their interests, becomes illusory. It is the role of the State to ensure that trade union members are not prevented or restrained from using their union to represent them in attempts to regulate their relations with their employers. 47. In the present case, it was open to the employers to seek to pre-empt any protest on the part of the unions or their members against the imposition of limits on voluntary collective bargaining, by offering those employees who acquiesced in the termination of collective bargaining substantial pay rises, which were not provided to those who refused to sign contracts accepting the end of union representation. The corollary of this was that United Kingdom law permitted employers to treat less favourably employees who were not prepared to renounce a freedom that was an essential feature of union membership. Such conduct constituted a disincentive or restraint on the use by employees of union membership to protect their interests. However, as the House of Lords' judgment made clear, domestic law did not prohibit the employer from offering an inducement to employees who relinquished the right to union representation, even if the aim and outcome of the exercise was to bring an end to collective bargaining and thus substantially to reduce the authority of the union, as long as the employer did not act with the purpose of preventing or deterring the individual employee simply from being a member of a trade union. 48. Under United Kingdom law at the relevant time it was, therefore, possible for an employer effectively to undermine or frustrate a trade union's ability to strive for the protection of its members' interests. The Court notes that this aspect of domestic law has been the subject of criticism by the Social Charter's Committee of Independent Experts and the ILO's Committee on Freedom of Association (see paragraphs 32-33 and 37 above). It considers that, by permitting employers to use financial incentives to induce employees to surrender important union rights, the respondent State has failed in its positive obligation to secure the enjoyment of the rights under Article 11 of the Convention. This failure amounted to a violation of Article 11, as regards both the applicant trade unions and the individual applicants. II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 49. The applicants complained in addition that the law of the United Kingdom failed to protect their rights under 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, ... for the protection of the ... rights of others ...” 50. The applicants complained of an interference with their freedom to hold opinions, the opinion in question being that an employee should be allowed to choose to be represented by a trade union in negotiations with the employer. The Court does not, however, consider that any separate issue arises under Article 10 that has not already been dealt with in the context of Article 11 of the Convention. It is not, therefore, necessary to examine this complaint separately. III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLES 10 AND 11 51. Finally, the individual applicants complained that domestic law allowed their employers to discriminate against them by virtue of their wish to continue to be represented by their unions. They relied on Articles 10 and 11 of the Convention taken in conjunction with Article 14, which states: “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.” 52. However, in view of its findings under Article 11, the Court does not consider it necessary to examine this complaint. IV. 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.” 54. The Court reiterates that the principle underlying the provision of just satisfaction is that the applicant should, as far as possible, be put in the position he would have enjoyed had the violation of the Convention not occurred. The Court will award financial compensation under Article 41 only where it is satisfied that the loss or damage complained of was actually caused by the violation it has found, since the State cannot be required to pay damages in respect of losses for which it is not responsible (see, mutatis mutandis, Kingsley v. the United Kingdom [GC], no. 35605/97, § 40, ECHR 2002-IV). A. Individual applicants' claims 1. Pecuniary damage 55. The individual applicants claimed compensation for loss of earnings, namely the loss of the pay increases which were awarded to their co-workers who signed individual contracts. The claims under this head varied from approximately 1,300 pounds sterling (GBP) to approximately GBP 14,200. 56. The Government submitted that this claim was misconceived, because if domestic law had forbidden employers from offering incentives to employees in exchange for their agreement not to engage in collective bargaining, the obvious inference was that the employers would not have offered financial incentives to any of their employees. 57. The Court agrees with the Government and, with reference to the principle set out in paragraph 54 above, it rejects the individual applicants' claims for pecuniary damage. 2. Non-pecuniary damage 58. The individual applicants claimed compensation for the injuries to their feelings they had suffered in consequence of the violation. They claimed to have experienced humiliation and loss of status through having to do the same work as colleagues at a lower rate of pay, and frustration, stress and anxiety at the incapacity of their unions to protect them, the failure of domestic law to uphold their rights and the length of the combined proceedings in the United Kingdom and before the Convention organs. The individual applicants claimed GBP 10,000 each in this respect. 59. The Government submitted that the applicants' claims under this head were unsubstantiated. Furthermore, even if it were appropriate to award compensation for emotional distress on the basis of inference alone, it was more likely that the applicants, each of whom exercised a free choice on a point of principle, did not thereby suffer any emotional hardship. Since the applicants had not made any complaint under Article 6 § 1 of the Convention about the length of the proceedings, and since therefore no court had determined who was responsible for the length of the proceedings, it was not open to them to claim compensation in that respect. 60. The Court reiterates that claims for just satisfaction must, in general, be supported by independent evidence. Thus, Rule 60 § 2 of the Rules of Court provides that: “Itemised particulars of all claims made, together with the relevant supporting documents or vouchers, shall be submitted, failing which the Chamber may reject the claim in whole or in part.” However, some forms of non-pecuniary damage, including emotional distress, by their very nature cannot always be the object of concrete proof (see Abdulaziz, Cabales and Balkandali v. the United Kingdom, judgment of 28 May 1985, Series A no. 94, p. 44, § 96). This does not prevent the Court from making an award if it considers that it is reasonable to assume that an applicant has suffered injury requiring financial compensation (ibid.). 61. The Court sees some force in the argument that, having exercised a free choice on a point of ideological principle, it is difficult to believe that the applicants thereby suffered humiliation and loss of status. However, the violation and the ensuing unsuccessful attempts to put it right before the national courts must have caused the applicants justifiable anger, frustration and emotional distress. The Court considers that, on an equitable basis, each individual applicant should be awarded 7,730 euros (EUR) in this respect. B. Applicant trade unions' claims 62. The applicant trade unions claimed compensation for losses that they claimed followed from the perception, created by the violation in this case, that they were unable effectively to protect their members' interests. Each union claimed for loss of revenue caused by falling membership at Associated Newspapers and Associated British Ports respectively: GBP 178,363 for the NUJ and GBP 298,264 for the NURMTW. Each union in addition maintained that it should be awarded GBP 100,000 to compensate it for loss of credibility and status. 63. The Government pointed out that the applicant trade unions had not established any causal link between the violation and the unparticularised and unsubstantiated losses in respect of which they claimed compensation. They pointed out that levels of trade union membership are inevitably affected by a range of factors, including levels of employment in the industries concerned. 64. The Court is not satisfied that the losses complained of by the applicant trade unions were caused by the violation it has found in this case. It therefore rejects the applicant trade unions' claims for financial compensation for pecuniary and non-pecuniary damage. C. Legal costs and expenses 65. The applicant trade unions paid the legal costs and expenses of the individual applicants before the national courts and tribunals, and their own and the individual applicants' costs before the Convention organs. They claimed reimbursement of these costs, inclusive of value-added tax (VAT), as follows: (1) first applicant's costs of bringing proceedings in the United Kingdom courts, from the Employment Tribunal to the House of Lords: GBP 85,172.23; (2) third and fourth applicants' costs of bringing proceedings from the Employment Tribunal to the House of Lords: GBP 73,633.76; (3) fifth to twelfth applicants' costs in the Employment Tribunal: GBP 3,865.75; (4) total costs paid by the first, third and fourth applicants to their employers as a result of the House of Lords' judgment: GBP 159,915.46; (5) first and second applicants' costs and expenses before the Convention organs: GBP 98,700.89; (6) third to thirteenth applicants' costs and expenses before the Convention organs: GBP 51,229.85. 66. The Government submitted that the applicants were not entitled to be reimbursed any part of the costs of the domestic proceedings, because these proceedings were not concerned with the issues arising under the Convention. In any event, the Government pointed out that, since the applicants had not provided any substantiation in respect of their claims for domestic costs, the Court should make no award under this head. Likewise, the Government observed that the claims for the costs of the Convention proceedings were not accompanied by any detailed evidence as to how the costs were incurred. If the Court nonetheless wished to make an award, GBP 20,000 would be more than sufficient. 67. The Court reiterates that the established principle in relation to domestic legal costs is that an applicant is entitled to be reimbursed those costs actually and necessarily incurred to prevent or redress the breach of the Convention found by the Court, to the extent that the costs are reasonable as to quantum (see Kingsley, cited above, § 49). It considers that the issue in the domestic proceedings, whether the requirement to renounce the right to union representation in order to receive a pay rise amounted to “action (short of dismissal) ... for the purpose of preventing or deterring” trade union membership, was sufficiently close to that arising under Article 11 as to justify in principle the reimbursement of the applicants' domestic costs. It was reasonable for the applicants to proceed on the basis that the 1978 Act would not permit action by employers which was inconsistent with Article 11 rights. 68. However, as mentioned in paragraph 60 above, all claims for just satisfaction must show particulars and be supported by relevant documentation, failing which the Chamber may reject the claim in whole or in part. The applicants have not submitted itemised bills of costs to the Court in respect of their claims. Without details of the work done and the hourly rates charged, it is not possible for the Court to determine whether the costs were necessarily incurred and reasonable as to quantum. In these circumstances, the Court is prepared to award only a total of 76,500 EUR in respect of the applicants' domestic costs, plus any VAT which may be chargeable. 69. The applicants' claims for costs before the Convention organs are similarly unsubstantiated and do not show any particulars. The Court awards a total of 45,750 EUR under this head, plus any VAT which may be chargeable. D. Default interest 70. According to the information available to the Court, the statutory rate of interest applicable in the United Kingdom at the date of adoption of the present judgment is 7.5% per annum. | The Court noted in particular that, although collective bargaining was not indispensable for the effective enjoyment of trade union freedom, it might be one of the ways by which trade unions were enabled to protect their members’ interests. In the present case, it found that, the absence, under United Kingdom law, of an obligation on employers to enter into collective bargaining did not give rise, in itself, to a violation of Article 11 of the Convention. However, permitting employers to use financial incentives to induce employees to surrender important union rights amounted to a violation of Article 11, as regards both the applicant trade unions and the individual applicants. In this regard, the Court noted in particular that it is the role of the State to ensure that trade union members are not prevented or restrained from using their union to represent them in attempts to regulate their relations with their employers. |
379 | Ill-treatment by prison officers | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Relevant offences as provided by the Italian Criminal Code 54. Article 572 of the Italian Criminal Code (hereinafter “the Criminal Code”) provides that anyone found guilty of ill-treating a member of his or her family, a child under fourteen years of age, or a person under his or her authority or who has been placed in his or her care or custody may be sentenced to a term of imprisonment of up to five years. 55. Article 582 of the Criminal Code provides that anyone who causes bodily harm to another person, resulting in that person ’ s mental or bodily injury, may be sentenced to a term of imprisonment ranging from three months to three years. 56. Article 608 of the Criminal Code provides that a public official who subjects a detainee or a person in his or her custody to punitive measures not provided for by law may be sentenced to a term of imprisonment of up to thirty months. 57. Article 61 of the Criminal Code contains general provisions related to aggravating circumstances. Article 61 § 9 provides that the commission of an offence as the result of abuse of authority or by a public official in the performance of his or her duties constitutes an aggravating circumstance. B. Time- barring of criminal offences 58. The relevant domestic law provisions are set out in Cestaro v. Italy, no. 6884/11, §§ 96-101, 7 April 2015. C. Introduction of the offence of torture into the Italian criminal law framework 59. On 5 March 2014 the Italian Senate approved a bill introducing the offence of torture into the Italian legal system. The bill was subsequently sent to the Chamber of Deputies for approval. The Chamber of Deputies amended the bill and the text was returned to the Senate for reconsideration on 13 April 2015. On 17 May 2017 the Senate approved the bill, with further amendments, and the text once again returned to the Chamber of Deputies for reconsideration. On 5 July 2017 the Chamber of Deputies approved and adopted the final version of the bill. On 18 July 2017 the bill entered into force as Law No. 110 of 14 July 2017. THE LAW I. JOINDER OF THE CASES 60. The Court considers that the applications should be joined, given their related factual and legal background (Rule 42 § 1 of the Rules of Court). II. PRELIMINARY ISSUE 61. Following the second applicant ’ s death on 10 January 2017, his daughter, Ms Gretel Renne, informed the Court of her wish to pursue the application in her father ’ s stead (see paragraph 1 above). 62. In cases in which an applicant has died after lodging an application, the Court has on previous occasions taken into account statements made by the applicant ’ s heirs or close family members expressing their wish to pursue the proceedings before the Court. For the Court ’ s assessment of the person ’ s standing to maintain the application on behalf of a deceased, what is important is not whether the rights at issue are transferable to the heirs but whether the heirs could 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 Ergezen v. Turkey, no. 73359/10, § 29, 8 April 2014). The Court has accepted that a next of kin or an 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). In this connection, the Court reiterates that human rights cases before it generally have a moral dimension and persons close to an applicant may thus have a legitimate interest in ensuring that justice is done, even after the applicant ’ s death (see Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, ECHR 2000 ‑ XII). 63. In view of the above, and taking into account the circumstances of the present case, the Court accepts that the second applicant ’ s daughter has a legitimate interest in pursuing the application. It will therefore – at her request – continue dealing with the case. For convenience, it will, however, continue to refer to Mr Renne as the second applicant in the present judgment. III. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION IN ITS SUBSTANTIVE ASPECT 64. The applicants submitted that during their detention in the Asti Correctional facility in December 2004, they had suffered acts of violence and ill-treatment which they considered as amounting to torture. They relied on Article 3 of the Convention, which provides: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility 65. 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 66. The applicants complained that they had been subjected to various forms of ill-treatment during their detention in the Asti correctional facility in December 2004. 67. The first applicant reiterated the assertion that he had been kept in solitary confinement for more than twenty days, had been stripped of his clothes and detained in a cell with no window panes in winter, in Northern Italy, and that there had been no sink and neither covers nor a mattress on the bed. He further stated that he had been subjected to sleep, food and water deprivation as well as physical violence and verbal abuse. 68. He argued that the intention underlying the treatment was to punish and intimidate him, as the treatment went well beyond security needs. This latter point was reinforced, in the first applicant ’ s view, as the treatment was carried out against a background of systemic ill-treatment existing in the correctional facility, whereby detainees would be subjected to various forms of ill-treatment that prison authorities and staff knew about but about which they remained indifferent. 69. Furthermore, he submitted that even though many years had elapsed since the impugned events, he still suffered from anxiety and depression and had to take medication. 70. The second applicant, drawing on the reconstruction of events set out in the first-instance decision, described the ill- treatment inflicted on him, which consisted of repeated physical violence, including beatings and his hair being ripped out, as well as detention in a solitary confinement cell without clothing for a number of days and with his food being rationed. 71. As to the legal classification of the treatment, both applicants reiterated that they had suffered acts of torture within the meaning of Article 3 of the Convention. (b) The Government 72. The Government did not submit specific observations on the substantive aspect of the complaint under Article 3. 2. The Court ’ s assessment ( a) General principles 73. The Court refers to the general principles concerning the substantive limb of Article 3 as set out in Bouyid v. Belgium [GC], no. 23380/09, § 81 ‑ 90, ECHR 2015 and, recently, in Bartesaghi Gallo and Others v. Italy, nos. 12131/13 and 43390/13, § 111-113, 22 June 2017. 74. The Court reiterates, in particular, that in determining whether a given form of ill-treatment should be classified as torture, consideration must be given to the distinction, embodied in Article 3, between this notion and that of inhuman or degrading treatment. As noted in previous cases, it appears that it was the intention that the Convention should, by means of such a distinction, attach a special stigma to deliberate inhuman treatment causing very serious and cruel suffering (see, amongst many other authorities, Gäfgen v. Germany [GC], no. 22978/05, § 90, ECHR 2010 ). In addition to the severity of the treatment, there is a purposive element to torture, as recognised in the United Nations Convention against Torture, which in Article 1 defines torture in terms of the intentional infliction of severe pain or suffering with the aim, inter alia, of obtaining information, inflicting punishment or intimidating (see, amongst many other authorities, El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 197, ECHR 2012 ). (b) Application of the general principles to the present case ( i ) Establishment of the facts 75. The Court observes at the outset that the Asti District Court found that the impugned events occurred in the manner described by the applicants during the course of the domestic proceedings (see paragraphs 25 - 31 above). The Court sees no cogent reasons to call such findings into question. 76. The Court further observes that the Government did not contest the applicants ’ factual submissions or deny that the events as described by the applicants had occurred. 77. In view of the foregoing, and in the light of all the documentary material in its possession, the Court finds it established that the applicants were subjected to the treatment complained of. ( ii ) Classification of the treatment inflicted on the applicants 78. It remains to be determined whether the impugned treatment can be said to have attained the minimum level of severity to bring it within the scope of Article 3 and, if so, how it is to be classified. 79. The Court will begin by assessing the severity of the treatment to which the applicants were subjected. The Court reiterates that, according to the findings of the domestic court, the first applicant was subjected to repeated physical violence for nineteen days and the second applicant for six days (see paragraph 27 above). With specific regard to the second applicant, his medical records reveal that he sustained injuries and complained about being in pain, and he was ultimately admitted to the hospital with a fractured rib and widespread bruising ( see paragraphs 28 and 51 above ). 80. In addition to the physical suffering the applicants must have endured as a consequence of the physical abuse, the Court considers that the treatment may be regarded as having caused them considerable fear, anguish and mental suffering. As an overarching consideration, the Court is mindful of the fact that the treatment was inflicted in the context of the applicants being in the custody of prison officers, and thus already in a situation of vulnerability (see Bouyid, cited above, § 107 ). The applicants ’ state of further isolation due to their placement in the solitary confinement wing must have intensified their fear, anxiety, and feelings of helplessness. 81. The Court once again notes that the applicants were subjected to physical abuse at all hours of the day and night for many consecutive days ( see paragraph 27 above ). Moreover, the physical abuse was coupled with extremely serious “material” deprivations, which must have inevitably accentuated their suffering. In this latter respect, the applicants were subjected to deprivations and rationing of food and water, and were detained in cells with limited or no access to sanitary facilities, appropriate bedding, or heating. The applicants were further subjected to additional gratuitous acts, such as depriving them of their clothing, which must have entailed elements of humiliation and debasement (see, mutatis mutandis, Hellig v. Germany, no. 20999/05, §§ 52-57, 7 July 2011). 82. In the light of the foregoing, the Court considers that the treatment sustained by the applicants may be characterised as “inhuman treatment causing very serious and cruel suffering” for the purposes of Article 3 ( see Al Nashiri v. Poland, no. 28761/11, § 515, 24 July 2014 ). 83. In the Court ’ s view, the treatment was deliberate and carried out in a premeditated and organised manner. In this connection, the Court notes that the impugned treatment was not confined to one particular moment, namely immediately following the fight between the applicants and the prison officers. It has been clearly established that the applicants endured repeated and sustained assaults and other forms of abuse and deprivations over a number of days. In this connection, note should also be taken of the conclusions reached by the domestic court, which found that the applicants had been subjected not just to isolated acts of harassment and abuse, but to what it defined as measures which had been put into practice in a systematic manner (see paragraph 26 above). 84. The Court further considers that, for the purposes of its assessment as to the deliberate nature of the treatment, the context in which the treatment was inflicted is worthy of particular scrutiny. The domestic court found evidence of the existence of a broader pattern of abuse in the correctional facility at issue, which it labelled a “generalised practice of ill ‑ treatment” (see paragraph 29 above). It emerges from the domestic court ’ s findings that “ problematic ” detainees were routinely exposed to punitive measures that exceeded the bounds of permitted disciplinary or security measures, consisting of placement in solitary confinement cells which in themselves were in a deplorable condition, and where they would be subjected to physical violence and material deprivations. The domestic court highlighted the existence of such a situation in the Asti prison beyond the events concerning the applicants, and provided an account of the practices described above in the text of the judgment (see paragraphs 29 - 31 above). 85. The foregoing considerations also indicate the existence of a purposive element underlying the impugned treatment, namely to punish the detainees, to enforce discipline and to deter future disorderly behaviour in the correctional facility (see paragraphs 29 and 34 above). (iii) Conclusion 86. In view of the above, the Court is persuaded that the treatment to which the applicants were subjected attained the level of severity required to bring the impugned conduct within the scope of Article 3, and that it amounted to torture. 87. There has accordingly been a violation of Article 3 of the Convention in its substantive aspect. IV. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION IN ITS PROCEDURAL ASPECT 88. The applicants complained that they had suffered a further violation of Article 3 in that the penalty imposed on those responsible for the acts of which they were complaining had been inadequate owing, in particular, to the time-barring in the course of the criminal proceedings. They emphasised that by failing to introduce the offence of torture into the Italian legal framework and to provide for an appropriate penalty for that offence, the State had failed to take the necessary steps to prevent the ill-treatment which they had suffered. 89. As regards the alleged shortcomings in the investigation deriving, in particular, from the absence of an offence of torture in the Italian legal system, the applicants also relied on Article 13 of the Convention, alone and in conjunction with Article 3. However, the Court considers that it should examine the issue of the lack of an effective investigation into the alleged ill-treatment solely under the procedural limb of Article 3 of the Convention. A. Admissibility 90. 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 91. The applicants submitted that, following the criminal proceedings, the first -instance court had recognised the seriousness of the ill-treatment to which they had been subjected, but that those responsible for that ill ‑ treatment had not been punished. This occurred because the offences with which the prison officers had been charged pursuant to the Italian Criminal Code had become time-barred during the criminal proceedings. 92. They submitted that the Italian legal framework had proved to be inadequate for the purposes of punishing acts of torture and providing the necessary deterrent effect to prevent similar violations from occurring in the future. They contended that Italy must establish a legal framework capable of protecting the rights enshrined in Article 3 of the Convention, and criticised the Italian State for having failed to classify as offences all forms of ill ‑ treatment which constitute torture or inhuman or degrading treatment. This was, moreover, contrary to Italy ’ s international commitments, in particular those arising from the ratification of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. 93. They thus concluded that the State had not taken the necessary steps to prevent the acts of torture which they had suffered and to criminalise them in an appropriate manner. 94. The second applicant observed, in particular, that the impossibility of punishing those responsible for acts of torture as a result of the shortcomings in the Italian system runs the risk of supporting a practices that are widespread and nurturing a system that tolerates impunity. 95. As regards disciplinary proceedings against the prison officers, the applicants acknowledged that disciplinary measures had been taken against them. However, they observed that the evidentiary material submitted by the Government reveals that the officers were not suspended from duty during the investigation and the criminal proceedings. 96. In the light of the foregoing, the applicants alleged that the Italian State had failed to comply with the requirements of Article 3 of the Convention, namely to conduct an effective investigation into the acts of torture to which they had been subjected and to mete out adequate punishment to the perpetrators. ( b) The Government 97. The Government observed that the impugned conduct had been closely examined by the Asti District Court, which had recognised the responsibility of the prison officers. 98. The Government argued that both the judicial and disciplinary proceedings against the officers, which had been aimed at uncovering the full extent of the treatment inflicted on the applicants during their detention, had demonstrated the Italian authorities ’ willingness to identify and punish the officers responsible for the impugned acts notwithstanding the time ‑ barring of the criminal proceedings. 99. They contested the applicants ’ contentions regarding disciplinary sanctions. In this respect, the Government stated that the imposition of disciplinary sanctions occurs via proceedings which are subject to procedural guarantees that are comparable to those applied in criminal proceedings. The Government further observed that in the event of criminal proceedings being conducted in parallel with disciplinary proceedings, any final assessment as to the application of disciplinary sanctions and the choice of the sanction concerned must be postponed until the conclusion of the criminal proceedings. The Government pointed out that, in order to answer for the acts perpetrated against the applicants, the prison officers had been held to account before domestic criminal courts and administrative bodies that are known for their seriousness and impartiality, and their responsibility for the impugned events had been established in both sets of proceedings. (c) The third-party interveners: the Nonviolent Radical Party, Transnational and Transparty, the association “ Non c ’ è pace senza giustizia ”, and the Italian Radicals (the former “Italian Radical Party”) 100. The third parties took the view that Italy had failed to comply with the international obligations arising from the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. They invited the Court to take account of the fact that Italy had ratified the latter instrument in 1989, thereby undertaking to introduce the offence of torture into the Italian legal system. Notwithstanding this undertaking, twenty-five years following the ratification, no legislation criminalising torture had been adopted. 101. They also provided a comparative overview of the criminalisation of torture in a number of European systems. 102. The third parties submitted that, in the absence of a specific offence under Italian domestic law, the offences included in the Criminal Code did not enable acts of torture to be adequately criminalised, thereby precluding the imposition of appropriate penalties proportionate to the seriousness of the acts in question. 103. The third parties further underlined that the Cestaro judgment (cited above) had urged Italy to adopt general measures to address a structural deficiency. They consequently stressed the need to fill a legislative void insofar as the criminalisation of torture and inhuman or degrading treatment is concerned. 104. Lastly, as regards the disciplinary proceedings, the third parties reiterated, with reference, to the Court ’ s judgments Gäfgen v. Germany, cited above, and Saba v. Italy, no. 36629/10, 1 July 2014, that where State agents have been charged with offences involving ill - treatment, they should be suspended from duty while being investigated or tried. 2. The Court ’ s assessment (a) General principles 105. Where an individual makes an arguable claim that he has been ill - treated by the State authorities, in breach of Article 3, that provision, read in conjunction with the State ’ s general duty under Article 1 of the Convention, requires by implication that there should be an effective official investigation. The general principles which apply in determining whether such an investigation was effective for the purposes of Article 3 were restated by the Court in Cestaro (cited above, §§ 205-212). ( b) Application of the general principles to the present case 106. The Court notes at the outset that five prison officers were prosecuted and tried in connection with the impugned events, although ultimately no one was convicted on the grounds of the ill-treatment inflicted on the applicants (see paragraphs 24 to 35 above). One officer was acquitted of all charges and the offences for which the remaining officers were prosecuted were all declared statute-barred in the course of the first-instance proceedings (see paragraph 35 above). 107. In the Court ’ s view, and having considered all the material available to it, the latter outcome cannot be attributable to delays or negligence on the part of the domestic judicial authorities. While the Court expresses some concern over the duration of the criminal investigation, it notes that the applicants neither complained about nor provided any evidence indicating unjustified delays on the part of the investigation authorities. In any event, due to its findings set out in paragraph 111 below, the Court does not find it necessary to enquire whether the investigation can be considered as having been conducted with reasonable expedition. 108. As to the conduct of the domestic proceedings, the Court takes the view that the domestic court cannot be criticised for having wrongly assessed the seriousness of the charges against the accused (see, in contrast, Saba, cited above, § 80) or for having used the legislative and punitive provisions of domestic law to prevent the conviction of the prosecuted State agents (see, in contrast, Zeynep Özcan v. Turkey, no. 45906/99, § 43, 20 February 2007). 109. The Court considers, rather, that the domestic court took a very firm stance and in no way sought to justify or downplay the impugned conduct. The domestic court made a genuine effort to establish the facts and to identify the individuals responsible for the treatment inflicted on the applicants. It cannot therefore be denied that the court at issue submitted the case before it to a “scrupulous examination”, as required under Article 3 of the Convention (see Cestaro, cited above, § 206 ). 110. However, the domestic court concluded that, under Italian law, at the time of the decision there existed no legal provision that would allow it to classify the impugned treatment as torture (see paragraph 33 above). The court thus had to turn to other, existing offences, namely the provisions of the Criminal Code relating to abuse of authority against detained persons and the infliction of bodily harm (see paragraph 35 above). The latter offences appear, in the Court ’ s view, incapable of addressing the full range of issues ensuing from the acts of torture which the applicants suffered (see Myumyun v. Bulgaria, no. 67258/13, § 77, 3 November 2015 ). Moreover, they were also subject to statutory limitation periods, a circumstance which in itself sits uneasily with the Court ’ s case ‑ law concerning torture or ill ‑ treatment inflicted by state agents (see Cestaro, cited above, § 208 and Abdülsamet Yaman v. Turkey, no. 32446/96, § 55, 2 November 2004 ). 111. Based on the foregoing considerations, the Court considers that the core of the problem resides not in the conduct of the domestic judicial authorities but rather in a systemic deficiency which was characteristic of the Italian criminal law framework at the material time, as had already been identified in Cestaro (cited above, § 225). In the present case, this lacuna in the legal system, and in particular the absence of provisions penalising the practices referred to in Article 3 and, where appropriate, providing for the imposition of adequate penalties, rendered the domestic courts ill-equipped to perform an essential function, namely that of ensuring that treatment contrary to Article 3 perpetrated by State agents does not go unpunished. This, in turn, may be viewed as having had the broader effect of weakening the deterrent power of the judicial system and the vital role it ought to be able to play in upholding the prohibition of torture. 112. The Court is therefore led to the conclusion that the criminal legislation which was applied in the instant case proved, as it did in Cestaro (cited above, § 225), both inadequate in terms of its capacity to punish the acts of torture in issue and devoid of any deterrent effect capable of preventing similar future violations of Article 3. 113. Turning to the issue of disciplinary measures, the Court acknowledges the Government ’ s observations to the effect that disciplinary proceedings were conducted against four prison officers following the conclusion of the criminal proceedings. In this respect, the Court does not question the serious scrutiny to which the prison officers ’ actions were subjected to by the disciplinary bodies and notes that disciplinary measures were imposed as a consequence (see paragraph 44 above ). 114. Whilst acknowledging the importance of disciplinary measures – as it has often recognised in its case ‑ law ( see Gäfgen, cited above, § 121, and Saba, cited above, § 76 ) – the Court nevertheless considers that the imposition of disciplinary sanctions alone cannot be considered an adequate response by the authorities in cases involving acts in breach of one of the core rights of the Convention as serious as the present ones. In this respect, it reiterates that only a criminal prosecution is capable of providing the preventive effect and dissuasive force required to fulfil the requirements of Article 3. 115. Moreover, it is apparent from the material in the case file that the officers were not suspended from duty during the investigation or trial (see paragraph 45 above). The Court has frequently held that, in cases where State agents have been charged with offences involving ill ‑ treatment, they should be suspended from duty while being investigated or tried ( see Cestaro, cited above, § 210 ). The Court stresses the particular significance of such measures in a correctional context. In this connection, it emphasises the importance of safeguards ensuring that persons who may have been the victims of ill-treatment by State officials in custody ‒ who are already in a state of particular vulnerability ‒ are not discouraged, whether directly or indirectly, from lodging complaints or reporting ill-treatment. 116. Having regard to the foregoing findings, the Court concludes that there has been a violation of Article 3 in its procedural limb. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 117. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 118. In respect of non-pecuniary damage each applicant claimed 100,000 euros (EUR) or any other amount the Court should find appropriate. 119. The Government contested that amount. 120. Having regard to the seriousness of the violations of the Convention of which the applicants were victims, and ruling on an equitable basis, the Court finds it appropriate to award each applicant EUR 8 0 ,000 in respect of non-pecuniary damage. B. Costs and expenses 121. The applicants also claimed EUR 16,000 each for the costs and expenses incurred before the Court. 122. The Government contested that amount. 123. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession, the Court considers it reasonable to award the sum of EUR 8 ,000 each. C. Default interest 124. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been violations of Article 3 (prohibition of torture and of inhuman or degrading treatment) of the Convention, both as regards the treatment sustained by the applicants (substantive aspect) and as regards the response by the domestic authorities (procedural aspect). It found in particular that the ill-treatment inflicted on the applicants – which had been deliberate and carried out in a premeditated and organised manner while they were in the custody of prison officers – had amounted to torture. Furthermore, in the Court’s view, the domestic courts had made a genuine effort to establish the facts and to identify the individuals responsible for the treatment inflicted on the applicants. However, those courts had concluded that, under Italian law in force at the time, there was no legal provision allowing them to classify the treatment in question as torture. They had had to turn to other provisions of the Criminal Code, which were subject to statutory limitation periods. As a result of this lacuna in the legal system, the domestic courts had been ill-equipped to ensure that treatment contrary to Article 3 perpetrated by State officials did not go unpunished. |
635 | Journalists and publishing companies | II. RELEVANT DOMESTIC LAW 32. Section 6 of the Media Act provides for the strict liability of the publisher in cases of defamation; the victim can thus claim damages from him. In this context “defamation ” has been defined in Article 111 of the Criminal Code ( Strafgesetzbuch ), as follows: “ ( 1 ) Anybody who, in such a way that it may be noticed by a third person, attributes to another a contemptible characteristic or sentiment or accuses him of behaviour contrary to honour or morality and such as to make him contemptible or otherwise lower him in public esteem shall be liable to imprisonment not exceeding six months or a fine ... (2) Anyone who commits this offence in a printed document, by broadcasting or otherwise in such a way as to make the defamation accessible to a broad section of the public, shall be liable to imprisonment not exceeding one year or a fine ... (3) The person making the statement shall not be punished if it is proved to be true. In the case of the offence defined in paragraph 1 he shall also not be liable if circumstances are established which gave him sufficient reason to believe that the statement was true.” 33. Section 7 of the Media Act provides a claim for damages in cases of interference with the strictly personal sphere of an individual ’ s life. In the version in force at the material time, it read as follows: “(1) If the strictly personal sphere of an individual ’ s life is discussed or portrayed in the media in a way liable to publicly undermine the individual concerned, he or she shall have the right to claim compensation for the damage sustained from the media proprietor (publisher). The amount of compensation may not exceed 14,535 euros; ... (2) The right referred to in paragraph 1 above shall not apply where: (i) the statements comprise an accurate account of a debate held during a public sitting of the National Council, the Federal Council, the Federal Assembly, a regional parliament or a committee of one of these general representative bodies; (ii) the statements published are true and are directly related to public life; (iii) it can be assumed from the circumstances that the person concerned had agreed to publication, or (iv) the statements were made during a live broadcast, and no employee or representative of the broadcaster failed to exercise proper journalistic care.” THE LAW ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 34. The applicant company complained that the courts ’ decision in the proceedings under the Media Act and under the Civil Code violated its right to freedom of expression as provided in Article 10 of the Convention, which reads as follows: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” 35. The Government contested that argument. A. Admissibility 1. The proceedings under the Civil Code 36. The Court observes that in the proceedings brought by Mr Scheibner under the Civil Code the applicant company entered into a settlement undertaking to refrain from repeating the impugned statement. In a recent case with a similar situation the Court has found that an applicant who entered into such a settlement had accepted the limitation of its right to freedom of expression and renounced the use of available remedies in respect of the complaint. Therefore the applicant company could not claim to be a victim within the meaning of Article 34 of the alleged violation (see Standard Verlags GmbH v. Austria, no. 13071/03, § § 33-34, 2 November 2006). The Court sees no reason to come to another conclusion in the present case. Therefore the complaint has to be rejected as being incompatible ratione personae, pursuant to Article 35 §§ 3 and 4 of the Convention. 2. The proceedings under the Media Act 37. As far as the complaint relates to the two sets of proceedings under the Media Act, one brought by Mr Klestil and Ms Klestil-Löffler and the other by Mr Scheibner, the Court notes that it 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 38. The applicant company maintained that the courts had transgressed their margin of appreciation. It contended in particular that all three claimants were public figures. Mr Klestil and Mrs Klestil-Löffler had exposed their private life to the media like no presidential couple before. Mr Scheibner was a leading politician of the Freedom Party. The section “ Gossip mongering ” in which the article at issue had been published provided readers with a look behind the scenes of politics and often contained humorous or satirical contributions. In the applicant company ’ s view the courts had disregarded the satirical nature of the article and its main aim, namely to criticise the attitudes of the so called upper crust of Viennese society which had nothing else to do than to disseminate an absurd rumour about the Federal President ’ s private life. Finally the applicant company claimed that the sanctions imposed on it were disproportionate. 39. Moreover, the applicant company complained that the courts had refused to take evidence on the existence of a rumour about the presidential couple ’ s divorce proposed by it on the ground that the proof of truth was not available where the strictly personal sphere of a person ’ s private life was concerned. 40. The Government asserted that in a case like the present one the State had an obligation to strike a fair balance between the right to private and family life, as guaranteed by Article 8, on the one hand and the right to freedom of expression, provided for in Article 10, on the other. A decisive element in striking that balance was to what extent the incriminated text contributed to a debate of public interest. In the present case, the Austrian courts correctly assessed the impugned article as alleging that Ms Klestil ‑ Löffler intended to divorce and as depicting her and Mr Scheibner as adulterers and Mr Klestil as a deceived husband. As all three of them were well-known public figures the limits of acceptable reporting were wider than for private individuals. However, the allegation of adulterous conduct transgressed these limits. There was no public interest in the rumours reported by the article, which had no connection with the public life or political function of any of the persons concerned. This was all the more so, as Mr Klestil ’ s second and last term as Federal President was coming to an end at the time when the article was published. 41. Furthermore the Government argued that the courts had rightly dismissed the applicant company ’ s defence that the article was of a satirical nature and had merely intended to criticise a certain “upper crust of society” for spreading rumours. Even if one accepted this aim, the actual victims were those whose private life was exposed. In addition the article was counter-productive as it contributed itself to spreading the rumour at issue, while pretending to criticise those who had first launched it. 2. The Court ’ s assessment 42. The Court finds that the domestic courts ’ judgments given in the two sets of proceedings under the Media Act constituted an interference with the applicant ’ s right to freedom of expression. 43. It was not in dispute that that interference was “prescribed by law”, namely by sections 6 and 7 of the Media Act, nor that it served a legitimate aim, namely the protection of the rights and reputation of others. The parties ’ submissions concentrated on whether the interference had been “necessary in a democratic society”. 44. The Court reiterates the fundamental principles established by its case-law on Article 10 (see, among many others, Éditions Plon v. France, no. 58184/00, §§ 42 and 43, ECHR 2004-IV). “42. ... Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual ’ s self-fulfilment. Subject to paragraph 2, it is applicable not only to ‘ information ’ or ‘ ideas ’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no ‘ democratic society ’. As set forth in Article 10, this freedom is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly. The adjective ‘ necessary ’, within the meaning of Article 10 § 2, implies the existence of a ‘ pressing social need ’. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a ‘ restriction ’ is reconcilable with freedom of expression as protected by Article 10. The Court ’ s task, in exercising its supervisory jurisdiction, is not to take the place of the competent national courts but rather to review under Article 10 the decisions they delivered in the exercise of their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully or in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether it was ‘ proportionate to the legitimate aim pursued ’ and whether the reasons adduced by the national authorities to justify it are ‘ relevant and sufficient ’. ... 43. The Court has also repeatedly emphasised the essential role played by the press in a democratic society. In particular, it has held that although the press must not overstep certain bounds, for example in respect of the rights of others, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest. Not only does it have the task of imparting such information and ideas: the public also has a right to receive them (see, among many other authorities, Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, §§ 59 and 62, ECHR 1999-III, and Colombani and Others v. France, no. 51279/99, § 55, ECHR 2002-V). The national margin of appreciation is circumscribed by the interests of a democratic society in enabling the press to exercise its vital role of “ public watchdog ” (see, for example, Bladet Tromsø and Stensaas, cited above, § 59). ... ” 45. The Court observes that the impugned article dealt with rumours about the claimants ’ private life and, in the case of Mr Klestil and Ms Klestil - Löffler, also their family life. 46. In this context the Court reiterates that in cases like the present one, 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 photos or articles in the press to a debate of general interest (see, in particular, Von Hannover v. Germany, no. 59320/00, § 60, ECHR 2004 ‑ VI; see also Tammer v. Estonia, no. 41205/98, § 68, ECHR 2001 ‑ I ). 47. Another important factor to be taken into account is whether the person concerned exercised any official functions. The Court has underlined that a fundamental distinction needs to be made between reporting facts – even controversial ones – capable of contributing to a debate in a democratic society relating to politicians in the exercise of their functions and reporting details of the private life of an individual who does not exercise official functions ( see Von Hannover, cited above, §§ 62-63). 48. The Court has accepted that the right of the public to be informed can in certain special circumstances even extend to aspects of the private life of public figures, particularly where politicians are concerned ( see Von Hannover, cited above, § 64, with reference to Editions Plon, cited above, § 53 ). However, anyone, even if they are known to the general public, must be able to enjoy a “ legitimate expectation ” of protection of and respect for their private life ( see Von Hannover, cited above, § 69). 49. In the present case, it is not in dispute that all three claimants in the proceedings under the Media Act were public figures. At the time of publication of the impugned article, Mr Klestil was the Federal President of Austria, Mrs Klestil-Loeffler, his wife, was herself a high-ranking official at the Foreign Ministry and Mr Scheibner was a leading politician of the Freedom Party. The parties ’ opinions differ in particular as to whether the article made any contribution to a debate of general interest. 50. The Court observes in this context that section 7 of the Media Act protects the strictly personal sphere of any person ’ s life against being discussed or portrayed in a way liable to undermine him or her in public, except where the statements published are true and directly related to public life. 51. In applying section 7 of the Media Act in the present case, the domestic courts ordered the applicant company to pay compensation to the claimants for violating their strictly personal sphere. They found that the impugned article had spread rumours about the presidential couple ’ s private life, alleging that Ms Klestil-Loeffler intended to divorce and insinuating that Mr Scheibner possibly had an adulterous relationship with Ms Klestil-Löffler. They dismissed the applicant company ’ s argument that the article was related to public life. In that respect, they distinguished a politician ’ s alleged marital problems from his or her state of health which, though belonging to the personal sphere, can have a bearing on the exercise of his or her functions. They added that the presidential couple ’ s private life had not played a role during his second term in office. In respect of Mr Scheibner they found that rumours about an alleged relationship between him and the First Lady did not have any link with his public functions and responsibilities. Consequently, since Article 7 of the Media Act prohibits reporting on a person ’ s strictly personal sphere in absolute terms if there is no direct link with public life, the courts refused to take evidence on whether the rumours at issue actually existed at the time. 52. The Court finds that the reasons given by the Austrian courts were “relevant” and “sufficient” to justify the interference. It observes that the courts fully recognised that the present case involved a conflict between the right to impart ideas and the right of others to protection of their private life. It cannot find that they failed properly to balance the various interests concerned. In particular the courts duly considered the claimants ’ status as public figures but found that the article at issue failed to contribute to any debate of general interest. They made a convincing distinction between information concerning the health of a politician which may in certain circumstances be a issue of public concern (see, in particular, Editions Plon, cited above, § 53) and idle gossip about the state of his or her marriage or alleged extra-marital relationships. The Court agrees that the latter does not contribute to any public debate in respect of which the press has to fulfil its role of “public watchdog”, but merely serves to satisfy the curiosity of a certain readership (see, mutatis mutandis, Von Hannover, cited above, § 65). 53. As far as the applicant company complains that it was not allowed to prove that such rumours as reported by the article were circulating at the time, the Court observes that while reporting on true facts about a politician ’ s or other public person ’ s private life may be admissible in certain circumstances, even persons known to the public have a legitimate expectation of protection of and respect for their private life. The Court notes that at no time did the applicant company allege that the rumours were true. However, even public figures may legitimately expect to be protected against the propagation of unfounded rumours relating to intimate aspects of their private life. 54. Having regard to these considerations, the Court finds the domestic courts did not transgress their margin of appreciation when interfering with the applicant company ’ s right to freedom of expression. 55. Furthermore the Court considers that the measures imposed on the applicant company, namely the order to pay compensation to the claimants and to publish the judgments were not disproportionate to the legitimate aim. In sum, the interference with the applicant company ’ s right to freedom of expression could thus reasonably be considered necessary in a democratic society for the protection of the reputation and rights of others within the meaning of Article 10 § 2 of the Convention. 56. There has consequently been no violation of Article 10 of the Convention. | The Court held that there had been no violation of Article 10 (freedom of expression) of the Convention in the present case. Considering that even public figures could legitimately expect to be protected against the propagation of rumours relating to intimate aspects of their private life, it found that the interference in question had been necessary in a democratic society for the protection of the reputation and rights of others. Furthermore, the measures imposed on the applicant company had not been disproportionate. |
141 | Sexual abuse | II. RELEVANT DOMESTIC LAW AND PRACTICE 55. Royal Decree no. 1404 of 20 July 1934, which later became Law no. 835 of 1935, set up the youth courts. The Law has since undergone various amendments. 56. Article 25 of the 1 934 Royal Decree laid down the following provisions regarding cases of erratic behaviour ( irregolare condotta ) on the part of a minor : “Where a minor displays erratic behaviour or personality traits the public prosecutor, the head of the social services, the parents, the guardian or the child education, protection and support authorities may inform the Youth Court, which may carry out a detailed investigation into the minor ’ s personality and may order, by means of a reasoned decision, that the minor be placed in the care of the social services and in an institution.” Article 25 bis of the Royal Decree read as follows : “Any public official who is alerted to the fact that a minor is engaged in prostitution or is a victim of sexual abuse shall inform the public prosecutor at the Youth Court, who shall set the child protection procedures in motion and may propose that the court appoint a curator. The Youth Court shall take the necessary measures to provide the minor with psychological support and rehabilitation. In urgent cases the court may act of its own motion.” Article 27 read as follows: “Where the court has ordered the measure provided for under Article 25, a report shall be drawn up, which must contain the guidelines to be followed by the minor .... The report may order the minor ’ s removal from the family home and must indicate the place where [he or she] is to live. ... A member of the social services must monitor the minor ’ s conduct and help [him or her] overcome his or her problems, working together with the family ... He or she must also report regularly to the Youth Court, providing it with detailed updates on the minor ’ s conduct and the persons who have taken care of him or her. ..” THE LAW I. ADMISSIBILITY 57. The Government argued that the applicant no longer had victim status. The authorities had taken all the necessary measures to protect the applicant by placing her in a specialist institution, where she had remained for one year. The criminal proceedings against her assailants had been concluded and her parents had been joined to the proceedings as civil parties. 58. The Government further submitted that the applicant had not exhausted domestic remedies, as the domestic proceedings had still been pending when the application was lodged. 59. The applicant contested the Government ’ s argument. She submitted, in particular, that the authorities ’ action had been ineffective and that her complaints did not relate to the criminal proceedings against the individuals prosecuted for rape and living on the earnings of prostitution. 60. The Court considers at the outset, like the applicant, that her complaints do not relate to the criminal proceedings for sexual exploitation and rape. Next, as regards the Government ’ s preliminary objection alleging a lack of victim status, 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 Eckle v. Germany, 15 July 1982, §§ 69 et seq., Series A no. 51; Amuur v. France, 25 June 1996, § 36, Reports of Judgments and Decisions 1996-III; Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999 ‑ VI; and Jensen v. Denmark (dec.), no. 48470/99, ECHR 2001 ‑ X ). That rule applies even if the applicant obtains satisfaction after the proceedings before the Court have commenced, in accordance with the subsidiary nature of the Convention system of safeguards ( see, in particular, Mikheyeva v. Latvia (dec.), no. 50029/99, 12 September 2002). The issue as to whether a person may still claim to be the victim of an alleged violation of the Convention essentially entails on the part of the Court an ex post facto examination of his or her situation ( see Scordino v. Italy (no. 1) [GC], no. 36813/97, § 181, ECHR 2006 ‑ V ). 61. Turning to the facts of the present case, the Court considers that there has been neither implicit acknowledgement of the existence of a Convention violation nor any compensation for the period during which the applicant was in a vulnerable situation while she waited for the authorities to take practical steps to protect her. 62. In the light of the foregoing, the Court considers that the applicant may still claim to be the victim of a violation of Articles 3, 8 and 13 of the Convention. It therefore dismisses the Government ’ s preliminary objection in that regard. 63. As to the objection of failure to exhaust domestic remedies, the Court notes at the outset that the applicant lodged her application on 23 July 2014, while she was placed in a specialist institution, that her placement ended in September 2015 and that the proceedings were terminated in January 2017 (see paragraph 44 above). It observes that the proceedings in question, which were provided for by Royal Decree no. 1404 of 20 July 1934, were not capable of affording redress in respect of the applicant ’ s complaints concerning the failure of the social services to act and the delay in implementing protective measures. The Court also notes that the criminal proceedings for sexual exploitation and rape, which ended in 2016 and 2015 respectively, are not the subject of the present application. Accordingly, the Court considers that the application should not be rejected for failure to exhaust domestic remedies, despite the fact that the proceedings provided for by Royal Decree no. 1404 of 20 July 1934 were pending when the application was lodged. It follows that the Government ’ s preliminary objection must be dismissed. 64. 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 therefore declares it admissible. II. ALLEGED VIOLATION OF ARTICLES 3 AND 8 OF THE CONVENTION 65. The applicant alleged that, despite the fact that she had been a minor and the victim of a prostitution ring, the Italian authorities had not taken all the necessary measures to protect her. She relied on Articles 3 and 8 of the Convention, which provide: 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 ... ” A. The applicant ’ s submissions 66. The applicant argued that, although she had been a vulnerable minor, the State had not taken the necessary measures to protect her. The authorities had not acted with the requisite diligence and had not taken account of the risks that she faced. She had been left in a vulnerable situation, without protection, from 20 April 2013 until her placement in the Karisma treatment centre on 14 April 2014. 67. The applicant submitted that her protection had been of paramount importance and that the Youth Court and the competent social services had left her alone and defenceless for some time. During the period in which she had been in the care of the social services, the latter had not monitored her properly and she had been raped. In her submission, the risk of sexual assault had been foreseeable. 68. The applicant pointed out that her parents had requested that protective measures be taken in July 2013, that the case had been set down for hearing before the Youth Court in October 2013 and that the order for her placement and care had been made in December 2013. In her view, this was a very long period of time. She added that she had been the victim of sexual exploitation between August and December 2013 and had been raped in January 2014. 69. In the applicant ’ s submission, the authorities had not done all that could reasonably be expected of them to avoid a real and immediate risk to her life of which they had or ought to have had knowledge. 70. In that connection the applicant argued that the authorities had adopted a passive attitude. The Youth Court had ordered her placement ten months after her parents had made a request to that effect and, once the decision had been adopted, the social services had not taken the necessary steps to have her placed promptly in a specialist institution. The judge had had to ask the social services twice to indicate what measures had been taken to protect her (see paragraphs 28 and 29 above). 71. The applicant alleged that the social services had taken no further interest in her case after she had been placed in the specialist institution. Her return to live with her family had thus been decided solely by the staff in the treatment centre; the social services had never expressed a view on the subject and had not followed up on her case after she had returned to the family home. 72. The applicant submitted that the authorities should have taken urgent action in accordance with the positive obligations arising out of Article 8 of the Convention. On the contrary, they had left her in a vulnerable situation despite being aware of the danger she faced. The initial inaction of the authorities and the subsequent inaction of the social services had thus deprived her of the protection she needed. 73. Accordingly, the applicant was of the view that the authorities had not complied with their positive obligations under Articles 3 and 8 of the Convention. B. The Government ’ s submissions 74. The Government stated that they had adopted all the necessary measures in order to find a solution in the present case. Given the complexity of the applicant ’ s situation, linked to a variety of problems including her drug addiction, it had not been easy to find an appropriate specialist institution capable of taking care of her. 75. Once the Youth Court had been alerted by the applicant ’ s parents to the risks which she faced, including the risk of being caught up in a child prostitution ring, a criminal investigation had been opened and the perpetrators had been arrested in 2014. The authorities had therefore taken all the necessary measures to protect the applicant and prevent ill-treatment. 76. As to the sexual assault on the applicant, the Government submitted that it could not have been foreseen by the authorities, especially since the applicant had not been under the sole supervision of the State at the time of the offence, but had been living with her family. 77. Accordingly, in the Government ’ s submission, the sexual assault on the applicant could not be regarded as a consequence of the delay by the authorities in implementing the Youth Court ’ s decision. 78. In the Government ’ s view, the sexual assault had resulted from unforeseeable conduct. Moreover, the authorities had done everything in their power to identify the perpetrators and bring them to trial. 79. Furthermore, placing a child in the care of the social services was not in itself a protective measure but was to be regarded as assistance to the family, given the need to obtain the minor ’ s consent before placing him or her in an institution and arranging therapeutic support. The Government drew the Court ’ s attention in particular to the dual aim pursued by the measure laid down in Royal Decree no. 1404 of 1934, which later became Law no. 835 of 1935. That measure was designed, firstly, to secure the right to education to children in difficulty and, secondly, to prevent juvenile offending. 80. As to the complaint under Article 8 of the Convention, the Government maintained that the authorities had taken all the necessary measures to protect the applicant as soon as they had become aware of the risks that she faced. 81. The authorities had heard evidence from the applicant and her parents on several occasions in an attempt to find the most appropriate facility to take care of her; several of the facilities that were approached had been unable to admit her. 82. The Government submitted that the authorities had taken all the necessary measures, as they had immediately opened an investigation into sexual exploitation and had convicted the perpetrators of that offence and identified the perpetrators of the sexual assault on the applicant. Referring to the Court ’ s judgment in the case of O ’ Keeffe v. Ireland ( [GC], no. 35810/09, §§ 191-92, ECHR 2014 (extracts) ), they argued that the complaint under Article 8 of the Convention did not raise a separate issue from that raised under Article 3 of the Convention. C. The Court ’ s assessment 1. Applicability of Article 3 of the Convention 83. In order for ill-treatment to fall within the scope of Article 3 of the Convention it must attain a minimum level of severity. 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. The absence of an intention to humiliate or debase the victim cannot conclusively rule out a finding of a violation of Article 3 ( see, among other authorities, V. v. the United Kingdom [GC], no. 24888/94, § 71, ECHR 1999 ‑ IX ). Regard must also be had to the context in which the ill-treatment was inflicted, such as an atmosphere of heightened tension and emotions (compare, for instance, Selmouni v. France [GC], no. 25803/94, § 104, ECHR 1999 ‑ V; see also, among other authorities, Gäfgen v. Germany [GC], no. 22978/05, § 88, ECHR 2010 ) and whether the victim was in a vulnerable situation ( see Khlaifia and Others v. Italy [GC], no. 16483/12, § 160, 15 December 2016 ). 84. In the present case the Court observes that it is not disputed that the applicant was in a vulnerable situation. It therefore considers that the applicant may be regarded as falling into the category of “vulnerable individuals” who are entitled to State protection ( see A. v. the United Kingdom, 23 September 1998, § 22, Reports 1998 ‑ VI). It takes note in that regard of the abuse to which the applicant was subjected, as the victim of sexual exploitation between late August and December 2013 and of rape in January 2014. It further observes that the abuse to which the applicant was subjected, and which took the form of physical assaults and psychological duress, was sufficiently serious to attain the degree of severity necessary to bring it within the scope of Article 3 of the Convention. Accordingly, that provision is applicable in the present case. 2. Applicability of Article 8 of the Convention 85. The Court notes that the applicability of Article 8 of the Convention is not disputed between the parties. It considers it beyond doubt that the abuse to which the applicant was subjected, and which interfered with her right to respect for her physical integrity ( see M.P. and Others v. Bulgaria, no. 22457/08, § 110, 15 November 2011 ), caused disruption to her daily life and had an adverse effect on her private life. The Court has previously found that the physical and moral integrity of an individual is covered by the concept of private life. The concept of private life extends also to the sphere of the relations of individuals between themselves. There appears, furthermore, to be no reason in principle why the notion of “private life” should be taken to exclude attacks on one ’ s physical integrity ( see M.C. v. Bulgaria, no. 39272/98, § 150, ECHR 2003 ‑ XII). 86. It follows that this provision is applicable to the circumstances of the present case. 3. Conclusion 87. In view of the foregoing considerations and of the nature and substance of the complaints raised by the applicant in the present case, the Court considers that they should be examined from the standpoint of Articles 3 and 8 of the Convention. 4. Violation of Articles 3 and 8 of the Convention ( a) Applicable principles 88. The Court would reiterate at the outset that the prohibition of inhuman or degrading treatment is a fundamental value in democratic societies (see, among many other authorities, Selmouni, cited above, § 95; Gäfgen, cited above, § 87; El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 195, ECHR 2012; and Mocanu and Others v. Romania [GC], nos. 10865/09, 45886/07 and 32431/08, § 315, ECHR 2014 (extracts)). It is also a value of civilisation closely bound up with respect for human dignity, part of the very essence of the Convention (see Bouyid v. Belgium [GC], no. 23380/09, §§ 81 and 89-90, ECHR 2015). The prohibition in question is absolute, for no derogation from it is permissible even in the event of a public emergency threatening the life of the nation or in the most difficult circumstances, such as the fight against terrorism and organised crime, irrespective of the conduct of the person concerned (see, among other authorities, Georgia v. Russia (I) [GC], no. 13255/07, § 192, ECHR 2014 (extracts); Svinarenko and Slyadnev v. Russia [GC], nos. 32541/08 and 43441/08, § 113, ECHR 2014 (extracts); and Bouyid, cited above, § 81). 89. The Court reiterates that the obligation of the High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to ill-treatment, including ill-treatment administered by private individuals (see A. v. the United Kingdom, cited above, § 22; Z and Others v. the United Kingdom [GC], no. 29392/95, §§ 73-75, ECHR 2001-V; E. and Others v. the United Kingdom, no. 33218/96, 26 November 2002; and M.C. v. Bulgaria, cited above, § 149 ). These measures must provide effective protection, in particular of children, who are particularly vulnerable to various forms of violence, and include reasonable steps to prevent ill ‑ treatment of which the authorities had or ought to have had knowledge, as well as effective deterrence protecting minors against such serious breaches of personal integrity ( see, mutatis mutandis, Osman v. the United Kingdom, 28 October 1998, § 116, Reports 1998-VIII; E. and Others v. the United Kingdom, cited above, § 88; Z and Others v. the United Kingdom, cited above, § 73; and M.P. and Others, cited above, § 108). Such measures must be aimed at ensuring respect for human dignity and protecting the best interests of the child (see C.A.S. and C.S. v. Romania, no. 26692/05, § 82, 20 March 2012, and Pretty v. the United Kingdom, no. 2346/02, § 65, ECHR 2002-III). 90. Bearing in mind the difficulties in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, the scope of this positive obligation must, however, be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. 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 a positive obligation to arise, it must be established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk of ill-treatment of an identified individual from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. 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, including the guarantees contained in Article 8 of the Convention ( see Đorđević v. Croatia, no. 41526/10, §§ 139, ECHR 2012, and the case-law cited therein ). 91. Regarding the protection of the physical and psychological integrity of an individual from other persons, the Court has previously held that the authorities ’ positive obligations – in some cases under Articles 2 or 3 and in other instances under Article 8 taken alone or in combination with Article 3 of the Convention – may include a duty to maintain and apply in practice an adequate legal framework affording protection against acts of violence by private individuals (see, among other authorities, Osman, cited above, §§ 128-30; Bevacqua and S. v. Bulgaria, no. 71127/01, § 65, 12 June 2008; Sandra Janković v. Croatia, no. 38478/05, § 45, 5 March 2009; A v. Croatia, no. 55164/08, § 60, 14 October 2010; and Đorđević, cited above, §§141-43). 92. Nevertheless, 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 Opuz v. Turkey, no. 33401/02, § 165, ECHR 2009). Moreover, under Article 19 of the Convention and under 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 Sandra Janković, cited above, § 46, and Hajduová v. Slovakia, no. 2660/03, § 47, 30 November 2010). The question of the appropriateness of the authorities ’ response may raise a problem under the Convention (see Bevacqua and S., cited above, § 79). 93. The positive obligation to protect a person ’ s physical integrity extends to matters concerning the effectiveness of a criminal investigation, which cannot be considered to be limited solely to cases of ill-treatment by State agents (see M.C. v. Bulgaria, cited above, § 151). 94. This aspect of the positive obligation does not necessarily require a conviction, but effective implementation of the law, particularly criminal, in order to secure the protection of the rights guaranteed by Article 3 of the Convention ( see M.G. v. Turkey, no. 646/10, § 80, 22 March 2016 ). 95. A requirement of promptness and reasonable expedition is implicit in the obligation to carry out an investigation. The protection machinery provided for in domestic law must operate in practice within a reasonable time such as to conclude the examination on the merits of specific cases submitted to the authorities (see Opuz, cited above, §§ 150-51). The State ’ s obligation under Article 3 of the Convention will not be deemed to be satisfied if the protection afforded by domestic law exists only in theory: above all, it must also operate effectively in practice, and that requires a prompt examination of the case without unnecessary delays. ( b) Application of the above-mentioned principles to the present case 96. In the present case there is no doubt that the abuse to which the applicant was subjected falls within the scope of application of Article 3 of the Convention and constitutes interference with her right to respect for her physical integrity as guaranteed by Article 8 of the Convention. 97. The Court must ascertain whether the legislation and the manner in which it was implemented in the instant case, coupled with the alleged failure of the social services to take action, were defective to the point of constituting a violation of the respondent State ’ s positive obligations under Articles 3 and 8 of the Convention. 98. The main issue which arises in the present case is therefore whether the authorities took all the necessary measures to prevent the abuse to which the applicant was subjected and to protect her physical integrity. 99. The Court will examine first of all whether the competent authorities were or should have been aware of the vulnerable situation of the applicant. 100. In that connection the Court notes that it is clear from the case file that the authorities were aware as of April 2013 of the erratic behaviour displayed by the applicant, who had been found in possession of alcohol and drugs, since the public prosecutor at the Youth Court had been alerted to the situation. 101. It also notes that in May and June 2013 the minor ’ s parents informed the authorities of the state of distress of their daughter, who had a bipolar disorder and an attention deficit disorder and also showed signs of a borderline and anti-social personality (see paragraph 8 above). They also mentioned the risk, supported by documentary evidence, of her becoming caught up in a prostitution ring. 102. In view of the above considerations, the Court is satisfied that the domestic authorities were aware of the applicant ’ s vulnerable situation and of the real and immediate risk that she faced. It will therefore examine whether, regard being had to the circumstances of the case, those authorities took all reasonable measures to protect the applicant as soon as they became aware of the risks facing her. 103. The Court notes that the authorities immediately instituted a criminal investigation but that no measures were put in place to protect the applicant, who was aged 15 at the time. Although the public prosecutor requested on 2 July 2013 (see paragraph 12 above ) that urgent proceedings be instituted and that the applicant be placed in a specialist institution and in the care of the social services, the Youth Court took more than four months to reach a decision. 104. The Court also notes that it emerged from the criminal proceedings concerning the prostitution ring that the applicant had been the victim of sexual exploitation during the period in question (see paragraph 52 above). The applicant was thus engaged in prostitution and part of her earnings stemmed from the actions of the two members of the prostitution ring. 105. The Court observes that it took the social services more than four months following the Youth Court ’ s decision of December 2013 to implement the order for the applicant ’ s placement, notwithstanding the requests to that effect made by the applicant ’ s parents and two urgent requests for information from the Youth Court (see paragraphs 28 and 29 above). 106. The Court notes that, in the meantime, the applicant was the victim of rape (see paragraph 25 above), that criminal proceedings for gang rape were instituted in that regard, that the alleged perpetrators were identified and that the proceedings are pending before the Rome District Court (see paragraph 54 above). 107. The Court considers that in assessing the State ’ s compliance with its positive obligations under Articles 3 and 8 of the Convention, considerable weight should be attached to the social services ’ and/or child protection authorities ’ efforts to protect the minor in question ( see, mutatis mutandis, M.P. and Others v. Bulgaria, cited above, § 11 4 ). 108. In the present case the Court observes that it took the Youth Court four months, from the date on which it became aware of the applicant ’ s difficult and dangerous situation (see paragraph 12 above), to adopt the protective measures provided for by law and requested by the public prosecutor, despite the fact that the applicant faced a known risk of sexual exploitation, given that a criminal investigation was under way and her parents had informed the authorities. 109. The Court is not persuaded by the Government ’ s argument that, in the absence of her consent, the applicant ’ s placement in an institution, as ordered by the Youth Court in its decision of 9 December 2013 (see paragraph 17 above), was not possible. Even assuming this to have been the case, the Court notes in that connection that, while the applicant had refused such a placement in December 2013 (see paragraph 22 above), she gave her consent in January 2014 (see paragraph 23 above), that is, three months before she was admitted to the Karisma centre (see paragraph 35 above). The Court therefore concludes that the fact that at one point in time the applicant did not give her consent did not in itself exempt the State from acting rapidly to take appropriate and sufficient measures to protect a minor in such a way as to ensure compliance with the positive obligations imposed by Articles 3 and 8 of the Convention. In addition – and despite the urgent nature of the request made by the President of the Youth Court regarding the measures taken to assist the applicant, who was in a difficult situation – the Court finds that the conduct of the social services indicates a lack of real commitment on their part to implementing the Youth Court ’ s decision, in view of their failure to attend the hearings (see paragraphs 14 and 15 above) and the time they took to select an institution to admit the applicant. 110. In the Court ’ s view, the national authorities had a duty to take account of the applicant ’ s particular psychological and physical vulnerability and to assess the situation accordingly by taking immediate and appropriate protective measures. That did not happen in the present case. 111. The Court notes that, unlike the criminal courts, which acted rapidly, the competent authorities (the Youth Court and the social services) did not actually take any immediate protective measures, despite being aware that the applicant was vulnerable, that proceedings concerning her sexual exploitation were still pending and that an investigation into gang rape was ongoing. Accordingly, the authorities did not carry out any assessment of the risks faced by the applicant. 112. In these circumstances the Court considers that the authorities cannot be said to have acted with the requisite diligence. It therefore finds that they did not take, in a timely manner, all reasonable measures to prevent the abuse of which the applicant was a victim. 113. Accordingly, the Court finds a violation of Articles 3 and 8 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 114. The applicant alleged that she had not had a remedy in domestic law by which to complain of the violations of her rights. 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.” 115. The Government contested that argument. 116. Having regard to its finding of a violation of Articles 3 and 8 of the Convention (see paragraph 113 above), the Court considers that it has examined the main legal question raised in the present case. In view of all the facts of the case and the parties ’ submissions, it considers that there is no need to examine the same facts under Article 13 of the Convention (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014, and the case-law cited therein ). IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 117. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 118. The applicant claimed 150, 000 euros (EUR) in respect of non ‑ pecuniary damage. 119. The Government contested that claim. 120. The Court considers it appropriate to award the applicant EUR 30,000 in respect of non-pecuniary damage. B. Costs and expenses 121. Submitting documentary evidence, the applicant also claimed EUR 4,152 .1 0 for the costs and expenses incurred before the domestic courts and EUR 19,153.65 for costs and expenses before the Court. 122. The Government contested the applicant ’ s claims, arguing that she had not demonstrated that she had incurred the costs and expenses claimed. 123. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these 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 its case-law, the Court rejects the claim for costs and expenses in the domestic proceedings and considers it reasonable to award the sum of EUR 10,000 for the proceedings before the Court. C. Default interest 124. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Articles 3 (prohibition of inhuman or degrading treatment) and 8 (right to respect for private life) of the Convention, finding that the Italian authorities had not acted with the necessary diligence and had not taken all reasonable measures in good time to prevent the abuses suffered by the applicant. It noted in particular that, although the criminal courts had acted promptly, the Youth Court and the social services had not taken any immediate protective measures, even though they had known that the applicant (aged 15 at the time) was vulnerable and that proceedings concerning her sexual exploitation and an investigation into the gang rape were ongoing. |
342 | Police violence | II. RELEVANT DOMESTIC LAW AND PRACTICE 20. A description of the domestic law and practice concerning prosecution for ill-treatment in force at the material time can be found in Batı and Others v. Turkey, nos. 33097/96 and 57834/00, §§ 96-98, ECHR 2004-IV (extracts). THE LAW I. ALLEGED VIOLATION OF ARTICLES 3, 6 AND 13 OF THE CONVENTION 21. The applicant alleged under Articles 3, 6 and 13 of the Convention that she had been subjected to ill-treatment while in police custody first at the Security Branch and subsequently at the Anti- Terrorism Branch of the Istanbul Security Headquarters, and that the authorities had failed to carry out an effective investigation into her allegations of ill-treatment. 22. The Court considers that these complaints should be examined from the standpoint of Article 3 alone (see Mesut Deniz v. Turkey, no. 36716/07, § 36, 5 November 2013, and Uğur v. Turkey, no. 37308/05, §§ 77-78, 13 January 2015 ). Article 3 of the Convention reads: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. Admissibility 23. The Government argued that the application should be rejected for non-exhaustion of domestic remedies, on the ground that the applicant had failed to raise her complaints before the domestic courts. 24. The applicant stated that she had lodged a criminal complaint against the perpetrators, upon which criminal proceedings were instituted. She further maintained that she had lodged an appeal against the judgment of the Istanbul Assize Court with the Court of Cassation. 25. The Court observes that, contrary to the Government ’ s assertion, the applicant brought her complaints to the attention of the national authorities on many occasions (see paragraphs 8, 10, 12, 17 and 18 above). The Court therefore rejects the Government objection. 26. 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 responsibility of the respondent State in the light of the substantive aspect of Article 3 of the Convention 27. The applicant submitted that she had been subjected to various forms of ill-treatment amounting to torture while detained in police custody. She submitted, in particular, that she had been beaten, hung by her arms, threatened with rape and subjected to sexual harassment. 28. The Government submitted that the applicant ’ s allegations of ill ‑ treatment were unsubstantiated. They maintained that the injuries observed on the applicant ’ s body had originated in the legitimate use of force by the police as the applicant had resisted the police officers ’ attempts to arrest her. They further argued that the applicant had herself inflicted certain injuries on her body during an uproar which broke out in the custody suite in which she had been placed following her arrest, when the detainees hit the walls with their hands and attempted to break the iron partitions. 29. The Court reiterates that allegations of ill-treatment must be supported by appropriate evidence (see, in particular, Tanrıkulu and Others v. Turkey (dec.), 45907/99, 22 October 2002). In assessing evidence, the Court has generally applied the standard of proof “beyond reasonable doubt” (see Avşar v. Turkey, no. 25657/94, § 282, ECHR 2001-VII (extracts)). Such proof may, however, follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see Ireland v. the United Kingdom, judgment of 18 January 1978, § 161, Series A no. 25). Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries occurring during detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII). 30. In that respect, where an individual is taken into custody in good health but is found to be injured by the time of release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused and to produce evidence casting doubt on the victim ’ s allegations, particularly if those allegations were corroborated by medical reports, failing which a clear issue arises under Article 3 of the Convention (see Tomasi v. France, 27 August 1992, §§ 108-111, Series A no. 241-A; Ribitsch v. Austria, 4 December 1995, § 34, Series A no. 336; Aksoy v. Turkey, 18 December 1996, § 62, Reports of Judgments and Decisions 1996-VI; and Selmouni v. France [GC], no. 25803/94, § 87, ECHR 1999-V). 31. Turning to the circumstances of the present case, the Court observes that the applicant was not medically examined at the beginning of her detention. On 9 June 1999, two days after being taken into custody, the applicant was examined by a doctor who noted that she had a scrape under her left armpit, a 7-8 cm - long large brown macule on her right forearm and a 3 cm - long oedema on her forehead above the nose (see paragraph 7 above). Moreover, according to the medical report of 14 June 1999, which was drafted after the applicant ’ s transfer to prison, the applicant had a 4 x5 cm mark on her right forearm and swelling on her right clavicle and complained about pain in her arms and a headache. 32. The Court notes that neither the Government nor the applicant disputed the authenticity or the findings of these medical reports. However, they put forward different explanations as to how the applicant had sustained those injuries. The applicant claimed that she had been beaten : in particular, she had received blows to her head and had been hung by her arms by police officers; the Government alleged that the injuries had occurred when she had attempted to resist the police officers in the course of her arrest and during a disturbance which had taken place in the detention facility where the applicant had been held in custody. 33. In this connection, the Court notes that the Government did not adduce any document in support of their claims that the applicant ’ s injuries had occurred as a result of the use of force or on account of her own conduct while detained in police custody. Moreover, no arrest report describing the alleged use of force or incident report giving details of the alleged disturbance at the detention facility was prepared. The Court therefore does not find it convincingly proved that the applicant had sustained the injuries noted in the reports of 9 and 14 June 1999 as a result of a legitimate use of force (see Demirbaş and Others v. Turkey, nos. 50973/06, 8672/07 and 8722/07, § 59, 9 December 2008 ). Besides, considering the gravity and nature of the injuries, the Court does not find it likely that they were self-inflicted (compare Nevruz Koç v. Turkey, no. 18207/03, § 44, 12 June 2007). 34. The Court observes that the applicant did not bring her complaints of sexual harassment and rape threats until the investigation was re- opened in 2003. Nonetheless, the Court considers that the findings contained in the medical reports were consistent with at least the applicant ’ s allegations of having been hung by her arms and having received blows to her head. In the circumstances of the present case, and in view of the absence of a plausible explanation from the Government, the Court finds that these injuries were the result of ill-treatment for which the Government bore responsibility. 35. Having regard to the nature and degree of the ill-treatment and to the strong inferences that can be drawn from the evidence that it was inflicted in order to obtain information from the applicant about her suspected connection with the DHKP/C, the Court finds that the ill-treatment involved very serious and cruel suffering that can only be characterised as torture (see, among other authorities, Salman, cited above, § 115; Aksoy, § 64, cited above; Abdülsamet Yaman v. Turkey, no. 32446/96, § 47, 2 November 2004; Koçak v. Turkey, no. 32581/96, § 48, 3 May 2007; and Ateşoğlu v. Turkey, no. 53645/10, § 20, 20 January 2015 ). 36. Accordingly, there has been a violation of Article 3 of the Convention under its substantive limb. 2. The responsibility of the respondent State in the light of the procedural aspect of Article 3 of the Convention 37. The applicant maintained that the criminal proceedings brought against the police officers had been ineffective as initially on 8 June 2001 the public prosecutor issued a decision not to prosecute the perpetrators due to lack of evidence and the case was closed without the decision being notified to her. The criminal proceedings were instituted almost two years later, on 6 August 2003, before the Fatih Criminal Court and were not conducted with due diligence. 38. The Government submitted that the applicant ’ s allegations of ill ‑ treatment had been the subject of an effective investigation. In this regard they maintained that a criminal investigation had been instituted into the applicant ’ s allegations and that the subsequent criminal proceedings had been conducted with due diligence. 39. The Court reiterates that Article 3 of the Convention requires the authorities to investigate allegations of ill-treatment when they are “arguable” and “raise a reasonable suspicion” (see, in particular, Ay v. Turkey, no. 30951/96, §§ 59-60, 22 March 2005). The minimum standards of effectiveness defined by the Court ’ s case-law include the requirements that the investigation be independent, impartial and subject to public scrutiny. It is beyond doubt that a requirement of promptness and reasonable expedition is implicit in this context. A prompt response by the authorities in investigating allegations of ill-treatment 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 Batı and Others, cited above, § 136 ). When the official investigation has led to the institution of proceedings in the national courts, the proceedings as a whole, including the trial stage, must satisfy the requirement of the prohibition of ill-treatment. While there is no absolute obligation for all prosecutions to result in conviction or in a particular sentence, the national courts should not under any circumstances be prepared to allow grave attacks on physical and moral integrity to go unpunished (see Okkalı v. Turkey, no. 52067/99, § 65, ECHR 2006-XII (extracts)). 40. The Court has found above that the respondent State was responsible, under Article 3 of the Convention, for the injuries sustained by the applicant. An effective investigation was therefore required. 41. In this connection, the Court observes that an investigation into the applicant ’ s allegations of ill-treatment was initiated upon the criminal complaint lodged by the applicant, albeit that it was concluded with a decision not to prosecute. Moreover, as it transpires from the documents in the case-file, in 2003 the domestic authorities reopened the investigation on their own motion. 42. The Court observes, however, serious shortcomings in the investigation and in the ensuing criminal proceedings. The initial investigation resulted in a decision of 8 June 2001 not to bring any proceedings. Even though the investigation was reopened at a later date and criminal proceedings into the applicant ’ s allegations were finally instituted before the Fatih Assize Court on 6 August 2003, it took the domestic court almost two years to determine that it lacked jurisdiction. The Court further notes that the Istanbul Assize Court did not hold its first hearing until 6 March 2006, approximately five months after the Court of Cassation designated it as the competent court. Therefore, the Court cannot but find that there were substantial delays in the criminal proceedings in question: they lasted approximately seven years and eight months and were eventually discontinued on account of prescription. 43. In a number of its judgments in cases against Turkey, the Court has observed that the judicial authorities ’ failure to show diligence in expediting criminal proceedings against police officers for ill-treatment-related offences has resulted in those proceedings becoming time-barred (see, inter alia, Mustafa Taştan v. Turkey, no. 41824/05, §§ 50-51, 26 June 2012; İzci v. Turkey, no. 42606/05, § 72, 23 July 2013; and Yerli v. Turkey, no. 59177/10, § 63, 8 July 2014 ). As it has done in those judgments, the Court considers in the present application that on account of the inordinate delays the criminal law system has proved to be far from rigorous and to be lacking in the dissuasive effect capable of ensuring the effective prevention of unlawful acts such as those complained of by the applicant (see Yazıcı and Others v. Turkey (no. 2), no. 45046/05, § 27, 23 April 2013 and the cases cited therein). 44. The Court has also held that in cases concerning torture or ill ‑ treatment inflicted by State agents, criminal proceedings ought not to be discontinued on account of a limitation period, and also that amnesties and pardons should not be tolerated in such cases (see Mocanu and Others v. Romania [GC], nos. 10865/09, 458 86/07 and 32431/08, § 326, ECHR 2014 (extracts); see also Abdülsamet Yaman, cited above, § 55). 45. Furthermore, there is nothing in the case-file to indicate that the accused police officers were suspended from duty while they were under investigation. On this point, the Court underlines the importance of the suspension from duty of the agent under investigation in order to prevent any appearance of collusion in or tolerance of unlawful acts ( ibid. ). 46. Thus, in view of the aforementioned shortcomings, and in particular the substantial delay in the conduct of the proceedings, the Court finds that the perpetrators of acts of violence enjoyed virtual impunity, despite the evidence at hand (see Uğur, cited above, § 105 ). The Court therefore considers that the investigation and the ensuing criminal proceedings were inadequate and therefore in breach of the State ’ s procedural obligations under Article 3 of the Convention. 47. Accordingly, there has been a violation of Article 3 of the Convention under its procedural limb. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 48. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 49. The applicant claimed 100,000 euros (EUR) in respect of non-pecuniary damage. 50. The Government submitted that the amount claimed by the applicant was excessive. 51. In view of the violations found under Article 3 of the Convention, the Court finds that the applicant must have suffered pain and distress which cannot be compensated for solely by the Court ’ s finding of a violation. It therefore awards the applicant EUR 45, 000 in respect of non-pecuniary damage. B. Costs and expenses 52. The applicant also claimed EUR 5,190 for the costs and expenses incurred before the domestic courts and the Court. In support of her claims, the applicant submitted a legal fees agreement concluded with her lawyer demonstrating that she should pay 200 Turkish liras (TRY, approximately EUR 89 at the time of submission of the claims ) to her representative per hour for the legal advice and representation provided before the Court. The applicant further submitted to the Court a breakdown of the hours spent by her lawyer in representing her both in Turkey and before the Court. According to that breakdown, the lawyer spent a total of twenty six hours during the proceedings at the national level and thirty hours in the course of the proceedings before the Court, charged at an hourly rate of 200 TRY. The applicant further claimed EUR 213 for translation, postal and photocopying costs. In this connection she submitted a table of costs. 53. The Government submitted that the amounts claimed by the applicant were excessive and 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. The Court notes at the outset that no invoice has been submitted to substantiate the costs. It therefore rejects those claims. As regards the lawyers ’ fees, the Court considers that the applicant ’ s claim for her lawyers ’ fees in respect of the fifty six hours of legal work carried out in the course of the proceedings before the domestic courts and the Court may be regarded as reasonable. Therefore, in view of the documents in its possession and the above criteria, the Court considers it reasonable to award the applicant the sum of EUR 4, 900 in respect of costs and expenses. 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 3 (prohibition of torture and inhuman or degrading treatment) of the Convention both in its substantive and procedural aspect. Having regard in particular to the nature and degree of the ill-treatment and to the strong inferences that could be drawn from the evidence that it had been inflicted in order to obtain information from the applicant about her suspected connection with an illegal political organisation, the Court found that the ill-treatment involved very serious and cruel suffering that could only be characterised as torture. The Court also found that the investigation and the ensuing criminal proceedings had been inadequate and therefore in breach of the State’s procedural obligations under Article 3. |
876 | Respect for private life in the employment context | 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 violation of Article 8 (right to respect for private life) of the Convention. It found in particular that the interference complained of by the applicant was not “in accordance with the law” within the meaning of Article 8 of the Convention. |
683 | Online hate speech | RELEVANT legal framework and practice Domestic LawCivil Code ( Allgemeines Bürgerliches Gesetzbuch, published in the Collection of Judicial Acts, no. 946/1811) Civil Code ( Allgemeines Bürgerliches Gesetzbuch, published in the Collection of Judicial Acts, no. 946/1811) Civil Code ( Allgemeines Bürgerliches Gesetzbuch, published in the Collection of Judicial Acts, no. 946/1811) 34. Article 1330 of the Civil Code, as in force since 1 January 1916 (published in Imperial Law Gazette no. 69/1916), provides as follows: “1. Anybody who, as a result of defamation, suffers real damage or loss of profit may claim compensation. 2. The same shall apply if anyone disseminates allegations that jeopardise a person’s reputation, income or livelihood, the falsity ( Unwahrheit ) of which was known or should have been known to him or her. [Such a person] also has a right to request a retraction and the publication thereof ...” Media Act ( Mediengesetz, published in Federal Law Gazette no. 314/1981) 35. Section 31(1) and (2) of the Media Act, as amended, in force since 1 January 2008 (published in Federal Law Gazette no. 112/2007), state as follows: “(1) Media owners, editors, copy editors and employees of a media company or media service have the right to refuse, as witnesses in criminal proceedings or other proceedings before a court or an administrative authority, to answer questions relating to the identity of the author, sender or source of articles and documentation, or to any information that they have obtained in connection with their profession. (2) The right stipulated in paragraph (1) must not be bypassed – in particular by ordering the person enjoying this right to disclose: documents; printed matter; image, sound or data carriers; illustrations; or other representations of such contents, or by confiscating them.” E-Commerce Act ( E-Commerce Gesetz, published in Federal Law Gazette no. 152/2001) 36. Section 16(1) of the E-Commerce Act reads as follows: “(1) A service provider who stores information provided by a user is not liable for the information stored at the request of that user, on condition that: 1. the provider does not have actual knowledge of any illegal activity or [illegal] information and, as regards claims for damages, is not aware of facts or circumstances from which any illegal activity or information is apparent; or 2. the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to [such] information.” 37. Section 18(4) of the E-Commerce Act provides as follows: “(4) Service providers mentioned in section 16 must transmit the name and address of a user of their service, with whom they have concluded agreements concerning the storage of information, to third parties at the request [of those third parties] if they demonstrate ( glaubhaft machen ) an overriding legal interest in determining the identity of [that] user and [establishing the existence of] a particular illegal situation, and furthermore demonstrate that knowledge of such information constitutes a material prerequisite for legal prosecution.” Enforcement Act ( Exekutionsordnung, published in Federal Law Gazette no. 79/1896, as amended in Federal Law Gazette no. 86/2021) 38. Section 354 of the Enforcement Act reads as follows: “(1) A claim to an act ( Anspruch auf eine Handlung ) which cannot be performed by a third party and the performance of which depends exclusively on the will of the obligor shall be enforced by the execution court upon application by way of fines or by imprisonment for a maximum total period of up to six months. (2) Execution shall begin by notice being served that a penalty will be imposed in the event of default; initially, only notice of a potential fine may be served. [Should] the time-limit ... for the performance of the act [in question] expire, the threatened coercive measure shall be enforced at the request of the enforcing creditor and, at the same time, notice of increasingly severe coercive measures shall be served, with the setting of a new time-limit in respect of the performance [of the act in question]. Enforcement of the latter shall only take place at the request of the enforcing creditor”. Domestic Practice 39. Regarding service providers’ duty under section 18(4) of the E ‑ Commerce Act (see paragraph 37 above) to disclose user data, the Supreme Court has established in its case-law that for a plaintiff to demonstrate an overriding legal interest it is sufficient that it is not possible to rule out the possibility of a finding of liability under Article 1330 of the Civil Code (see paragraph 34 above) on the basis of the contested allegations. Any distinction between a statement of facts and a potentially excessive value judgment has to be determined in proceedings against the actual author of the comments in question and not in proceedings against the relevant service provider (see Supreme Court judgments of 23 January 2014, 6 Ob 133/13 x; of 30 January 2017, 6 Ob 188/16 i; and, more recently, of 27 November 2019, 6 Ob 156/19 p). RELEVANT International INSTRUMENTS 40. Relevant material concerning freedom of communication on the Internet and its limits referenced in the instruments of the Council of Europe, the United Nations (UN) and the European Union is outlined in paragraphs 44-57 of the judgment in Delfi AS v. Estonia ([GC], no. 64569/09, ECHR 2015). The quoted material contains, inter alia, the Declaration on freedom of communication on the Internet adopted by the Committee of Ministers of the Council of Europe on 28 May 2003 (ibid., § 44) which identifies the principle of anonymity in the field of communication on the Internet and states as follows: “Principle 7: Anonymity In order to ensure protection against online surveillance and to enhance the free expression of information and ideas, member states should respect the will of users of the Internet not to disclose their identity. This does not prevent member states from taking measures and co-operating in order to trace those responsible for criminal acts, in accordance with national law, the Convention for the Protection of Human Rights and Fundamental Freedoms and other international agreements in the fields of justice and the police." 41. The relevant material quoted in Delfi AS v. Estonia further contains the Recommendation CM/Rec(2011)7 of the Committee of Ministers to member States on the new notion of media which underlines the importance of the role of intermediaries (ibid., § 46), the report of the UN Human Rights Council’s Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression dated 22 May 2015 (A/HRC/29/32) which states that no State should use or force intermediaries to undertake censorship on its behalf (ibid., § 48) and relevant parts of the Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce) on the liability of intermediaries (ibid., § 50). 42. In addition, the Directive on electronic commerce provides as follows: “(9) The free movement of information society services can in many cases be a specific reflection in Community law of a more general principle, namely freedom of expression as enshrined in Article 10(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, which has been ratified by all the Member States; for this reason, directives covering the supply of information society services must ensure that this activity may be engaged in freely in the light of that Article, subject only to the restrictions laid down in paragraph 2 of that Article and in Article 46(1) of the Treaty; this Directive is not intended to affect national fundamental rules and principles relating to freedom of expression. ... (14) ... the implementation and application of this Directive should be made in full compliance with the principles relating to the protection of personal data, in particular as regards unsolicited commercial communication and the liability of intermediaries; this Directive cannot prevent the anonymous use of open networks such as the Internet. ... (41) This Directive strikes a balance between the different interests at stake and establishes principles upon which industry agreements and standards can be based. ... (52) The effective exercise of the freedoms of the internal market makes it necessary to guarantee victims effective access to means of settling disputes; damage which may arise in connection with information society services is characterised both by its rapidity and by its geographical extent; in view of this specific character and the need to ensure that national authorities do not endanger the mutual confidence which they should have in one another, this Directive requests Member States to ensure that appropriate court actions are available; Member States should examine the need to provide access to judicial procedures by appropriate electronic means.” 43. The Recommendation CM/Rec(2014)6 of the Committee of Ministers to member States on a Guide to human rights for Internet users, adopted on 16 April 2014, stated the following: “Freedom of expression and information You have the right to seek, receive and impart information and ideas of your choice, without interference and regardless of frontiers. This means: 1. you have the freedom to express yourself online and to access information and the opinions and expressions of others. This includes political speech, views on religion, opinions and expressions that are favourably received or regarded as inoffensive, but also those that may offend, shock or disturb others. ... 2. restrictions may apply to expressions which incite discrimination, hatred or violence. These restrictions must be lawful, narrowly tailored and executed with court oversight. ... 6. you may choose not to disclose your identity online, for instance by using a pseudonym. However, you should be aware that measures can be taken, by national authorities, which might lead to your identity being revealed.” 44. The European Parliament resolution of 21 May 2013 on the EU Charter: standard settings for media freedom across the EU (2011/2246/INI)) stresses the following: “28. ... that the fundamental right to freedom of expression and freedom of the media is not only reserved for traditional media, but also covers social media and other forms of new media; underlines the importance of ensuring freedom of expression and information on the internet, notably through guaranteeing net neutrality, and consequently calls on the EU and the Member States to ensure that these rights and freedoms are fully respected on the internet in relation to the unrestricted access to and provision and circulation of information; ...” 45. The Council of Europe’s Appendix to Recommendation CM/Rec(2018)2 of the Committee of Ministers to member States on the roles and responsibilities of Internet intermediaries (adopted on 7 March 2018) reads as follows, in so far as relevant: “2.4. Use of personal data 2.4.1. Intermediaries should not disclose personal data to a third party unless required by law or requested to do so by a judicial authority or other independent administrative authority whose decisions are subject to judicial review that has determined that the disclosure is consistent with applicable laws and standards, necessary in a democratic society and proportionate to the legitimate aim pursued. ...” 46. The UN Human Rights Council’s Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression stated the following in his report of 22 May 2015 to the Human Rights Council (A/HRC/29/32): “60. States should not restrict encryption and anonymity, which facilitate and often enable the rights to freedom of opinion and expression. Blanket prohibitions fail to be necessary and proportionate. ... States should refrain from making the identification of users a condition for access to digital communications and online services and requiring SIM card registration for mobile users. Corporate actors should likewise consider their own policies that restrict encryption and anonymity (including through the use of pseudonyms). Court-ordered decryption, subject to domestic and international law, may only be permissible when it results from transparent and publicly accessible laws applied solely on a targeted, case-by-case basis to individuals ... and subject to judicial warrant and the protection of due process rights of individuals.” 47. The UN Human Rights Council’s Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression stated the following in his report of 11 May 2016 to the Human Rights Council (A/HRC/32/38): “85. States bear a primary responsibility to protect and respect the right to exercise freedom of opinion and expression. In the information and communication technology context, this means that States must not require or otherwise pressure the private sector to take steps that unnecessarily or disproportionately interfere with freedom of expression, whether through laws, policies, or extra-legal means. Any demands, requests and other measures to take down digital content or access customer information must be based on validly enacted law, subject to external and independent oversight, and demonstrate a necessary and proportionate means of achieving one or more aims under article 19 (3) of the International Covenant on Civil and Political Rights. ...” 48. The UN Human Rights Council’s Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression stated the following in his report of 30 March 2017 to the Human Rights Council (A/HRC/35/22): “78. It is also critical for the Council and States to draw the connections between privacy interference and freedom of expression. ... But certain interferences – such as overbroad requests for user data and third-party retention of such data – can have both near- and long-term deterrent effects on expression, and should be avoided as a matter of law and policy. At a minimum, States should ensure that surveillance is authorized by an independent, impartial and competent judicial authority certifying that the request is necessary and proportionate to protect a legitimate aim.” THE LAW ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 49. The applicant company complained that being ordered to disclose the data of users who had posted comments on its Internet news portal had infringed its freedom of expression, as provided by Article 10 of the Convention, which reads as follows: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” Admissibility 50. The Government argued that the application should be rejected for being manifestly ill-founded, pursuant to Article 35 § 3 (a) and § 4 of the Convention. 51. The applicant company submitted that the application was admissible. 52. 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 on the merits. The Court therefore concludes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention and that the Government’s objection must be dismissed. It also notes that the application is not 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 company 53. The applicant company argued that the user data in question constituted journalistic sources. They were thus protected by editorial confidentiality in the same way as were data of authors of readers’ letters published in a newspaper. It furthermore complained about the domestic courts characterising the user comments as possibly defamatory under Article 1330 of the Civil Code (see paragraph 34 above), arguing that, on the contrary, they in fact constituted permissible value judgments. 54. Authors of postings in online discussion forums, just as authors of readers’ letters, had to be able to rely on their protection by media owners, as ensured by editorial confidentiality. Otherwise, they could be deterred from assisting the press in informing the public about matters of general interest. At the very least, users would adjust their behaviour by limiting their exercise of the right to open discussion in a way that would be at odds with the kind of free culture of discussion protected by Article 10. The applicant company’s media operations had earned an excellent reputation for offering critical and reflective media coverage. That reputation would without a doubt be negatively affected by an absence of statements on its platform caused by a “chilling effect”. 55. Owing to the difficult legal situation, operators of online discussion forums might limit or even shut down those forums for good. Thus, not only the author of the comment, but also the applicant company and the public had a legitimate interest in protecting the identity of people who posted such comments. 56. The domestic courts had forced the applicant company into the “corset” of a host provider with regard to user comments, without taking into consideration its obligation as a media company to exercise due diligence when disclosing sensitive data. The Supreme Court’s view notwithstanding, the forum operated by the applicant company had been developed through significant investment and deployment of personnel, and had to be considered as one where some kind of action or review would be undertaken by specially trained employees (see paragraph 25 above), and where the right to editorial confidentiality was therefore legitimate. 57. Lastly, the Supreme Court had not considered the particular circumstances of users’ comments, such as whether the person affected by the posting in question was a public figure or whether a comment had been posted in the course of a political discussion. It had not carried out an appropriate balancing test as required by the Court’s case-law. (b) The Government 58. The Government stated that in the absence of a sufficient connection between the publication of the comments and the applicant company’s journalistic activities, the applicant company could not in the present case invoke its right to editorial confidentiality. The fact that a host provider filtered comments through a software program on the basis of keywords and subsequently manually reviewed those comments did not mean that the host provider’s activities were journalistic in nature, and nor did the fact that a review was conducted after the publication of such comments. The applicant company’s role as a host provider offering a discussion forum on its website differed from its role as a publisher of articles. As a publisher, the applicant company had to take full responsibility for its articles. As a host provider, on the other hand, it enjoyed the exemption from liability enshrined in section 16 of the E-Commerce Act (see paragraph 36 above). To counterbalance that privilege, the applicant company, as a host provider, had a duty to disclose certain data to persons who made credible an overriding legal interest. The aim of that duty was to enable persons whose rights had been violated (as a result of unlawful activity or information originating from a user unknown to them) to prosecute the offender. The applicant company could not at the same time invoke both the exemption of liability granted to host providers and the safeguards afforded to publishers with regard to their sources. 59. Moreover, the Supreme Court’s decision had not restricted the applicant company’s right to receive and impart information. The Supreme Court had not required the applicant company to delete the comments nor to pay compensation, and nor had it taken a final decision on the lawfulness of those comments. 60. Even assuming that there had been an interference with the applicant company’s rights under Article 10, that interference had been provided for by law and had been proportionate. The legal framework applied by the Supreme Court had struck a fair balance between opposing points of view and interests in respect of the question of fundamental rights and had fallen within the wide margin of appreciation afforded by the Court in this field. As a positive obligation under Article 8 of the Convention, the State had to provide instruments enabling an individual to effectively combat defamation and personal violations by other private persons. 61. Experience had shown that users’ anonymity on the Internet was often abused to defame individuals or to disseminate hatred. Such behaviour did not contribute to a meaningful public debate. It was rather a hindrance to it. Users’ anonymity contributed considerably to an “online disinhibition effect” which could deter other users who valued respectful communication. It had to be ensured that the legitimate interest in anonymity did not eventually reduce the pluralism of opinions and thus restrict freedom of expression. The third-party intervener 62. The Media Legal Defence Initiative (a non-governmental organisation based in the United Kingdom that provides legal support to journalists, bloggers and independent media) submitted that anonymity was of crucial importance to the right to freedom of expression online as people’s willingness to engage in debate on controversial subjects in the public sphere had always been linked to the possibility of doing so anonymously. The disclosure of journalistic sources and surveillance could have negative consequences for the right to freedom of expression, given a breach of the right to confidentiality of an individual in respect of his or her communications. The same applied to cases concerning the disclosure of anonymous user data. The Court’s assessment (a) Existence of an interference 63. The Government disputed that the applicant company’s right to enjoy freedom of the press, as guaranteed under Article 10 of the Convention, had been interfered with by the domestic courts’ decisions (see paragraphs 58–59 above). The Court will first examine whether there was in fact such an interference – either in the light of the need to protect journalistic sources or on other grounds. (i) General principles 64. The fundamental principles concerning freedom of expression and the protection of journalistic sources are well-established in the Court’s case-law (see Sanoma Uitgevers B.V. v. the Netherlands [GC], no. 38224/03, §§ 50 and 51, 14 September 2010; and Goodwin v. the United Kingdom, 27 March 1996, § 39, Reports of Judgments and Decisions 1996 ‑ II). 65. Regarding journalistic sources, the Court’s understanding of the concept of a journalistic “source” is “any person who provides information to a journalist”; it understands the term “information identifying a source” to include, in so far as they are likely to lead to the identification of a source, both “the factual circumstances of acquiring information from a source by a journalist” and “the unpublished content of the information provided by a source to a journalist” (see Telegraaf Media Nederland Landelijke Media B.V. and Others v. the Netherlands, no. 39315/06, § 86, 22 November 2012, and the cases cited therein). 66. In the case of Schweizerische Radio- und Fernsehgesellschaft and Others v. Switzerland ((dec.) no. 68995/13, § 71, 12 November 2019) the Court has provided an overview of its case-law regarding situations that are considered to constitute an interference with the right to freedom of expression under Article 10 of the Convention. Among other factors, a conviction or an order to pay damages in a situation that can have a limiting impact on the enjoyment of freedom of expression is seen to constitute an interference (ibid.). In Nordisk Film & TV A/S v. Denmark ((dec.), no. 40485/02, ECHR 2005 ‑ XIII) the Court held that the decision of the Danish Supreme Court to compel the applicant company to hand over unedited footage which could not be regarded as sources of journalistic information nevertheless constituted an interference within the meaning of Article 10 § 1 of the Convention. It found however that the degree of protection under Article 10 to be applied in that situation could not reach the same level as that afforded to journalists when it came to their right to keep their sources confidential. 67. The Court has previously ruled on cases concerning the liability of providers of online debate forums on which users had posted comments. In none of those cases was the interference with the rights of the provider under Article 10 called into question (see Delfi AS v. Estonia [GC], no. 64569/09, § 118, ECHR 2015; and Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt v. Hungary, no. 22947/13, § 45, 2 February 2016). In Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt (§ 61), the Court explicitly stated that the second applicant in that case, as a large news portal, provided a forum for the exercise of freedom of expression, thus enabling the public to impart information and ideas. Accordingly, the Court concluded that the second applicant’s conduct had to be assessed in the light of the principles applicable to the press. (ii) Application of the above principles to the present case 68. The Court notes at the outset that the instant case does not concern the liability as such of the applicant company but its duty as a host provider to disclose user data in certain circumstances, under section 18 of the E ‑ Commerce Act (see paragraph 37 above), despite its role as an editor of journalistic work. In this role, it runs a news portal which carries discussion forums and allows users to post comments relating to articles published by the applicant company (see paragraph 5 above). It thus uses these forums to participate in the dissemination of ideas with regard to topics of public interest (see paragraphs 73 and 78 below). The comments at issue in the instant case referred to two articles published by the applicant company (see paragraphs 13 and 18 above). 69. In this regard, during the domestic proceedings the applicant company relied on the argument that the authors of the comments in question constituted journalistic sources and that their identities were therefore protected. The domestic courts, on the other hand, concluded that owing to the fact that no kind of journalistic activity was involved, the applicant company could not invoke editorial confidentiality with respect to the user comments. In the Government’s view, the applicant company could not at the same time invoke both the exemption of liability granted to host providers and the safeguards afforded to publishers with regard to their sources (see paragraph 58 above). According to the Government, there had in any event been no interference with the right to receive and impart information, as the applicant company had not been held liable, and nor had it been obliged to delete any content (see paragraph 59 above). 70. The Court’s understanding of a journalistic “source” (see paragraph 65 above) is in line with the Recommendation on the right of journalists not to disclose their sources of information (which was adopted by the Committee of Ministers of the Council of Europe) and the definitions given in the Appendix thereto (cited in Sanoma Uitgevers B.V. v. the Netherlands [GC], no. 38224/03, § 44, 14 September 2010). According to the definitions set out in this Appendix, the term “information” means any statement of fact, opinion or idea in the form of text, sound and/or picture (ibid.). 71. In the instant case, the Court concludes that the comments posted on the forum by readers of the news portal, while constituting opinions and therefore information in the sense of the Recommendation, were clearly addressed to the public rather than to a journalist. This is sufficient for the Court to conclude that the comments’ authors could not be considered a source to a journalist. The Court therefore agrees with the Government that the applicant company could not rely on editorial confidentiality in the instant case. However, an interference with Article 10 may also occur in ways other than by ordering the disclosure of a journalistic source (see paragraph 66 above). 72. In the cases of Delfi AS and Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt it was undisputed that the liability of providers of online debate forums interfered with their rights under Article 10 (see paragraph 67 above). In Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt (§ 25), the Hungarian Constitutional Court had applied the principles of freedom of the press to the applicants. The Court shared this view (see paragraph 67 above). The Court does not overlook the fact that in the case of Delfi AS it accepted the domestic courts’ classification of the applicant as a publisher (ibid., § 128), whereas in the instant case the domestic courts considered, in respect of the comments at issue, the applicant company to be a host provider (see paragraphs 24 and 30 above). However, whether there may be an interference with Article 10 cannot depend on the legal categorisation of a provider by the domestic courts. Rather, the Court finds that it must take into account the circumstances of the case as a whole. 73. While the Court accepts that the applicant company acted as a host provider with regard to the publication of the comments at issue, this was only one of its roles as a media company. It publishes a daily newspaper (and an online version thereof) and maintains a news portal on which it initiates conversations regarding its articles by inviting users to post comments (see paragraph 5 above). It does not only provide a forum for users but takes an active role in guiding them to write comments, describing those comments as an essential and valuable part of the news portal (see paragraph 7 above). User-generated content on the applicant company’s portal is at least partly moderated (see paragraphs 8-12 above). The Court finds that these activities are closely interlinked. This is supported by the fact that there is no separate editorial office for the portal, which is described as a platform for dialogue as a whole – including both articles and discussions on those articles (see paragraphs 5 and 7 above). It is thus apparent that the applicant company’s overall function is to further open discussion and to disseminate ideas with regard to topics of public interest, as protected by freedom of the press (see paragraph 68 above). 74. In the light of the Declaration on freedom of communication on the Internet adopted by the Committee of Ministers of the Council of Europe (see Delfi AS, cited above, § 44), which emphasises the principle of anonymity for Internet users in order to enhance the free expression of opinions, information and ideas (see also the UN Special Rapporteur’s report cited above in paragraph 46), the Court has no doubt that an obligation to disclose the data of authors of online comments could deter them from contributing to debate and therefore lead to a chilling effect among users posting in forums in general. This affects, indirectly, also the applicant company’s right as a media company to freedom of press. It invites users to comment on its articles in order to further discussion on its journalistic work (see paragraphs 5 and 65 above). To achieve this goal, it allows authors of comments to use usernames (see paragraph 7 above); upon registration, users are informed that their data will not be seen publicly and will only be disclosed if required by law (see paragraphs 6 and 7 above). The forums’ rules dictate that certain content is not accepted, and that comments are screened by a keyword system, may be subject to a manual review and will be deleted if they are not in line with the rules (see paragraphs 7-12 above). 75. The Court does not lose sight of the ease, scope and speed of the dissemination of information on the Internet, and the persistence of such information once disclosed, which may considerably aggravate the effects of unlawful speech compared to traditional media (see Delfi, cited above, § 147). It therefore agrees with the Government (see paragraph 61 above) that the Convention does not provide for an absolute right to anonymity on the Internet. 76. At the same time, the Court is mindful of the interest of Internet users in not disclosing their identity. Anonymity has long been a means of avoiding reprisals or unwanted attention. As such, it is capable of promoting the free flow of opinions, ideas and information in an important manner, including, notably, on the Internet (see Delfi, cited above, § 147). Thus, it can indirectly also serve the interests of a media company (see paragraph 74 above). 77. 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. A service provider may also allow an extensive degree of anonymity for its users, in which case 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 (see Delfi, cited above, § 148). 78. In the instant case, the applicant company, as a media company, awards its users a certain degree of anonymity not only in order to protect its freedom of the press but also to protect users’ private sphere and freedom of expression – rights all protected by Articles 8 and 10 of the Convention (see paragraphs 68 and 73 above). The Court observes that this anonymity would not be effective if the applicant company could not defend it by its own means. It would be difficult for users to defend their anonymity themselves should their identities have been disclosed to the civil courts. 79. The Government’s argument that no final decision on the lawfulness of the comments has been taken (see paragraph 59 in fine above) does not change the evaluation, as the interference lies in the lifting of anonymity and the effects thereof, irrespective of the outcome of any subsequent proceedings. Such an interference with the media company’s rights will weigh less heavily than the interference in a case in which the media company is held liable for the content of a particular comment by being fined or obliged to delete it. The weight of a given interference is however a matter to be examined in a proportionality test when balancing the interests at stake (see paragraphs 92-95 below). 80. The Court therefore finds that the domestic courts’ orders in the two sets of proceedings to disclose the requested user data constituted an interference with the applicant company’s right to enjoy freedom of the press under Article 10 § 1 of the Convention. Such interference will be incompatible with Article 10 § 2 of the Convention unless it is “prescribed by law”, pursues one or more legitimate aims and is “necessary in a democratic society” in order to achieve the aim concerned. (b) Lawfulness and legitimate aim 81. It was not disputed between the parties that the interference was prescribed by law (namely, by section 18(4) of the E-Commerce Act – see paragraph 37 above), nor that it served a legitimate aim (namely, the protection of the reputation and rights of others). (c) Necessary in a democratic society 82. It remains to be determined whether the impugned interference was “necessary in a democratic society”. (i) General principles 83. Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to information or ideas that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness without which there is no “democratic society”. As enshrined in Article 10, freedom of expression is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly (see, for example, Couderc and Hachette Filipacchi Associés v. France [GC], no. 40454/07, § 88, ECHR 2015 (extracts) and the cases cited therein). 84. The relevant principles concerning the balancing of interests when examining an interference with freedom of expression have been summarised as follows (see Delfi AS, cited above, §§ 138 and 139): “138. When examining whether there is a need for an interference with freedom of expression in a democratic society in the interests of the “protection of the reputation or rights of others”, the Court may be required to ascertain whether the domestic authorities have struck a fair balance when protecting two values guaranteed by the Convention which may come into conflict with each other in certain cases, namely on the one hand freedom of expression protected by Article 10, and on the other he right to respect for private life enshrined in Article 8 (see Hachette Filipacchi Associés v. France, no. 71111/01, § 43, 14 June 2007; MGN Limited v. the United Kingdom, no. 39401/04, § 142, 18 January 2011; and Axel Springer AG [ v. Germany [GC], no. 39954/08,] § 84[, 7 February 2012]). 139. The Court has found that, as a matter of principle, the rights guaranteed under Articles 8 and 10 deserve equal respect, and the outcome of an application should not vary according to whether it has been lodged with the Court under Article 10 of the Convention by the publisher of an offending article or under Article 8 of the Convention by the person who has been the subject of that article. Accordingly, the margin of appreciation should in principle be the same in both cases (see Axel Springer AG, cited above, § 87, and Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 106, ECHR 2012, with further references to Hachette Filipacchi Associés ( ICI PARIS ), no. 12268/03, § 41, 23 July 2009; Timciuc v. Romania (dec.), no. 28999/03, § 144, 12 October 2010; and Mosley v. the United Kingdom, no. 48009/08, § 111, 10 May 2011). Where the balancing exercise between those two rights has been undertaken by the national authorities in conformity with the criteria laid down in the Court’s case-law, the Court would require strong reasons to substitute its view for that of the domestic courts (see Axel Springer AG, cited above, § 88, and Von Hannover (no. 2), cited above, § 107, with further references to MGN Limited, cited above, §§ 150 and 155, and Palomo Sánchez and Others v. Spain [GC], nos. 28955/06, 28957/06, 28959/06 and 28964/06, § 57, ECHR 2011). In other words, there will usually be a wide margin afforded by the Court if the State is required to strike a balance between competing private interests or competing Convention rights (see Evans v. the United Kingdom [GC], no. 6339/05, § 77, ECHR 2007 ‑ I; Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 113, ECHR 1999 ‑ III; and Ashby Donald and Others v. France, no. 36769/08, § 40, 10 January 2013).” 85. The Court has identified a number of relevant criteria that must guide its assessment when balancing Article 8 and Article 10, of which particularly pertinent to the present case are: whether a contribution is made to a debate of public interest; the subject of the report in question; the prior conduct of the person concerned and how well he or she is known; the content, form and consequences of the publication in question; and the gravity of the penalty imposed on the journalists or publishers (see Von Hannover v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, §§ 109 to 113, ECHR 2012; and Axel Springer AG v. Germany [GC], no. 39954/08, §§ 90 to 95, 7 February 2012). 86. In this regard, the Court reiterates, that there is little scope under Article 10 § 2 of the Convention for restrictions on political speech or on debate on matters of public interest (see, for example, Ceylan v. Turkey [GC], no. 23556/94, § 34, ECHR 1999 ‑ IV; Wingrove v. the United Kingdom, 25 November 1996, § 58, Reports of Judgments and Decisions 1996 ‑ V; and, more recently, Couderc and Hachette Filipacchi Associés, cited above, § 96). 87. As to the limits of acceptable criticism, the Court has repeatedly held that freedom of the press affords the public one of the best means of discovering and forming an opinion on the ideas and attitudes of political leaders. The limits of acceptable criticism are accordingly wider in respect of a politician than in respect of 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, especially when he himself makes public statements that are susceptible of criticism (see, for example, Oberschlick v. Austria (no. 1), 23 May 1991, §§ 58-59, Series A no. 204; Lingens v. Austria, 8 July 1986, § 42, Series A no. 103; and, more recently, Couderc and Hachette Filipacchi Associés, cited above, § 121). 88. Moreover, the Court has clearly stated that speech that is incompatible with the values proclaimed and guaranteed by the Convention is not protected by Article 10, by virtue of Article 17 of the Convention. The examples of such speech examined by the Court have included statements denying the Holocaust, justifying a pro-Nazi policy, linking all Muslims with a grave act of terrorism, or portraying the Jews as the source of evil in Russia (see Delfi AS, cited above, § 136 and the cases cited therein). (ii) Application of those principles to the present case 89. The instant case concerns the applicant company’s duty as a host provider to disclose personal data of its users, not its own civil (or criminal) liability for the users’ comments (see paragraph 68 above; compare and contrast Delfi, cited above, § 128). Moreover, the comments made about the plaintiffs (see paragraphs 14, 15 and 19 above) although offensive and lacking in respect, did not amount to hate speech or incitement to violence (see the case-law quoted in paragraph 88 above), nor were they otherwise clearly unlawful (compare and contrast Delfi, cited above, § 128). 90. The comments in question concerned two politicians and a political party, respectively, and were expressed in the context of a public debate on issues of legitimate public interest, namely the conduct of those politicians acting in their public capacities and their own comments published on the same news portal (see paragraphs 13 and 18 above). 91. Although anonymity on the Internet is an important value (see paragraphs 76-78 above), the Court is aware that it 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 (see K.U. v. Finland, no. 2872/02, § 49, ECHR 2008). 92. The importance of a sufficient balancing of interests arises from this awareness, in particular if political speech and debates of public interest are concerned. This issue is not only reflected in the Court’s longstanding case-law (see paragraphs 86-87 above), but also in the above mentioned international-law material concerning Internet intermediaries: the relevant documents of the Council of Europe and the United Nations Human Rights Council state that requests for the disclosure of user data must be necessary and proportionate to the legitimate aim pursued (see paragraphs 45-48 above). As the Government has pointed out (see paragraph 60 above), a potential victim of a defamatory statement must be awarded effective access to a court in order to assert his or her claims before that court. In the Court’s view this means that the domestic courts will have to examine the alleged claim and weigh – in accordance with their positive obligations under Articles 8 and 10 of the Convention – the conflicting interests at stake, before deciding whether the data relating to the author’s identity are to be disclosed. In the instant case, those conflicting interests do not only comprise the plaintiffs’ right to protect their reputation and the applicant company’s right to freedom of press, but also its role in protecting the personal data of the comment’s authors and the freedom to express their opinions publicly (see paragraph 78 above). 93. The Court agrees with the appeal courts that the comments in questions could be understood as seriously offensive. However, while the first-instance courts in both sets of proceedings did conduct a balancing test (see paragraphs 24 and 30 above), the appeal courts and the Supreme Court did not give any reasons why the plaintiffs’ interests in the disclosure of the data were “overriding” the applicant company’s interests in protecting their authors’ anonymity. This is of particular concern in a case like the present one where the comments could be characterised as political speech that could not be considered as being clearly illegal. Referring to the Supreme Court’s case-law they only argued that the balancing of interests was not a matter to be examined in proceedings against the relevant service provider, but rather should be carried out during proceedings against the author of the allegedly defamatory comments. According to the appeal courts and the Supreme Court, it was sufficient that “a layperson was capable of perceiving that a finding of liability under Article 1330 of the Civil Code could not be ruled out”. If that was the case, the person concerned would have an overriding interest in the disclosure of the user data (see paragraphs 25-26, 27, 31-32 and 39 above). They thus concluded directly from the refusal of editorial confidentiality, the comments’ offensive nature and the requirement that a finding of liability could not be ruled out to the applicant company’s duty to disclose the data. 94. The Court finds that the Supreme Court’s case-law does not preclude a balancing of interests. In fact, this case-law would have provided for a certain balancing between the opposing interests in respect of fundamental rights when requiring an assessment whether a finding of liability under Article 1330 of the Civil Code could not be ruled out. This applied all the more to the instant case, as it was obvious that the comments at issue were part of a political debate. However, the appeal courts and the Supreme Courts did not base their assessment on any balancing between the interests of the authors of the particular comments and of the applicant company to protect those authors, respectively, on the one side, and the interests of the plaintiffs concerned on the other side. 95. As stated above (see paragraphs 68 and 89), the Court does not overlook that the instant case did not concern the applicant company’s liability for the comments (by contrast, see Delfi AS, cited above, § 142; and Magyar Tartalomszolgáltatók Egyesülete and Index.hu Zrt, cited above, § 71). In this regard, the Court accepts that for a balancing exercise in proceedings concerning the disclosure of user data, a prima facie examination may suffice (see paragraph 66 above). In fact, section 18(4) of the E-Commerce Act (see paragraph 37 above) allows for the establishment of prima facie evidence. This was not disputed by the Government (see paragraph 58 above). Furthermore, the courts enjoy a certain margin of appreciation, even if it is narrow when political speech is concerned (see paragraph 86 above). However, even a prima facie examination requires some reasoning and balancing. In the instant case, the lack of any balancing between the opposing interests (see paragraph 94 above) overlooks the function of anonymity as a means of avoiding reprisals or unwanted attention and thus the role of anonymity in promoting the free flow of opinions, ideas and information, in particular if political speech is concerned which is not hate speech or otherwise clearly unlawful. In view of the fact that no visible weight was given to these aspects, the Court cannot agree with the Government’s submission that the Supreme Court struck a fair balance between opposing interests in respect of the question of fundamental rights (see paragraph 60 above). 96. The Court finds that in the absence of any balancing of those interests the decisions of the appeal courts and of the Supreme Court were not supported by relevant and sufficient reasons to justify the interference. It follows that the interference was not in fact “necessary in a democratic society”, within the meaning of Article 10 § 2 of the Convention. 97. There has accordingly been a violation of Article 10 of the Convention. APPLICATION OF ARTICLE 41 OF THE CONVENTION 98. 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 99. The applicant company claimed a total amount of 17,882.38 euros (EUR) in respect of pecuniary damage. This sum is composed of EUR 12,254.80 for the costs of legal representation (including VAT) and court fees, which it had to pay to K.S. and FPK in the first set of proceedings, and EUR 5,627.58 for the costs of legal representation (including VAT) and court fees, which it had to pay to H.K. in the second set of proceedings. 100. The Government did not contest this claim. 101. The applicant company also claimed EUR 6,000 in respect of non ‑ pecuniary damage. 102. The Government contested this claim, arguing that the applicant company had failed to set out the basis of its calculation and that the finding of a violation of a Convention right often constituted in itself sufficient reparation. 103. The Court reiterates that it cannot speculate what the outcome of the proceedings would be if they were in conformity with the requirements of Article 6 § 1 of the Convention (see Osinger v. Austria, no. 54645/00, § 57, 24 March 2005 and the references cited therein). The same applies in the instant case in which a procedural violation of Article 10 is found (see paragraph 96 above). Accordingly, the Court dismisses the applicant company’s claim for pecuniary damage. As regards the claim for non ‑ pecuniary damage, the Court finds that given the circumstances of the present case the finding of a violation constitutes in itself sufficient just satisfaction for any non-pecuniary damage the applicant company may have sustained (see, for example and mutatis mutandis, Vereinigung Bildender Künstler v. Austria, no. 68354/01, § 44, 25 January 2007). Costs and expenses 104. The applicant company claimed EUR 22,780.96 for the costs and expenses incurred before the domestic courts and EUR 4,894 for those incurred before the Court. These sums include VAT. 105. The Government considered these claims excessive and disputed the assertion that the procedural steps taken by the applicant company had been effective. The applicant company could not claim more than it would have been awarded had it been successful in the domestic proceedings. As regards the costs of the proceedings before the Court the Government argued that the applicant company had been able to rely in part on the written submissions presented in the domestic proceedings when preparing the submissions to the Court. 106. 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 (see Associated Society of Locomotive Engineers and Firemen (ASLEF) v. the United Kingdom, no. 11002/05, § 58, 27 February 2007, and the cases cited therein). 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 15,000 for costs and expenses incurred in the domestic proceedings and EUR 2,000 for the proceedings before the Court, plus any tax that may be chargeable to the applicant company. 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 10 (freedom of expression) of the Convention, finding |
830 | In the context of terrorism and national security considerations | RELEVANT LEGAL FRAMEWORK and practice Legal frameworkRussian Citizenship Act (no. 62-FZ of 31 May 2002 Russian Citizenship Act (no. 62-FZ of 31 May 2002 Russian Citizenship Act (no. 62-FZ of 31 May 2002 33. Section 22 of the Act in its relevant part reads as follows: “1. A decision granting Russian citizenship ... shall be annulled if it is established that it has been taken on the basis of falsified documents or false information knowingly submitted by the applicant, or if the applicant refuses to take the oath. 2. The submission of falsified documents or knowingly false information must be established by a court...” Regulation on the Examination of Issues Related to Citizenship of the Russian Federation (adopted by Presidential Decree no. 1325 of 14 November 2002) 34. Section 54 of the Regulation, as in force at the material time, specified the procedure for annulment of a decision on Russian citizenship. The relevant part it reads as follows: “... The form of the annulment decision ( заключение об отмене решения по вопросам гражданства Российской Федерации ) shall comply with the form approved by the Ministry of the Interior of the Russian Federation or by the Ministry of Foreign Affairs of the Russian Federation. It must contain information about the legal basis for the [impugned decision on Russian citizenship]; information about the court ’ s decision establishing a legal fact of the use of falsified documents or false information knowingly submitted by the applicant to acquire or terminate his or her Russian citizenship; a description of the circumstances established by a court; and reference to the relevant section of the Russian Citizenship Act which serves as a legal basis for the annulment of a previously taken decision on Russian citizenship.” 35. Presidential Decree no. 398 of 17 June 2020 amended section 54 of the Regulation. It provided that a decision to annul citizenship had to be reasoned and had to describe the circumstances which had been taken into consideration by the competent authority. The relevant part of the amended provision in its relevant part reads as follows: “... [The annulment decision] ... shall be reasoned. It must contain information about the legal basis for the [impugned decision on Russian citizenship], as well as information about a legal basis for the annulment of the decision on Russian citizenship accompanied by a description of the circumstances which led to its adoption.” Other material 36. For a summary of domestic provisions concerning residence permits for foreign nationals, administrative removal of foreign nationals and refusal of entry into Russian Federation see Liu v. Russia (no. 2) ( no. 29157/09, §§ 45-52, 26 July 2011 ). For a summary of domestic provisions regarding Russian citizenship, Russian passports, the Federal Migration Service and administrative liability for certain offences see Alpeyeva and Dzhalagoniya v. Russia (nos. 7549/09 and 33330/11, §§ 56, 59, 62-64 and 70-72, 12 June 2018 ). Practice by the Russian Constitutional Court 37. In its inadmissibility decision of 21 April 2011 (no. 554-O-O) the Constitutional Court dismissed a complaint lodged by a person, who claimed that section 22 of the Russian Citizenship Act was incompatible with the Russian Constitution. The court concluded that the impugned provision was not arbitrary because it was only applicable in cases where individuals did not satisfy the conditions required for obtaining Russian citizenship. 38. On 25 October 2016 the Constitutional Court by other inadmissibility decision dismissed a similar complaint lodged by a person, who was stripped of Russian citizenship for failing to mention his two minor children in his application for Russian citizenship. The court repeated the arguments used in its decision of 21 April 2011. 39. On 15 January, 12 and 28 February 2019 the Constitutional Court in the same manner dismissed several more similar complaints, including that of the applicant (see paragraphs 18 and 19 above). In addition to its previous reasoning, the court stated that the competent authorities should take into account surrounding circumstances, such as the time elapsed since the decision granting Russian citizenship for their decision to comply with the requirements of necessary and proportionate interference with human rights. Council of Europe documentsThe European Convention on Nationality The European Convention on Nationality The European Convention on Nationality 40. The principal Council of Europe document concerning nationality is the European Convention on Nationality (ETS No. 166), which was adopted on 6 November 1997 and came into force on 1 March 2000. It has been ratified by twenty-one member States of the Council of Europe. Russia signed this Convention on 6 November 1997 but has not ratified it. 41. Article 7 of that Convention (“Loss of nationality ex lege or at the initiative of a State Party”) in the relevant part read as follows: “1. A State Party may not provide in its internal law for the loss of its nationality ex lege or at the initiative of the State Party except in the following cases: ... b) acquisition of the nationality of the State Party by means of fraudulent conduct, false information or concealment of any relevant fact attributable to the applicant; ...” Explanatory Report to the European Convention on Nationality 42. The Explanatory report to the European Convention on Nationality in the relevant part reads as follows: “58. Article 7 consists of an exhaustive list of cases where nationality may be lost automatically by operation of law ( ex lege ) or at the initiative of a State Party. In these limited cases, and subject to certain conditions, a State Party may withdraw its nationality. The provision is formulated in a negative way in order to emphasise that the automatic loss of nationality or a loss of nationality at the initiative of a State Party cannot take place unless it concerns one of the cases provided for under this article. However, a State Party may allow persons to retain its nationality even in such cases. Article 7 does not refer to cases in which there have been administrative errors which are not considered in the country in question to constitute cases of loss of nationality. ... 61. Fraudulent conduct, false information or concealment of any relevant fact has to be the result of a deliberate act or omission by the applicant which was a significant factor in the acquisition of nationality. For example, if a person acquires the nationality of the State Party on condition that the nationality of origin would subsequently be renounced and the person voluntarily did not do so, the State Party would be entitled to provide for the loss of its nationality. Moreover, for the purpose of this Convention, “concealment of any relevant fact” means concealment of a relevant condition which would prevent the acquisition of nationality by the person concerned (such as bigamy). “Relevant” in this context refers to facts (such as concealment of another nationality, or concealment of a conviction for a serious offence) which, had they been known before the nationality was granted, would have resulted in a decision refusing to grant such nationality. 62. The wording of this sub-paragraph is also intended to cover the acquisition of nationality by false pretences (false or incomplete information or other deceitful action, notably by means of non-authentic or untrue certificates), threats, bribery and other similar dishonest actions. 63 In cases where the acquisition of nationality has been the result of the improper conduct specified in sub-paragraph b, States are free either to revoke the nationality (loss) or to consider that the person never acquired their nationality (void ab initio).” THE LAW ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 43. The applicant complained that the decisions to annul his Russian citizenship and remove him from Russian territory had amounted to a 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.” Admissibility 44. The parties did not comment on the admissibility of the complaint. 45. The Court notes that it is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. Merits The parties ’ submissions (a) The Applicant 46. The applicant stated that the domestic law was unforeseeable in its application, because it did not provide for the annulment of a decision on citizenship for submitting incomplete information. That measure could only be applied if the information submitted was knowingly false. 47. He also stated that the interference with his rights had not been necessary in a democratic society owing to the authorities ’ failure to duly take into account his family situation or explain their finding that he posed a threat to national security. (b) The Government 48. The Government submitted that there had been an interference with the applicant ’ s rights under Article 8 of the Convention, which had fully satisfied the requirements of its second paragraph. It had pursued the legitimate aim of guaranteeing national security; it had been lawful and proportionate to that aim. 49. According to the Government, the “quality of law” requirement had not been breached in the present case. The applicable domestic law stipulated a person ’ s duty to provide exhaustive information related to his application for Russian citizenship in a clear and foreseeable manner. The legislative rules did not provide the authorities with any discretion prescribing that in such a situation citizenship had to be annulled in any event. 50. Furthermore, the Government stated that the applicant ’ s refusal to leave Russia of his own initiative had shown his lack of respect for Russian law. That fact, together with the threat which he posed to national security, warranted the necessity for his removal from Russia. The reasons underlying the applicant ’ s entry ban had been carefully examined by the domestic courts in adversarial proceedings. 51. Lastly, the Government submitted that applicant ’ s family situation and his ties with Russia and Tajikistan had been duly taken into account and assessed by the domestic courts in the proceedings concerning his administrative removal. The Court ’ s assessmentGeneral principles General principles General principles 52. The Court reiterates that the notion of “private life” within the meaning of Article 8 of the Convention is a broad concept which encompasses, inter alia, 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 Bensaid v. the United Kingdom, no. 44599/98, § 47, ECHR 2001 ‑ I ) and the right to self ‑ determination (see Pretty v. the United Kingdom, no. 2346/02, § 61, ECHR 2002 ‑ III ). 53. In the case of Ramadan v. Malta, (no. 76136/12, § 84, 21 June 2016) the Court held that although the right to citizenship is not as such guaranteed by the Convention or its Protocols, it cannot be ruled out that an arbitrary denial of citizenship might in certain circumstances raise an issue under Article 8 of the Convention because of the impact of such a denial on the private life of the individual. To establish whether “an issue” arose under Article 8 of the Convention the Court assessed whether the revocation of the citizenship was “arbitrary” and the “consequences” of revocation for the applicant (see §§ 85, 90 and 91 ibid). In the case of K2 v. the United Kingdom (( dec. ), no. 42387/13, §§ 52-64 7 February 2017), which followed, the Court accepted that the revocation of citizenship amounted to an interference and applied the two-steps test to determine whether there has been a breach of Article 8 of the Convention. Subsequently, in the case of Alpeyeva and Dzhalagoniya (cited above, §§ 110 ‑ 27) the Court firstly applied the “consequences” criteria to determine if there had been an interference with the applicant ’ s rights and then used the “arbitrariness” test to determine if there had been a breach of Article 8 of the Convention. That approach was confirmed in the case of Ahmadov v. Azerbaijan (no. 32538/10, §§ 46-55, 30 January 2020). In the case of Ghoumid and Others v. France (no. 52273/16 and 4 others, §§ 43-44, 25 June 2020) the Court held that nationality is an element of a person ’ s identity. To establish whether there had been a violation of Article 8 of the Convention the Court examined as to whether the revocation of the applicant ’ s nationality had been arbitrary. Then, it assessed the consequences of that measure for the applicant. 54. In determining arbitrariness, the Court should examine whether the impugned measure was in accordance with the law; whether it was accompanied by the necessary procedural safeguards, including whether the person deprived of citizenship was allowed the opportunity to challenge the decision before courts affording the relevant guarantees; and whether the authorities acted diligently and swiftly (see Ramadan, cited above, §§ 86 ‑ 89; K2, cited above, § 50; Alpeyeva and Dzhalagoniya, cited above, § 109; and Ahmadov, cited above, § 44). 55. The Court also reiterates that the States are entitled to control the entry and residence of aliens on their territories (see, among many other authorities, Abdulaziz, Cabales and Balkandali v. the United Kingdom, § 67, 28 May 1985, Series A no. 94, and Boujlifa v. France, 21 October 1997, § 42, Reports of Judgments and Decisions 1997-VI). The Convention does not guarantee the right of an alien to enter or to reside in a particular country and, in pursuance of their task of maintaining public order, Contracting States have the power to expel, for example, an alien convicted of criminal offences. However, their decisions in this field must, in so far as they may interfere with a right protected under paragraph 1 of Article 8, be in accordance with the law, pursue the legitimate aim and be necessary in a democratic society (see Slivenko v. Latvia [GC], no. 48321/99, § 113, ECHR 2003-X; Üner v. the Netherlands [GC], no. 46410/99, § 54, ECHR 2006‑XII; De Souza Ribeiro v. France [GC], no. 22689/07, § 77, ECHR 2012; Mehemi v. France, 26 September 1997, § 34, Reports 1997-VI; Dalia v. France, 19 February 1998, § 52, Reports 1998-I; and Boultif v. Switzerland, no. 54273/00, § 46, ECHR 2001 ‑ IX ). 56. Where immigration is concerned, Article 8 cannot be considered as imposing a general obligation on a State to respect the choice of married couples of the country of their matrimonial residence and to authorise family reunion on its territory (see Gül v. Switzerland, 19 February 1996, § 38, Reports 1996 ‑ I). However, the removal of a person from a country where close family members are living may amount to an infringement of the right to respect for family life, as guaranteed by Article 8 § 1 of the Convention (see Boultif, cited above, § 39). Where children are involved, their best interests must be taken into account and national decision-making bodies have a duty to assess evidence in respect of the practicality, feasibility and proportionality of any removal of a non-national parent in order to give effective protection and sufficient weight to the best interests of the children directly affected by it (see Jeunesse v. the Netherlands [GC], no. 12738/10, § 109, 3 October 2014, and Zezev v. Russia, no. 47781/10, § 34, 12 June 2018 ). Application of the general principles 57. Since the annulment of the applicant ’ s Russian citizenship did not automatically result in the decision to forcibly remove him from Russian territory, and since those issues were examined within separate sets of proceedings, the Court will examine those issues also separately. (a) Annulment of citizenship 58. Having noted the existence of various approaches to the examination of the issue (see paragraph 53 above), the Court will follow the consequence-based approach in determining whether the annulment of the applicant ’ s citizenship constituted an interference with his rights under Article 8 of the Convention (see, mutatis mutandis, Denisov v. Ukraine [GC], no. 76639/11, §§ 107-09 and 118-34, 25 September 2018). It will examine: ( i ) what the consequences of the impugned measure were for the applicant and then (ii) whether the measure in question was arbitrary (the same methodology was used in the recent case of Ahmadov (cited above, § 43, 46 and 54)). (i) Consequences for the applicant 59. Firstly, the decision to annul the applicant ’ s Russian citizenship deprived him of any legal status in Russia. 60. Secondly, he was left without any valid identity documents. In Smirnova v. Russia (nos. 46133/99 and 48183/99, § 97, ECHR 2003 ‑ IX (extracts)), the Court found that Russian citizens had to prove their identity unusually often in their everyday life, even when performing such mundane tasks as exchanging currency or buying train tickets, and that the internal passport was also required for more crucial needs, such as finding employment or receiving medical care. In Alpeyeva and Dzhalagoniya (cited above, §§ 70 and 114), the Court also noted that failure to possess a valid identity document was punishable by a fine under Article 19.15 of the CAO. The deprivation of passports in those cases had therefore amounted to interferences with the applicants ’ private lives. The annulment of the applicant ’ s passports in the instant case had the same effect. 61. Furthermore, the annulment of the applicant ’ s citizenship was a precondition for the imposition of the entry ban on him and the decision to remove him from Russian territory (see paragraphs 20 and 25 above) (contrast Ramadan v. Malta, cited above, §§ 20, 26, 87-89, 21 June 2016). 62. The annulment of the applicant ’ s Russian citizenship therefore amounted to an interference with the rights enshrined in Article 8. (ii) Whether the measure was arbitrary 63. In determining arbitrariness, the Court should examine whether the impugned measure was in accordance with the law; whether it was accompanied by the necessary procedural safeguards, including whether the person deprived of citizenship was allowed the opportunity to challenge the decision before courts affording the relevant guarantees; and whether the authorities acted diligently and swiftly (see Ramadan, cited above, §§ 86 ‑ 89; K2, cited above § 50; Alpeyeva and Dzhalagoniya, cited above, § 109; and Ahmadov, cited above, § 44; see paragraph 54 above). 64. The expression “in accordance with the law” requires that the measure should have some basis in domestic law; it also refers to the quality of the law in question, requiring that it should be accessible to the person concerned and foreseeable as to its effects (see Slivenko, cited above, § 100, and Kurić and Others v. Slovenia [GC], no. 26828/06, § 341, ECHR 2012 (extracts)). The law must indicate the scope of 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 (see Amann v. Switzerland [GC], no. 27798/95, ECHR 2000-II, §§ 55 and 56; Rotaru v. Romania [GC], no. 28341/95, ECHR 2000-V, §§ 55-63; Hasan and Chaush v. Bulgaria [GC], no. 30985/96, ECHR 2000-XI; and Al- Nashif v. Bulgaria, no. 50963/99, § 119, 20 June 2002). 65. Having regard to the above and to the general principles cited in paragraphs 53 - 54 above, the Court observes that the revocation or annulment of citizenship as such is not incompatible with the Convention. To assess whether Article 8 has been breached in the present case, the Court will examine the lawfulness of the impugned measure, accompanying procedural guarantees and the manner in which the domestic authorities acted. 66. The Court is ready to accept that the annulment of the applicant ’ s Russian citizenship had its basis in the provisions of the Russian Citizenship Act and the Regulation on the Examination of Issues Related to Citizenship of the Russian Federation (see paragraphs 33 and 34 above). The Court is not satisfied by the clarity of the relevant provisions, or by the procedural safeguards of the domestic law as in force at the material time. 67. The Court notes that to meet the requirements of the Convention, a law should be formulated in clear terms. If a person ’ s citizenship may be annulled or revoked for submitting false information or concealing information by that person, the law should specify the nature of that information (see the concept of “relevant facts” in the European Convention on Nationality and in the Explanatory Report to it cited in paragraphs 40 - 42 above; compare the Constitutional Court ’ s practice cited in paragraphs 37 ‑ 39 above). 68. Whilst conferring on the migration authorities the right to annul Russian citizenship, the Regulation on the Examination of Issues Related to Citizenship of the Russian Federation as in force at the material time (see paragraphs 33 and 34 above) did not require those authorities to give a reasoned decision specifying the factual grounds on which it had been taken, like the surrounding circumstances, such as the nature of the missing information, the reason for not submitting it to the authorities, the time elapsed since obtaining citizenship, the strength of the ties which the person concerned had with a country, his or her family situation or other important factors. Especially, they were not required to explain why the failure by the applicant to indicate the full number of his siblings had been relevant for obtaining Russian citizenship. It was not explained whether the migration authorities could have refused to grant the applicant Russian citizenship if the facts about his siblings had been known by them (compare the European Convention on Nationality and the Explanatory Report cited in paragraphs 40 - 42 above as well as the case-law of the Constitutional Court in paragraphs 37 ‑ 39 above). The migration authority and the District Court dismissed the applicant ’ s argument that the missing information was not important for obtaining Russian citizenship as irrelevant. That finding was not overruled by the Regional or Supreme Courts (see paragraph 16 above). 69. According to the Government, after it had been established that the information submitted by the applicant was incomplete, the authorities had no other choice but to annul the decision granting him Russian citizenship, irrespective of the time elapsed since the obtaining of citizenship, the strength of the ties which the person concerned had with Russia, his or her family situation or other important factors (see paragraph 49 above). It has not been shown that the national courts had to consider the aforementioned factors either in the proceedings “regarding the establishment of a legal fact” or in the proceedings concerning the annulment of Russian citizenship. In the applicant ’ s case, the District Court considered that the argument about his strong ties with Russia was irrelevant. 70. It follows that the legal framework as in force at the material time fostered excessively formalistic approach to the annulment of Russian citizenship and failed to give the individual adequate protection against arbitrary interference. The subsequent improvement of the applicable legislation cannot change that conclusion, because the amendments had no effect on the applicant ’ s situation. (iii) Conclusion 71. In the light of the above, the Court cannot accept that the annulment of the applicant ’ s Russian citizenship satisfied the requirements of Article 8 of the Convention. The Government did not demonstrate why the applicant ’ s failure to submit information about some of his siblings was of such gravity to justify deprivation of Russian citizenship several years after the applicant had obtained it. In the absence of balancing exercise which domestic authorities were expected to perform, the impugned measure appears to be grossly disproportionate to the applicant ’ s omission. The Court therefore concludes that there has been a violation of Article 8 of the Convention on account of the annulment of the applicant ’ s Russian citizenship. (b) Expulsion of the applicant from Russian territory 72. The decision to remove the applicant from the country amounted to an “interference” with his right to respect for his family life. 73. That interference was in accordance with the law, namely Article 18. 8 of the CAO. Administrative removal was a subsidiary penalty for breaching immigration rules. The applicant was found liable owing to his failure to comply with the DMI ’ s order to leave the country following the thirty-five-year entry ban imposed by the Federal Security Service on the grounds that he posed a threat to national security (see paragraphs 20, 23 and 25 above). 74. In these circumstances, and in the light of the parties ’ submissions, the Court has to take into account the proceedings concerning the imposition of the entry ban on the applicant, which were a prerequisite for the decision to remove him from Russia. 75. The Government argued that the applicant ’ s removal and the entry ban had pursued the legitimate aim of protecting public safety or order. However, neither they nor the domestic courts outlined the basis for the security services ’ allegations against the applicant (contrast Regner v. the Czech Republic [GC], no. 35289/11, §§ 156 ‑ 57, 19 September 2017; Liu v. Russia (no. 2) ( no. 29157/09, § 75, 26 July 2011; Amie and Others v. Bulgaria, no. 58149/08, §§ 12-13 and 98, 12 February 2013; and Zezev, cited above, § 39). 76. Even if the aim pursued by the applicant ’ s exclusion from Russian territory was legitimate, the Court cannot conclude that the impugned interference was proportionate and therefore necessary in a democratic society. The domestic proceedings concerning the entry ban were focused on the issue of whether the Federal Security Service had issued it within its competence. No independent review of whether its conclusion had a reasonable basis in fact was carried out by the court. It does not appear that a critical aspect of the case – whether the Federal Security Service had been able to demonstrate the existence of specific facts serving as a basis for its assessment that the applicant presented a national security risk – was examined in a meaningful manner (see paragraph 21 above; contrast Regner, cited above, § 154). The national courts confined themselves to a purely formal examination of the decision concerning the applicant ’ s thirty ‑ five-year exclusion from Russia (see, for similar reasoning, Liu (no. 2), cited above, § 89, and Kamenov v. Russia, no. 17570/15, § 36, 7 March 2017). 77. Furthermore, neither in the proceedings concerning the ban on entering Russia nor in the proceedings concerning the applicant ’ s administrative removal did the domestic courts duly balance the interests at stake, taking into account the general principles established by the Court (see references in paragraph 52 above). In particular, the courts did not take into account: ( i ) the length of the applicant ’ s stay in Russia, (ii) the solidity of his professional, social, cultural and family ties with the country, (iii) the difficulties which he and his family were likely to encounter after the applicant ’ s removal from Russia and the best interests and (iv) well-being of his children (see Jeunesse, cited above, §§ 118 and 120 ). The mere reference to the applicant ’ s family ’ s ability to follow him or stay in Russia and receive financial support from him abroad (see paragraphs 21 and 28 above) is clearly insufficient justification for the serious issue which was at stake. 78. Overall, in those two sets of the proceedings it was not convincingly established that the threat which the applicant allegedly posed to national security outweighed the fact that he had been living in Russia for a considerable period of time in a household with a Russian national, with whom he had four children, two of whom had been born in Russia. This is particularly relevant given that during his stay in Russia the applicant had not committed any offences. 79. Accordingly, there has been a violation of Article 8 of the Convention on account of the decision to remove the applicant from the country. 80. In the light of the above conclusion, the Court considers that it is not necessary to examine as to whether the imposition of the entry ban on the applicant satisfied the requirements of Article 8 of the Convention. other alleged violations of the convention 81. On 23 September 2019 the applicant submitted additional complaint under Article 6 of the Convention. Having regard to all the material in its possession, and in so far as this complaint falls within the Court ’ s competence, the Court finds that it does not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. This part of the application must therefore be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention. RULE 39 OF THE RULES OF COURT 82. 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 referral of the case to the Grand Chamber has not been requested; or (c) the Panel of the Grand Chamber rejects any request to refer under Article 43 of the Convention. 83. It considers that the indication made to the Government under Rule 39 of the Rules of Court (see paragraph 29 above) should remain in force until the present judgment becomes final or until the Court takes a further decision in this connection (see, mutatis mutandis, Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 10, ECHR 2010, and Nunez v. Norway, no. 55597/09, § 4, 28 June 2011 ). APPLICATION OF ARTICLE 41 OF THE CONVENTION 84. 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.” DamagePecuniary damage Pecuniary damage Pecuniary damage 85. The applicant submitted that following the proceedings concerning the administrative offence under Article 18.8 of the CAO he had paid the fine in the amount of EUR 29 (see paragraph 25 above). He also stated that on 26 September 2019 the Regional Court had ordered him to pay EUR 133 for the costs and expenses of the proceedings in which he had challenged the entry ban. Lastly, he claimed EUR 148 for the travel expenses incurred by his wife to visit him in detention and EUR 190 for his medical expenses. In total, he claimed EUR 500 in respect of pecuniary damage. 86. The Government contested the applicant ’ s claim. They stated that his obligation to pay the fine and cover the costs and expenses incurred by the national authorities in the domestic proceedings was not directly linked to the alleged violation. A similar argument was used against his claim for medical expenses, which, according to the Government, related to chronic illnesses he had developed before his detention. 87. The Court does not discern any causal link between the violation found and the claim for travel and medical expenses. It therefore dismisses that part of the claim. On the other hand, it decides to grant the remainder of the claim, awarding the applicant EUR 162 in respect of pecuniary damage, plus any tax that may be chargeable (compare Bogomolova v. Russia, no. 13812/09, §§ 60-62, 20 June 2017, and Elvira Dmitriyeva v. Russia, nos. 60921/17 and 7202/18, §§ 107-10, 30 April 2019). Non-pecuniary damage 88. The applicant also claimed EUR 10,000 in respect of non-pecuniary damage. 89. The Government argued that the claim was excessive and inconsistent with the Court ’ s awards in similar cases. 90. Taking into account the parties ’ submissions, the violations found, the Court grants the applicant ’ s claim in full. It awards him EUR 10,000 in respect of non ‑ pecuniary damage, plus any tax that may be chargeable to him. Costs and expenses 91. Lastly, the applicant claimed EUR 960 for the costs and expenses incurred before the Court. 92. The Government contested the claim. 93. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these were actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 850 covering costs for the proceedings before the Court, plus any tax that may be chargeable to the applicant. Default interest 94. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 8 of the Convention as concerned both the revocation of the applicant’s Russian citizenship and the decision to expel him from Russian territory, finding that, overall, it had not been convincingly established that the threat which the applicant had allegedly posed to national security had outweighed the fact that he had been living in Russia for a considerable period of time in a household with a Russian national, with whom he had four children, two of whom had been born in Russia. That was particularly relevant given that during his stay in Russia the applicant had not committed any offences. The Court noted in particular that the authorities’ decisions in the applicant’s case had been overly formalistic, failing to duly balance the interests at stake. In particular, they had not shown why the applicant’s failure to submit information about some of his siblings had been so grave that it was justified to deprive him of his Russian citizenship so many years after he had obtained it. Indeed, revoking the applicant’s citizenship for such an omission, without the authorities carrying out any kind of balancing exercise, had been grossly disproportionate. |
502 | Pension scheme | II. RELEVANT DOMESTIC LAW 23. In its 1986 version the relevant provisions of the Vienna Pension Act ( Pensionsordnung für Wien, LGBl Nr. 34/1986 ) read as follows: Section 14 (1) "The surviving spouse of a civil servant is entitled to a monthly pension if the civil servant himself had such a claim on the day of his death, or if he would have had such a claim upon retirement on that day." Section 15(1) “ A survivor ’ s pension shall amount to 60 % of the civil servant ’ s retirement pension......” Article II (2) "The monthly instalments to which the widower or the former husband are entitled, are - from 1 August 1986 onwards the amount of one third; - from 1 January 1989 onwards the amount of two thirds; - and from 1 January 1995 onwards the full amount. If the widower or former husband is incapable of gainful employment and indigent, this restriction does not apply." 24. On 1 January 1995, when the fourteenth amendment to the Pension Act came into force, the relevant provisions of this Act were amended as follows: Section 15 “1. A survivor ’ s pension shall amount to a certain percentage of the civil servant ’ s retirement pension ... 3. ...the percentage shall lie between 40 and 60 ...” Section 64e (1) “Provided the entitlement [to a survivor ’ s pension] had been acquired before 1 January 1995, Section 15 of the Pension Act as in force on 31 December 1994 is still applicable - to the survivor ’ s pension of a widow... - to the survivor ’ s pension of a widower, if he is incapable of gainful employment and indigent.....” 25. The Pension Act has meanwhile repeatedly been amended. Current Section 72 § 1 reads: “Provided the entitlement [to a survivor ’ s pension] had been acquired before 1 January 1995, Section 15 of the Pension Act as in force on 31 December 1994 is still applicable - to the survivor ’ s pension of a widow... - to the survivor ’ s pension of a widower, if he is incapable of gainful employment and indigent.....” 26. Section 6 of the Pension Allowance Act ( Ruhe - und Versorgungs - genuβzulagengesetz ) grants a survivor entitled to a survivor ’ s pension [under the Pension Act] a supplementary pension allowance amounting to a certain percentage of the civil servant ’ s retirement supplementary allowance. The percentage corresponds to the percentage relied on when calculating the survivor ’ s pension under the Pension Act. THE LAW I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 OF THE CONVENTION IN CONJUNCTION WITH ARTICLE 14 OF THE CONVENTION 27. The applicant complained under Article 1 of Protocol No. 1 taken alone and in conjunction with Article 14 of the Convention that the reduction of his survivor ’ s pension under the amended Pension Act was discriminatory and violated his right to property. Article 1 of Protocol 1 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.” 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.” 28. In its admissibility decision of 30 June 2005 the Court held that the amendment of the Pension Act leading to the reduction of the applicant ’ s entitlement to 40 % of his late wife ’ s retirement pension, affected the applicant ’ s property interests protected in Article 1 of Protocol No. 1. Accordingly, Article 14 is also applicable. The Court will now consider whether there has been a breach of Article 14 taken in conjunction with Article 1 of Protocol No. 1. 29. The Government argued that the re-assessment of the widower ’ s pension of the applicant was reasonable and justified as it served the legitimate aim of preventing excessive benefits. 30. The fourteenth amendment of the Pension Act provided for equal rights of widows and widowers to a survivor ’ s pension as from 1 January 1995. The differences between widows and widowers as regards the entitlement to a survivor ’ s pension acquired prior to that date were in line with the gradual adjustment process between widows ’ and widowers ’ pensions. Widows and widowers who were incapable of gainful employment and indigent already received a survivor ’ s pension in the amount of 60 % of their late spouse ’ s retirement pension before 1 January 1995, so that a new assessment of their pensions would have interfered with their acquired pension rights and violate their confidence. 31. The applicant submitted that the discrimination of widows and widowers under the amended Pension Act in fact prolongates the discrimination of widows and widowers in respect of entitlement to a survivor ’ s pension before 1 January 1995. He maintained that there is no reason why excessive benefits should only be prevented when paying survivor pensions to widowers but not also to widows who had acquired a survivor ’ s pension before 1 January 1995. He submitted that his position as a widower was just as well worth protecting than those of widows. 32. The Court recalls that 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 “ 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 and Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR 2000-IV). A difference of 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 a different treatment ( Van Raalte v. the Netherlands, judgment of 21 February 1997, Reports of Judgments and Decisions 1997-I, § 39). 33. The scope of this margin will vary according to the circumstances, the subject-matter and the background (see Petrovic v. Austria, judgment of 27 March 1998, Reports 1998-II, § 38). 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 Van Raalte, cited above, § 39, and Schuler- Zgraggen v. Switzerland, judgment of 24 June 1993, Series A no. 263, § 67). 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 (see, for example, James and Others v. the United Kingdom, judgment of 21 February 1986, Series A no. 98, § 46; National and Provincial Building Society and Others v. the United Kingdom, judgment of 23 October 1997, Reports 1997-VII, § 80). 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” ( ibid. ). 34. Finally, since the applicant complains about inequalities in a welfare system, the Court underlines that Article 1 of Protocol No. 1 does not include 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 amounts of benefits to provide under any such scheme. If, however, a State does decide to create a benefits or pension scheme, it must do so in a manner which is compatible with Article 14 of the Convention (see Stec and Others v. the United Kingdom [GC], no. 65731/01, § 53, 12 April 2006 ). 35. In the instant case, the amended Pension Act provided for a new assessment of survivor ’ s pensions. The more favourable provisions of the former Pension Act were still applicable to widows who had acquired entitlement before 1 January 1995, whereas they were only applicable to widowers who had acquired entitlement before 1 January 1995 and provided they were incapable of gainful employment and indigent. This constitutes a “difference in treatment” between persons in a similar situation, based on gender. It remains to be determined whether there was a reasonable and objective justification for this different treatment. 36. The Government referred in this regard to the gradual adjustment process between widows ’ and widowers ’ pensions which was found to be in conformity with the Austrian constitutional law by the Constitutional Court. As from 1 January 1995 widows and widowers were treated equally. Against this background, the Constitutional Court had no concerns that the legislation maintained different survivor ’ s payments when entitlement had been acquired prior to that date. Widows and widowers who were incapable of gainful employment and indigent, already received a full survivor ’ s pension in the amount of 60 % of their late spouse ’ s retirement pension before 1 January 1995, so that a new assessment of their pensions would have interfered with their existing pension rights. 37. The Court notes that this argumentation may be summarised to the statement that the impugned inequality between widows and widowers was linked to their prior differential legal situation which, in itself, was objectively justified. 38. The Court observes that it was recently called upon to decide whether differences in a system of earning-related benefits arising from the link to differential pension ages of women and men were discriminatory contrary to Article 14 of the Convention taken in conjunction with Article 1 of Protocol no. 1 of the Convention (see Stec and Others v. United Kingdom, cited above). In this case the Court found no violation of the Convention as it considered that the respondent State ’ s decisions as to the precise timing and means of putting right the inequality in pension age did not exceed the wide margin of appreciation allowed in such a field and the link of eligibility for the benefits to the pension system was consistent with the purpose of the benefits. 39. The Court considers that in the present case the gradual adjustment of existing differences in the payment of survivor ’ s pensions may be acceptable under the Convention for reasons similar to those given in the Stec case. However, unlike in the Stec case, the reform towards equality between women and men in the present case was already effectively under way and the final target of equal treatment should have been reached on 1 January 1995. At this date, the applicant would have reached entitlement to a full survivor ’ s pension in the amount of 60 % of his late wife ’ s retirement pension. 40. The Court finds that very strong reasons have to be put forward in order to explain the amendment in the relevant legislation in December 1994 which introduced further differentiation and thereby frustrated the planned equalisation for part of the widowers, including the applicant, at the very last moment. However, the Government have not forwarded any convincing reason why, contrary to the prior assessment expressed in the Vienna Pension Act of 1986 that equal treatment of widows and widowers should be reached by 1 January 1995, a more favourable treatment of widows suddenly appeared to be justified again. Their argument that a new assessment of the pension of those persons who already received the full amount of survivor ’ s pension before 1 January 1995 would have interfered with their existing rights, might equally well apply to persons who, until amendment of the Pension Act in December 1994, were entitled to and trusted to receive the full amount of a survivor ’ s pension as from 1 January 1995. The Court accordingly considers that the subsequent difference in treatment between men and women as regards entitlement to survivor ’ s pensions acquired prior to 1995 was not based on any “objective and reasonable justification”. 41. In conclusion, the Court finds that there has, therefore, been a violation of Article 14 taken in conjunction with Article 1 of Protocol No. 1 in this case. 42. The above finding further renders it unnecessary for the Court to consider separately the applicant ’ s complaint under Article 1 of Protocol No. 1 taken alone. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 43. 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.” 44. In respect of pecuniary damage the applicant claimed 60,552.01 EUR as compensation for the part of his survivor ’ s pension he lost due to the impugned reduction until August 2005, when he filed his just satisfaction claims, including 4 % interest rate. He further requested that the Court take also account of the respective amounts from August 2005 until the Court ’ s judgment. The applicant calculated his claims on the basis of gross survivor ’ s payments as he submitted that it was the duty of the Republic of Austria to assess and deduct taxes and social contributions from these payments. 45. In respect of costs and expenses, the applicant claimed 3,533.03 EUR in respect of the costs of the domestic proceedings and 7,531.86 EUR in respect of the costs of the proceedings before the Court. Both sums include VAT. 46. The Government pointed out that there must by a causal link between the violation found and the presumed damage. Moreover, it is not for the Court to speculate what the outcome of the proceedings would have been, had the authorities or courts acted in conformity with the requirements of the Convention. The Pension Act as in force before 31 December 1994 raised expectations among male survivors that they would be entitled as of 1 January 1995 to a widower ’ s pension in the full amount, however, the applicant was never actually entitled to the full amount. 47. As regards the costs claim, they asserted that the sum claimed for representation in the proceedings before the Vienna Municipality, namely 608.23 EUR, was not necessarily incurred since there was no obligation to be represented by counsel. The sum claimed for proceedings before the Court was excessive. 48. The Court considers 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 Government and the applicant (Rule 75 § 1 of the Rules of Court). | 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 in the applicant’s case, finding that the difference in treatment between men and women as regards entitlement to survivor’s pensions acquired prior to 1995 was not based on any “objective and reasonable justification”. |
634 | Journalists and publishing companies | II. RELEVANT DOMESTIC LAW AND PRACTICE 41. Under Norwegian defamation law, there are three kinds of response to unlawful defamation, namely the imposition of a penalty under the provisions in Articles 246 and 247 of the Penal Code, an order under Article 253 of the Code declaring the defamatory allegation null and void ( mortifikasjon ) and an order under the Damage Compensation Act 1969 to pay compensation to the aggrieved party. Only the latter two were at issue in the present case. 42. Under Article 253 of the Penal Code, a defamatory statement which is unlawful and has not been proved true may be declared null and void by a court. In so far as relevant this provision reads: “1. When evidence of the truth of an allegation is admissible and such evidence has not been produced, the aggrieved person may demand that the allegation be declared null and void unless otherwise provided by statute.” 43. Such a declaration is applicable only with regard to factual statements, the truth of value judgments not being susceptible of proof. 44. Although the provisions on orders declaring a statement null and void are contained in the Penal Code, such an order is not considered a criminal sanction but a judicial finding that the defendant has failed to prove its truth and is thus viewed as a civil-law remedy. 45. Section 3-6 of the Damage Compensation Act reads: “A person who has injured the honour or infringed the privacy of another person shall, if he has displayed negligence or if the conditions for imposing a penalty are fulfilled, pay compensation for the damage sustained and such compensation for loss of future earnings as the court deems reasonable, having regard to the degree of negligence and other circumstances. He may also be ordered to pay such compensation for non-pecuniary damage as the court deems reasonable. If the infringement has occurred in the form of printed matter, and the person who has acted in the service of the owner or the publisher thereof is responsible under the first subsection, the owner and publisher are also liable to pay compensation. The same applies to any redress imposed under the first subsection unless the court finds that there are special grounds for dispensation...” 46. Conditions for holding a defendant liable for defamation are further set out in Chapter 23 of the Penal Code, Article 247 of which provides: “Any person who, by word or deed, behaves in a manner that is likely to harm another person's good name and reputation or to expose him to hatred, contempt, or loss of the confidence necessary for his position or business, or who is accessory thereto, shall be liable to fines or imprisonment for a term not exceeding one year. If the defamation is committed in print or in broadcasting or otherwise under especially aggravating circumstances, imprisonment for a term not exceeding two years may be imposed.” A limitation to the applicability of Article 247 follows from the requirement that the expression must be “unlawful” (“ rettsstridig ”). While this is expressly stated in Article 246, Article 247 has been interpreted by the Supreme Court to include such a requirement. 47. Further limitations to the application of Article 247 are contained in Article 249, which, in so far as is relevant, reads: “1. Punishment may not be imposed under Articles 246 and 247 if evidence proving the truth of the accusations is adduced. ... ” THE LAW I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 48. The applicants complained under Article 10 of the Convention that the Supreme Court's decision of 1 July 2003 had entailed an interference with their right to freedom of expression that could not be regarded as necessary in a democratic society. Article 10 reads : “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.” 49. The Government contested that argument. A. Admissibility 50. The Court finds that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Preliminary issue regarding the scope of the case 51. The Government pointed out that the Court was bound to rely on the facts as established by the national courts and should accordingly base its assessment and scrutiny on the same facts as established by the Supreme Court, which were the same as those found by the majority of the High Court. This related to the fact that the article had given no source for the accusation, and therefore the newspaper could not claim to have transmitted a defamatory accusation which had been made by others. 52. The applicants contested the Government's contention, which in their view was aimed at excluding evidence demonstrating that the newspaper's coverage had, in essence, been accurate. The applicants referred here to certain new evidence which they had unsuccessfully sought to adduce before the Supreme Court: notably declarations by the journalist, Mr Wilhelmsen, the director of the Tjøme Municipality's Planning and Building Department, Mr Sæter, and the mayor, Mr Tandberg, dated 28 January, 8 May and 13 May 2003 respectively, about the identity of the journalist's source (s) and the contents of the information provided by the source (s), plus an additional declaration made by Mr Sæter on an unintelligible date in 2003. On account of the national rules, the appeal to the Supreme Court had been examined in accordance with the rules of the Code of Criminal Procedure, with the result that the Supreme Court was bound to base its decision on the same facts as the High Court. 53. The Court emphasises that a complaint is characterised by the facts alleged in it, not merely by the legal grounds or arguments relied on (see Powell and Rayner v. the United Kingdom, judgment of 21 February 1990, Series A no. 172, p.13, § 29). Within the scope of the case, as delimited by the decision on the admissibility of the application, the Court has full jurisdiction, which encompasses any issue of fact or law that arises during the proceedings before it (see Guerra and Others v. Italy, judgment of 19 February 1998, Reports of Judgments and Decisions 1998 ‑ I, p. 223, § § 43 and 44 ). 54. However, the new evidence in question comprised statements by sources who were anonymous during the proceedings before the High Court but who thereafter waived their anonymity and gave written statements for submission to the Supreme Court. Under the relevant national procedural rules the Supreme Court was prevented from relying on new evidence, unlike the City Court and the High Court, which had full jurisdiction to assess the evidence. This limitation on the Supreme Court's jurisdiction must have been foreseeable for the applicants. Moreover, the new evidence significantly altered the substance of their complaint under Article 10 of the Convention. As a result the national courts were not given a proper opportunity to review from the angle of Article 10 of the Convention the subject matter of the applicants'complaint as altered by this new evidence, which is the purpose of the requirement of exhaustion of domestic remedies in Article 35 § 1 of the Convention. This provision also requires that the complaints intended to be made subsequently at Strasbourg must first be 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 must be used (see Cardot v. France, judgment of 19 March 1991, Series A no. 200, p. 18, § 34; and Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports 1996 ‑ IV, p. 1210, § 66 ). Therefore, the Court considers that the witness statements in question fall outside the scope of its review and will accordingly not rely on them. If the Court were to accept such new evidence, it could lead to the unreasonable consequences of making it a forum for reopening of national proceedings. Such a function would not be consistent with its subsidiary role in the Convention protection system. C. Merits 55. The Court considers that the impugned measure constituted an “interference by [a] public authority” with the applicants'right to freedom of expression as guaranteed under the first paragraph of Article 10, but that the interference was “prescribed by law”, namely Articles 247, 431 and 253 of the Penal Code and section 3-6 of the Damage Compensation Act 1969 (see paragraphs 4 1 to 4 7 above), and pursued the legitimate aim of protecting “the reputation or rights of others”. It thus fulfilled two of the three conditions of justification envisaged by the second paragraph of Article 10. The dispute in the present case relates to the third condition – whether the interference was “necessary in a democratic society”. 1. Arguments of those appearing before the Court ( a ) The applicants 56. The applicants disputed the necessity of the measures ordered by the High Court and upheld on appeal by the Supreme Court, which in their view violated Article 10 of the Convention. 57. Firstly, they submitted that no allegation had been adopted by Tønsbergs Blad. In the article they had emphasised that the presentation was “[a] ccording to the understanding of Tønsbergs Blad ”. It was apparent from the article that the information provided emanated from officials within the Municipality. For the most part, the newspaper was quoting from or directly referring to interviews with named officials. 58. Secondly, the statements contained in the article had not been presented as undisputable facts. On the contrary, the newspaper had expressed numerous reservations, after which no conclusion had been drawn in respect of the Rygh family's compliance with the permanent residence requirements. The Supreme Court had failed to take this into account. In essence, the impugned statements implied that Mr Rygh was under suspicion for potentially not complying with the permanent residence requirements, a wording used in the article. 59. The national courts, however, had derived another interpretation, which from the applicants'point of view was stricter. The Supreme Court had established that Mr Rygh had “found himself on a list that the Tjøme Municipality had prepared, and which contained the names of persons who the Municipality considered to have breached the residence requirements ” ( see paragraph 36 of the Supreme Court's judgment, quoted in paragraph 3 9 above ). Subsequently, the Supreme Court had “tightened up” its interpretation by attributing to the applicants a more detailed knowledge of the form of procedure followed by the Municipality, as it stated: “ ... the interview does not allow the conclusion to be drawn that the Municipality's processing was concluded and that a definitive list therefore existed. ” ( see paragraph 48 of the Supreme Court's judgment quoted in paragraph 39 above ) 60. The Supreme Court had then made a distinction between being on a tip -off list and being on a list “that the Municipality has decided, after processing and consideration, to refer to the County Governor ” ( see paragraph 48 of the Supreme Court's judgment quoted in paragraph 3 9 above ). Hence, the Supreme Court had found that the applicants had anticipated the form of procedure followed by the Municipality and thereby reinforced the allegation against Mr Rygh. This assessment endorsed the Supreme Court's standpoint that “ [a] n accusation of a contravention of the law of this nature must be regarded as defamatory” ( see paragraph 37 of the Supreme Court's judgment in paragraph 3 9 above ). In essence, according to the Supreme Court, the applicants had accused Mr Rygh of breaking the law. This meaning had been derived by the Supreme Court, however, not from the express terms but from the general tenor of the article. This interpretation had been in contradiction to the numerous reservations expressed in the article. 61. Moreover, the applicants argued, the impugned statements should be read in conjunction with the articles of 30 June and 8 August 2000, with the result that all suspicions against Mr Rygh should be eliminated. 62. In the applicants'opinion, the ordinary reader would expect a follow-up to the article of 8 June 2000, particularly in the light of the information provided that Mr Rygh would have to come forward with an explanation. This was, in itself, a valid argument for extending the period of time against which the impugned statements should be assessed. As the article of 30 June 2000 was a natural and predictable follow-up to the first article, this should also be taken into consideration in terms of interpretation. 63. Furthermore, the article of 8 June 2000 had been entirely accurate in its presentation of the case. While it had been evident to the City Court that the article in question had been based on interviews with director of the Planning and Building Department and other officials within the Municipality, the High Court, however, had attached particular importance to the fact that no “further investigation” of the Rygh property had been conducted by the Municipality. However, the journalist had not been informed of this at the crucial time. The Supreme Court had based itself heavily upon the High Court's assessment and had pointed out that no source for the impugned allegation had been presented in the article itself. 64. Should the Court take the Supreme Court's interpretation as the point of departure, the applicants still contended that Tønsbergs Blad's coverage was, in essence, correct. Should the Court instead fully endorse the Supreme Court's interpretation, the applicants contended that the inaccuracies in the newspaper article were, at the most, marginal. In this connection they relied on Mr Justice Rieber-Mohn's dissenting opinion ( see paragraph 60 of the Supreme Court's judgment, quoted in paragraph 40 above ): “ Tønsbergs Blad was therefore close to the truth in its story of 8 June 2000.” 65. When the story had been published, it was based on information from the director of the Planning and Building Department that the list was due for dispatch. The director of the Building Department had not clarified in the interview of 7 June 2000 that the list had gone without being processed since October 1999, or that the Ryghs'property had not been specifically examined. No one had questioned that the mayor and the director of the Tjøme Municipality's Planning and Building Department were reliable witnesses. In the applicants'opinion, it was therefore not relevant for the majority of the Supreme Court to have elaborated on the reliability of anonymous and potentially unreliable sources ( see paragraph 47 of the Supreme Court's judgment, quoted in paragraph 3 8 above ). 66. The applicants stressed that, in the present case, the interference did not correspond to a pressing social need. The allegation had not been a particularly defamatory one and had, in fact, been dispelled in the following articles. No one could even suspect Mr Rygh, on the basis of Tønsbergs Blad's article of 8 June 2000, of any reprehensible conduct in this regard. He could easily and immediately have corrected the conception formed by the Municipality simply by providing information on the matter, for example by submitting the legal opinion he had obtained. 67. The articles had indeed focused on a matter of great public interest, after which public debate had been reinforced, resulting in a public discussion of the loopholes in the permanent residence requirements and the need for an amendment of the Concession Act. 68. The applicants acknowledged that the protection of a person's reputation was a legitimate aim to pursue. However, given that there had been minimal, if any, effect on Mr Rygh's reputation in the present case, the interference with the applicants'rights was disproportionate. By declaring the impugned statements null and void, the Supreme Court had significantly worsened the operating conditions of local newspapers by extensively limiting the use of reliable anonymous sources and the use of examples to illustrate matters of public interest. 69. Denying the press any latitude in daily news coverage would in itself have a chilling effect. In addition to declaring the impugned statements null and void, the Supreme Court had ordered the applicants to pay Mr Rygh compensation for non-pecuniary damage in the amount of NOK 50,000 and to reimburse his expenses in the amount of NOK 673,829. This part of the interference was under no circumstances proportionate to the aim pursued. 70. In the applicants'opinion, by omitting to take into account a number of significant arguments in its consideration of the case, the Supreme Court had failed to strike a proper balance and to adequately assess the necessity of the interference with their freedom of expression as protected by Article 10 of the Convention. ( b ) The Government 71. The Government maintained that the interference complained of clearly corresponded to a pressing social need. While the freedom of expression was a fundamental right in a democratic society, it was necessary to interfere with the exercise of that freedom where, as in the present case, it was abused by directing false and harmful accusations against a private individual. The national authorities had, inter alia under Article 12 of the Universal Declaration of Human Rights and Article 17 of the UN Covenant on Civil and Political Rights, an obligation to protect private individuals against unlawful attacks on their reputation. This obligation must be given priority when the interference, as in the present case, had no chilling effect on political debate. 72. The Government emphasised that the Supreme Court's judgment had been based on a correct interpretation of the allegations in question, in conformity with the principles established by the European Court in its case-law. The Supreme Court had correctly concluded that the allegations had had an adverse effect on Mr Rygh's reputation, as described in the High Court's judgment, and were defamatory. Since the national courts were better equipped than the European Court to assess the perceived meaning and effects of certain statements, these were issues that should be left to the assessment of the national courts. There was no reason for the Court to re-examine the Norwegian courts'findings on this point. 73. Nor was it for the Court to carry out a review of the High Court's finding, made on the basis of the immediate evidence presented to it in open court, that it was proven that the allegations were demonstrably incorrect. The Court should take as a premise that the Tjøme Municipality had never processed the list and that the statements made in the article were therefore incorrect. 74. As found by the Supreme Court, the allegations in question had been based on an anonymous source. No other sources supported the conclusion that Mr Rygh's name had been mentioned on a list that in the immediate future was to be sent to the County Governor for decision. The Supreme Court had correctly drawn a parallel to situations where allegations were put forward without any source. 75. Moreover, the applicants had taken no precautions before publishing the article. The Supreme Court had correctly concluded that the applicants had failed to act in good faith when publishing the article. As followed directly from the Concession Act, persons in Mr Rygh's situation were exempted from the permanent residence requirements. Any possible misunderstanding in this respect could easily have been avoided by simply reading the Act. Despite having not worked under any time constraints, the newspaper had failed to take sufficient steps to fulfil its obligation to verify the truth of the factual allegation in question. The fact that Mr Rygh, on being contacted by the newspaper before publishing the article, had stated that the allegation must be due to a misunderstanding should have resulted in a stricter duty of care for the newspaper. The journalists'work had failed to meet the relevant standards of journalistic ethics. 76. As the applicants had made clear in their complaint, the implementation of the permanent residence requirements had over the last few years been the subject of great interest in the municipalities of Vestfold, and in other parts of Norway as well. Tønsbergs Blad was admittedly, as a regional newspaper, an important forum for discussions of topical subjects such as the present one. However, this had no bearing on the issue here. Tønsbergs Blad could perfectly well have attracted the public interest by publishing the article without mentioning Mr Rygh by name and printing his picture. In spite of this, Tønsbergs Blad had still, without any factual foundation, exposed him to public contempt as a “ residence sinner ”. The interference in the present case could not in any possible way have had a so-called chilling effect on the public debate on permanent residence regulations. 77. The Government further stressed that, for the purposes of the present case, Mr Rygh ought to be regarded as a private individual. Neither before the publication of the article, nor at any other material time, had he participated in any way in the public debate on the subject of permanent residence regulations or exposed himself to public comment or criticism. His public exposure had been limited to his positions as Executive Vice-President, head of financial investments, and a member of the Executive Board of the Norwegian company Orkla ASA. In no way had the allegations in question been capable of contributing to a debate in a democratic society. The allegations had exclusively concerned Mr Rygh's behaviour as a private person and had no connection whatsoever with his position as a business executive. Mr Rygh should be regarded as a private individual in relation to the statements, to be assessed within the stricter limits of acceptable criticism. 78. The articles published on 30 June and 8 August 2000 were of no particular importance. They had been published a relatively long time after the disputed allegations had been made. The impression created, that the Tjøme Municipality considered Mr Rygh to have breached the permanent residence requirements, had by that time been firmly established. Apparently, the applicants had not tried to correct the false accusations set forth in the first article. On the contrary, the subsequent articles had given the impression that Mr Rygh had deliberately utilised a legal loophole. 79. In the Government's opinion, private individuals like Mr Rygh must be entitled to protection against false accusations of this kind, especially where the accusations had no or only limited public interest. Interference with press freedom as in the present case would have no chilling effect on the public and political debate. 80. In the light of the above, the Government contended that the respective interests of the applicants and the public in imparting and receiving false information regarding Mr Rygh's observance of the permanent residence requirements were not such as to outweigh the considerations relied on by the Supreme Court, which must be considered relevant and sufficient for the purposes of Article 10 § 2. Moreover, in finding the allegations in question defamatory and declaring them null and void, the Norwegian Supreme Court could not be said to have placed an excessive or unreasonable burden on the applicants. Regard should be had to the fact that the interference had solely concerned the particular allegations in question and had had no chilling effect on the public debate on the issue of permanent residence regulations. The Supreme Court had struck a fair balance between the fundamental right of freedom of expression, on the one hand, and the legitimate interests of a democratic State in ensuring that the rights and reputation of others be protected, on the other hand. It follows from this that the interference had been proportionate to the legitimate aim pursued. The disputed interference had therefore been necessary for the purposes of Article 10 § 2 of the Convention. 2. Assessment by the Court ( a ) General principles 81. The test of “necessity in a democratic society” requires the Court to determine whether the “interference” complained of corresponded to a “pressing social need”, whether it was proportionate to the legitimate aim pursued and whether the reasons given by the national authorities to justify it are relevant and sufficient (see Sunday Times v. the United Kingdom (no. 1), judgment of 26 April 1979, Series A no. 30, p. 38, § 62). In assessing whether such a “need” exists and what measures should be adopted to deal with it, the national authorities are left a certain margin of appreciation. This power of appreciation is not, however, unlimited but goes hand in hand with European supervision by the Court, whose task it is to give a final ruling on whether a restriction is reconcilable with freedom of expression as protected by Article 10. 82. One factor of particular importance for the Court's determination in the present case is the essential function the press fulfils in a democratic society. Although the press must not overstep certain bounds, in particular in respect of the reputation and rights of others and the need to prevent the disclosure of confidential information, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest (see Jersild v. Denmark, judgment of 23 September 1994, Series A no. 298, p. 23, § 31; and De Haes and Gijsels v. Belgium, judgment of 24 February 1997, Reports 1997-I, pp. 233 ‑ 34, § 37). In addition, the Court is mindful of the fact that journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation (see Prager and Oberschlick v. Austria, judgment of 26 April 1 995, Series A no. 313, p. 19, § 38). In cases such as the present one the national margin of appreciation is circumscribed by the interest of democratic society in enabling the press to exercise its vital role of “public watchdog” in imparting information of serious public concern (see Goodwin v. the United Kingdom, judgment of 27 March 1996, Reports 1996-II, p. 500, § 39). 83. In sum, the Court's task in exercising its supervisory function is not to take the place of the national authorities but rather to review under Article 10, in the light of the case as a whole, the decisions they have taken pursuant to their power of appreciation (see, among many other authorities, Fressoz and Roire v. France [GC], no. 29183/95, § 45, ECHR 1999-I). ( b ) Application of these principles 84. The Court observes from the outset that the disputed statements consisted of two introductory passages on the front page and on page 3 of the Tønsbergs Blad's issue of 8 June 2000, which the High Court, whose conclusion was upheld by the Supreme Court, declared null and void under Article 253 of the Penal Code (see paragraph 36 above) : “ Permanent residence requirements : In the worst - case scenario [ H.K. ] may be forced to sell her property at Hvasser [an island next to Tjøme ]. The same applies to Orkla director Tom Vidar Rygh. According to the understanding of Tønsbergs Blad, their properties are on a list which the Tjøme Municipality will submit to the County Governor in the very near future. The list includes properties whose use is thought not to be in conformity with the permanent residence requirements. ” “ ... Tom Vidar Rygh may be forced to sell their properties at Tjøme. The reason is that, according to the Tjøme Municipality, they do not comply with the permanent residence requirements applicable to their properties.” 85. According to the findings of the Supreme Court, at the heart of the impugned statements there was an allegation that Mr Rygh's name appeared on a list drawn up by the Municipality of persons whom the Municipality considered to have breached the permanent residence requirements. That allegation was false and constituted a public moral condemnation of Mr Rygh's conduct that was defamatory within the meaning of Article 247 of the Penal Code (see paragraphs 36 to 40 of the Supreme Court's judgment, quoted in paragraph 39 above). The Court finds no reason to doubt that the reasons relied on by the Supreme Court were relevant to the legitimate aim of protecting the rights and reputation of Mr Rygh. 86. As to the further question whether those reasons were sufficient for the purposes of Article 10, the Court must take into account the overall background against which the statements were made. In this regard it notes that the purpose of applying permanent residence requirements under section 5(3) of the Concession Act to all - year residences in the Tjøme Municipality was to prevent private property used for permanent residence from being transformed into holiday homes and thus to ease the pressure on the local community. There was also a wish to avoid depopulation of the Municipality during off-season periods (see paragraph 8 above). 87. The Court is not convinced by the Government's argument that the portrayal of Mr Rygh in the article hardly corresponded to a public interest worthy of protection under Article 10 of the Convention. Whether or not a publication concerns an issue of public concern should depend on a broader assessment of the subject matter and the context of the publication. The newspaper article of 8 June 2000 had its background in concerns by local inhabitants and politicians about the failure of certain property owners within the Municipality to comply with applicable residence requirements. There was also a perception that affluent persons had found ways of circumventing or exploiting loopholes in the rules. That had led the applicant newspaper to highlight the coverage by focusing on two prominent and well-known personalities, one, Mr Rygh, from the world of industry and the other, Mrs H.K., from the world of culture. The Court does not find that the article was intended to damage Mr Rygh's reputation (see Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 63, ECHR 1999 ‑ III). Rather, the purpose was to illustrate a problem that the public had an interest in being informed about. His name ( like that of Mrs H.K.) had featured on the provisional tip - off list drawn up by the Municipality of names of persons suspected by local inhabitants and politicians of having breached the residence requirements. While it is true that the information published about Mr Rygh did not directly address his role as an industrial leader, the Court is unable to agree with the Government's suggestion that it related exclusively to his private life. The Court shares the opinion of the dissenting judge of the Supreme Court, Mr Justice Rieber-Mohn (see paragraph 40 above), that a possible failure of a public figure to observe laws and regulations aimed at protecting serious public interests, even in the private sphere, may in certain circumstances constitute a matter of legitimate public interest (see Fressoz and Roire, cited above, § 50 ). It also agrees with the dissenting judge that such circumstances obtained in the present case. 88. The most careful scrutiny on the part of the Court is called for when, as in the present case, the measures taken or sanctions imposed by the national authority are capable of discouraging the participation of the press in debates over matters of legitimate public concern (see Jersild, cited above, pp. 25-26, § 35; and Bergens Tidende and Others v. Norway, no. 26132/95, § 52, ECHR 2000 ‑ IV ). 89. The Court observes in this connection that protection of the right of journalists to impart information on issues of general interest requires that they should act in good faith and on an accurate factual basis and provide “reliable and precise” information in accordance with the ethics of journalism (see, for example, Goodwin, cited above, p. 500, § 39; Fressoz and Roire cited above, § 54-I; Bladet Tromsø and Stensaas, cited above, § 65; and Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 78, ECHR 2004 ‑ XI ). Under the terms of paragraph 2 of Article 10 of the Convention, freedom of expression carries with it “duties and responsibilities”, which also apply to the media even with respect to matters of serious public concern. These “duties and responsibilities” are significant when there is a question of attacking the reputation of a named individual and infringing the “rights of others”. Thus, special grounds are required before the media can be dispensed from their ordinary obligation to verify factual statements that are defamatory of private individuals. Whether such grounds exist depends in particular on the nature and degree of the defamation in question and the extent to which the media can reasonably regard their sources as reliable with respect to the allegations (see, among other authorities, McVicar v. the United Kingdom, no. 46311/99, § 84, ECHR 2002-III; Bladet Tromsø and Stensaas, cited above, § 66; and Pedersen and Baadsgaard, cited above, § 78 ). 90. The Court will consider the newspaper report as a whole and have particular regard to the words used in the disputed parts of the report and the context in which they were published, as well as the manner in which it was prepared (see Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 62, ECHR 1999 ‑ IV ). The Court must examine whether the applicants acted in good faith and complied with the ordinary journalistic obligation to verify a factual allegation. This obligation required that they should have relied on a sufficiently accurate and reliable factual basis which could be considered proportionate to the nature and degree of their allegation, given that the more serious the allegation, the more solid the factual basis has to be ( see Pedersen and Baadsgaard, cited above, § 78). 91. First, the Court observes that the impugned assertions consisted of factual statements, not value judgments, to the effect that Mr Rygh's name was on the Municipality's list of persons whom it considered to be in breach of the residence requirements. This was a bare allegation presented without any criticism and only with a suggestion that Mr Rygh might be forced to sell his property. A breach of the residence requirements was not a criminal offence, only a regulatory matter. Both the City Court and the High Court considered that, locally, the conduct of which Mr Rygh was accused was likely to be viewed by many as being reprehensible from a moral and social point of view but that the accusation had not been of the most defamatory kind. 92. It should further be noted that the disputed allegations were presented with precautionary qualifications (emphasis added here) : “ According to the understanding of Tønsbergs Blad ”; “The list includes properties whose use is thought not to be in conformity with the permanent residence requirements ”; “ may be forced to sell”. The headline on the front page indicates that Mr Rygh will have to explain himself (see paragraph 12 above). In the article inside the newspaper on page 3 there is a description of the procedure indicating that the Municipality will report to the County Governor properties suspected of not complying with the residence requirements and that it will then be for the County Governor to confront the owners. It should, moreover, be noted that the article inside the newspaper highlighted Mr Rygh's own comment that the mention of his name on the list must be due to a “ misunderstanding ” (see paragraph 15 above). In addition, at the bottom of the same page, the newspaper published another article entitled “A two - edged sword”, reproducing comments by local politicians giving diverging views on the public need to maintain residence requirements in the Municipality (see paragraph 16 above). Even though the news item was presented in a somewhat sensationalist style, the overall impression given by the newspaper report was that, rather than inviting the reader to reach any foregone conclusion about any failure on Mr Rygh's part, it raised question marks with respect to both whether he had breached the said requirements and whether those requirements should be maintained, modified or repealed. 93. In the light of the above, the Court does not find that the impugned accusation was capable of causing such injury to personal reputation as could weigh heavily in the balancing exercise to be carried out under the necessity test in Article 10 § 2 of the Convention. 94. Nor does the Court find that the news coverage was presented without proper balance. In addition to the above-mentioned qualifications and counterbalancing elements contained in the 8 June 2000 issue, regard should be had to the fact that, on 30 June 2000, the day after the journalist was informed about the exchange of correspondence between Mr Rygh and the Municipality's Chief Executive Officer, Mr Hansø, the newspaper published a follow-up article based on an interview by the journalist with Mr Hansø. The article made it clear that Mr Rygh's name had been removed from the Municipality's list and stated the reasons why the residence requirements did not apply to the property used by him. This must have considerably reduced any injury to Mr Rygh's reputation caused by the report of 8 June 2000. In the article of 8 August 2000 the newspaper, referring to its previous news reports of 8 and 30 June 2000, further emphasised these clarifications. The Court is unable to share the Supreme Court's view that the reports of 30 June and 8 August 2000, although published some time after the 8 June 2000 issue, were of negligible significance for the newspaper coverage seen as a whole (see paragraph 51 of the Supreme Court's judgment quoted in paragraph 39 above). In this connection, the Court reiterates that news reporting based on interviews constitutes one of the most important means whereby the press is able to play its vital role of “public watchdog”. The methods of objective and balanced reporting may vary considerably, depending among other things on the medium in question; it is not for the Court, any more than it is for the national courts, to substitute its own views for those of the press as to what techniques of reporting should be adopted by journalists (see Jersild, cited above, pp. 23-25, §§ 31 and 34; Bladet Tromsø and Stensaas, cited above, § 63; and Bergens Tidende and Others, cited above, § 57 ). 95. As to the further question whether the applicants acted in good faith and complied with the ordinary journalistic obligation to verify a factual allegation, the Court notes that, according to the High Court's assessment of the evidence, on which the Supreme Court relied, the defamatory accusation against Mr Rygh had originated from an anonymous source. The High Court reasoned that, in view of the impossibility for the courts to verify the extent to which the journalist had acted with due care in relying on the anonymous source, the defamatory allegation ought to be regarded as the newspaper's own. Similarly, the Supreme Court proceeded from the premise that in the use of anonymous sources a stricter duty of care applied and that it would largely be the risk of the newspaper if factual information originating from such sources were false (see paragraphs 43 and 47 of the Supreme Court's judgment quoted in paragraph 39 above). The Court accepts this reasoning and finds no special grounds for dispensing the newspaper from its ordinary obligation to verify factual statements that are defamatory of private individuals. 96. In respect of the question whether the journalist had acted in good faith, the following should, however, be noted. The journalist had worked on the item over a considerable period, since the autumn of 1999. He was in possession of the tip-off list (entitled “Properties which should be verified in relation to the residence requirements. (Not public)”). This was an official document drawn up by the municipal administration on 11 October 1999 and presented the following day to the Municipal Standing Committee at a meeting open to the public. From the autumn of 1999 he made a number of enquiries to the Municipality on the subject and on 7 June 2000 he interviewed the director of the Municipality's Planning and Building Department, Mr Sæter (see paragraphs 9 to 11 above). 97. It does not transpire from the interview with Mr Sæter that Mr Rygh's name was on the list in question and that the Municipality held the opinion that he had breached the residence requirements. However, at the High Court's hearing, both the director of the Municipality's Planning and Building Department and the mayor testified that they, at the time, had been of the view that Mr Rygh was in breach of the residence requirements (see paragraph 33 above). Thus, it was shown that two presumably representative and reliable officials within the Municipality assuming key roles in the handling of the residence matter in substance held the same opinion as that attributed to the Municipality as a whole in the impugned passages when they were published on 8 June 2000. 98. It was an undisputed fact that Mr Rygh did not live permanently on the property at issue. The only question at the time of the publication of the 8 June 2000 issue was whether the residence requirements applied at all to the property used by him. As already mentioned, key figures in the Municipality believed that they did. 99. In the light of the above, the Court finds there was substantial evidence to corroborate the newspaper's contention on 8 June 2000 that the Municipality at the time held the view that Mr Rygh was in breach of the relevant residence requirements. This is an issue that should be determined in the light of the situation as it presented itself to Tønsberg Blad then, rather than with the benefit of hindsight (see Bladet Tromsø and Stensaas, cited above, § 66 ), offered by the revelations made subsequently that Mr Rygh's name did not actually appear on any list to be transmitted to the County Governor as described in the interview with the director of the Planning and Building Department. Although the High Court stressed in its judgment that the latter had been aware when talking to the journalist on 7 June 2000 that he had to carry out further checks, there is nothing to indicate that this awareness had been imparted to the journalist or that the latter had knowledge of it from any other source by the time of publication. Thus, whether or not at the time of publication the director of the Planning and Building Department and the mayor held an informed opinion cannot be decisive for the truth of the newspaper's allegation about the substance of the Municipality's opinion at that time. 100. It was only on 29 June 2000, when the journalist was informed about the exchanges between Mr Rygh and the Municipality's Chief Executive Officer, that the Municipality made the journalist aware of its position as to how the provisions of the Concession Act ought to be interpreted and applied in relation to properties such as that used by Mr Rygh. When contacted by the journalist before publication of the disputed newspaper report, Mr Rygh had not offered any comments beyond stating that there must have been a misunderstanding as to the inclusion of his name on the list to be transmitted to the County Governor (see paragraph 15 above). 101. In these circumstances, the journalist cannot in the Court's view be blamed for not having ascertained for himself, before reporting on the Municipality's opinion on 8 June 2000, whether the residence requirements were applicable to the property used by Mr Rygh. On the contrary, having regard to the relatively minor nature and limited degree of the defamation at issue and the important public interests involved, the Court is satisfied that the newspaper took sufficient steps to verify the truth of the disputed allegation and acted in good faith. 102. Nonetheless, the applicants had to defend their cause in judicial defamation proceedings pursued at three judicial levels. The outcome was that the statements were declared null and void and the applicants were ordered to pay the plaintiff NOK 50,000 in compensation for non-pecuniary damage and to reimburse him NOK 673,829 for his legal expenses (see paragraphs 36 and 38 above), in addition to bearing their own costs. In the circumstances, the proceedings resulted in an excessive and disproportionate burden being placed on the applicants, which was capable of having a chilling effect on press freedom in the respondent State. 103. In short, the reasons relied on by the respondent State, although relevant, are not sufficient to show that the interference complained of was “necessary in a democratic society”. The Court considers that there was no reasonable relationship of proportionality between the restrictions placed by the measures applied by the Supreme Court on the applicants'right to freedom of expression and the legitimate aim pursued. Accordingly, there has been a violation of Article 10 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 104. 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 105. The applicants did not seek an award for non-pecuniary damage but requested compensation for the pecuniary damage which they had suffered as a result of the Supreme Court's judgment of 1 July 2003 ordering them to pay to Mr Rygh NOK 50,000 in compensation for non-pecuniary damage and NOK 673,829 for his costs and expenses (corresponding altogether to approximately 90,000 euros (EUR ) ). 106. The Government did not offer any comment beyond stating that the finding of a violation constituted the primary remedy under the Convention. 107. The Court is satisfied that there is a causal link between the damage claimed and the violation of the Convention it has found, and awards the applicants EUR 90,000 under this head. B. Costs and expenses 108. The applicants also claimed NOK 1,082,033 ( corresponding approximately to EUR 135,000 ) for the costs and expenses incurred before the domestic courts and NOK 896,928 (approximately EUR 112,000, not inclusive of value - added tax – “VAT”) for those incurred before the Court. 109. The Government did not offer any comments on the above beyond stating that they had no reason to doubt the amounts. 110. According to the Court's case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the above criteria and the information in its possession, notably the absence of details as to the number of hours worked and the rate charged per hour, the Court is not convinced that all the costs incurred in the Strasbourg proceedings were necessarily incurred and were reasonable as to quantum. Making an assessment on an equitable basis, the Court awards the applicants EUR 35 ,000 for the proceedings before it (inclusive of VAT). The claim for costs and expenses in the domestic proceedings should be awarded in its entirety. C. Interest incurred during the proceedings before the national courts and the Court 111. The applicants in addition claimed various sums totalling NOK 256,11 5 (corresponding approximately to EUR 32 ,000) in simple interest, at estimated average rates ( 4% ) applied by domestic commercial banks at the material time, on the sums they had paid in respect of damages and domestic costs and expenses, covering the period until 31 December 2006. 112. The Government did not offer any comments on the above beyond stating that they had no reason to doubt the amounts. 113. The Court finds that some pecuniary loss must have been occasioned by reason of the periods that elapsed from the time when the various sums were paid and the costs incurred until the Court's present award of just satisfaction (see, for example, Bladet Tromsø and Stensaas, cited above, § 83; Nilsen and Johnsen v. Norway [GC], no. 23118/93, § 65, ECHR 1999 ‑ VIII; and Bergens Tidende and Others, cited above, § 70). Making its assessment on an equitable basis, it awards the applicants EUR 20,000 with respect to their claim under this head. D. Default interest 114. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 10 (freedom of expression) of the Convention, finding that the reasons relied on by the Norwegian authorities, although relevant, had not been sufficient to show that the interference complained of had been necessary in a democratic society. There had been no reasonable relationship of proportionality between the restrictions on the applicants’ right to freedom of expression and the legitimate aim pursued, namely the protection of the rights and reputation of the industrialist. In this regard, the Court noted in particular that the article had not set out to damage the industrialist’s reputation, but to illustrate a problem which the public had an interest in being informed about. Nor did the article relate exclusively to his private life, as it concerned a possible failure by a public figure to observe laws and regulations whose purpose was to protect serious public interests, albeit in the private sphere. |
579 | Expulsion or extradition cases | II. RELEVANT LAW and practice A. Administrative law provisions 22. Article 125 of the Turkish Constitution provides, inter alia : “All acts or decisions of the authorities are subject to judicial review ... If the implementation of an administrative act would result in damage which is difficult or impossible to compensate, and at the same time this act is clearly unlawful, a stay of execution may be decided upon, stating the reasons therefor ...” 23. Article 155 of the Constitution states, inter alia : “The Supreme Administrative Court is the final instance for reviewing decisions and judgments given by administrative courts. It shall also be the first and last instance for dealing with specific cases prescribed by law. ...” 24. Article 5 of the Code on the establishment and duties of tax courts, administrative courts and regional administrative courts (no. 25765) provides, inter alia : “Administrative courts deal with: (a) actions for annulment (b) administrative actions (c) ... except for those actions which are within the competence of tax courts and those which should be dealt with by the Supreme Administrative Court as a first-instance court.” 25. Article 25 of the Act on the Supreme Administrative Court provides: “Final decisions rendered by the administrative courts and the tax courts, as well as final decisions rendered by the Supreme Administrative Court acting as a first-instance court may be appealed to and dealt with by the Supreme Administrative Court.” B. The law and practice governing asylum-seekers 26. Turkey has ratified the Geneva Convention and the 1967 Protocol thereto. It has exercised the geographic preference option under the 1951 Convention in order to limit the grant of refugee status to asylum-seekers from European countries. For humanitarian reasons, Turkey issues temporary residence permits to asylum-seekers from non-European countries who are recognised by the UNHCR as refugees pending their resettlement in a third country by that organisation. 27. The Ministry of the Interior issued a regulation on 30 November 1994 concerning asylum-seekers seeking asylum in Turkey or who are to be resettled in a third country. According to this Regulation, foreign nationals arriving in Turkey to seek asylum must submit their asylum application to the police within five days of their arrival in Turkey. Those who enter illegally are required to submit their application to the police at the border town nearest the point where they entered the country. Asylum-seekers entering the country legally may submit their application to the police in any city within five days of their arrival. 28. A person who enters Turkey illegally and does not apply to the Turkish authorities within five days of his or her entry cannot be accepted as a refugee. 29. Asylum requests are examined by the Ministry of the Interior. Non-European asylum-seekers who receive a positive decision may then submit their cases to the UNHCR for resettlement. The Ministry of the Interior considers the merits of an asylum application from the standpoint of Turkey ’s obligations under the Geneva Convention and has regard to the opinions of the Ministry of Foreign Affairs and other relevant ministries and agencies. Foreigners whose requests are not accepted are liable to be deported by the local authorities. 30. An amendment was introduced to the 1994 Asylum Regulation in January 1999. According to the amendment, the five-day period in which to lodge an asylum request has now been increased to ten days. Furthermore, an asylum-seeker whose application has been refused may now appeal within fifteen days of the refusal to the competent governorship. The appeal is to be assessed by the superior of the official who took the initial decision to refuse asylum. C. Recent international materials commenting on the punishment of adultery in Iran 31. In its 1999 Annual Report, Amnesty International concluded that judicial punishments amounting to torture or cruel, inhuman or degrading punishment continued to be reported. Flogging was reportedly imposed for a wide range of offences, at times in conjunction with the death penalty or a custodial sentence. An Iranian woman, the co-accused of a foreign businessman, was reportedly sentenced to 100 lashes in October 1999 after she was convicted of illicit sexual relations. It was unknown whether the sentence was carried out. In November 1999 an Iranian national was acquitted after he escaped from the pit in which he had been buried to the waist in order to be stoned to death in the town of Lahijan. He had been sentenced to death for adultery. 32. The 1999 Country Reports on Human Rights Practices, released on 25 February 2000 by the US Department of State, mention, with reference to Iran, that harsh punishments are carried out, including stoning and flogging. Article 102 of the Islamic Penal Code details the methods authorities should follow when conducting a stoning: “The stoning of an adulterer or adulteress shall be carried out while each is placed in a hole and covered with soil, he up to his waist and she up to a line above her breasts.” According to press accounts, a man was stoned to death in April 1999 in the town of Babol, which borders the Caspian Sea. He was alleged to have killed three of his own sons. Prior to the stoning, he received sixty lashes. The first stone was cast by the judge who sentenced him to death. The law also allows for the relatives of murder victims to take part in the execution of the killer. THE LAW I. Alleged violation of article 3 of the convention 33. The applicant maintained that her removal to Iran would expose her to treatment prohibited by Article 3 of the Convention, which provides: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 34. The applicant stated that she had committed adultery in Iran and had to leave before criminal proceedings could be brought against her. She submitted that she would probably have been prosecuted and sentenced to a form of inhuman punishment. In support of her assertion the applicant relied on, inter alia, reports prepared by Amnesty International which refer to cases of women in Iran having been stoned to death for having committed adultery. She stressed that she was granted refugee status by the UNHCR on the ground that she had a well-founded fear of persecution as she belonged to a particular social group, namely women who have transgressed social mores according to the UNHCR guidelines on gender-based persecution. 35. The applicant further claimed that, bearing in mind the established case-law of the Court, stoning to death, flogging and whipping, which are penalties prescribed by Iranian law for the offence of adultery, must be considered forms of prohibited treatment within the meaning of Article 3 of the Convention. 36. The Government maintained in reply that when becoming a Contracting Party to the 1951 Geneva Convention relating to the Status of Refugees (“the Geneva Convention”), Turkey had availed itself of the geographic preference option in the Convention to give preference to asylum-seekers from European countries (see paragraph 26 above). However, for humanitarian reasons the authorities issue temporary residence permits to non-European asylum-seekers like the applicant who are recognised as refugees by the UNHCR pending their resettlement in a third country. Given that the applicant failed to comply with the five-day requirement under the 1994 Asylum Regulation (see paragraphs 27-28 above), this facility could not be extended to her. 37. The Government further questioned the substance of the applicant’s fears. In their opinion the fact that the applicant failed to make an application to the authorities or to the UNHCR when she arrived in Turkey in 1997 was at variance with her allegations under Article 3 of the Convention. It was also significant that she did not claim asylum status when she arrived at the airport in Paris (see paragraph 14 above). In the Government’s view, it must be doubted whether the applicant would ever have sought refugee status if she had managed to enter Canada. 38. The Court recalls 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. Moreover, the right to political asylum is not contained in either the Convention or its Protocols (see the Vilvarajah and Others v. the United Kingdom judgment of 30 October 1991, Series A no. 215, p. 34, § 102). However, it is well established in the case-law of the Court that expulsion by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person in question, if expelled, would face a real risk of being subjected to treatment contrary to Article 3 in the receiving country. In these circumstances, Article 3 implies the obligation not to expel the person in question to that country (see the Soering v. the United Kingdom judgment of 7 July 1989, Series A no. 161, pp. 35-36, §§ 90-91; the Cruz Varas and Others v. Sweden judgment of 20 March 1991, Series A no. 201, p. 28, §§ 69-70; and the Chahal v. the United Kingdom judgment of 15 November 1996, Reports of Judgments and Decisions 1996-V, p. 1853, §§ 73-74). 39. The Court further observes that, having regard to the fact that Article 3 enshrines one of the most fundamental values of a democratic society and prohibits in absolute terms torture or inhuman or degrading treatment or punishment, a rigorous scrutiny must necessarily be conducted of an individual’s claim that his or her deportation to a third country will expose that individual to treatment prohibited by Article 3 (see, mutatis mutandis, the Chahal judgment cited above, p. 1855, § 79, and p. 1859, § 96). 40. The Court is not persuaded that the authorities of the respondent State conducted any meaningful assessment of the applicant’s claim, including its arguability. It would appear that the applicant’s failure to comply with the five-day registration requirement under the Asylum Regulation 1994 denied her any scrutiny of the factual basis of her fears about being removed to Iran (see paragraph 16 above). In the Court’s opinion, the automatic and mechanical application of such a short time-limit for submitting an asylum application must be considered at variance with the protection of the fundamental value embodied in Article 3 of the Convention. It fell to the branch office of the UNHCR to interview the applicant about the background to her asylum request and to evaluate the risk to which she would be exposed in the light of the nature of the offence with which she was charged. The Ankara Administrative Court, on her application for judicial review, limited itself to the issue of the formal legality of the applicant’s deportation rather than the more compelling question of the substance of her fears, even though by that stage the applicant must be considered to have had more than an arguable claim that she would be at risk if removed to her country of origin. 41. The Court for its part must give due weight to the UNHCR’s conclusion on the applicant’s claim in making its own assessment of the risk which the applicant would face if her deportation were to be implemented. It is to be observed in this connection that the UNHCR interviewed the applicant and had the opportunity to test the credibility of her fears and the veracity of her account of the criminal proceedings initiated against her in Iran by reason of her adultery. It is further to be observed that the Government have not sought to dispute the applicant’s reliance on the findings of Amnesty International concerning the punishment meted out to women who are found guilty of adultery (see paragraph 34 above). Having regard to the fact that the material point in time for the assessment of the risk faced by the applicant is the time of its own consideration of the case (see the Chahal judgment cited above, p. 1856, § 86), the Court is not persuaded that the situation in the applicant’s country of origin has evolved to the extent that adulterous behaviour is no longer considered a reprehensible affront to Islamic law. It has taken judicial notice of recent surveys of the current situation in Iran and notes that punishment of adultery by stoning still remains on the statute book and may be resorted to by the authorities (see paragraphs 31-32 above). 42. Having regard to the above considerations, the Court finds it substantiated that there is a real risk of the applicant being subjected to treatment contrary to Article 3 if she were to be returned to Iran. Accordingly, the order for her deportation to Iran would, if executed, give rise to a violation of Article 3. II. alleged violation of article 13 of the convenTion 43. The applicant further complained that she did not have an effective remedy to challenge the decision whereby her application for asylum was rejected as being out of time. She averred that this amounted to a breach of 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.” 44. The applicant maintained that since her application for asylum was out of time she was never afforded an opportunity to explain to the authorities why she feared deportation to Iran. There was no appeal against the rejection of her asylum application. Furthermore, her action before the Ankara Administrative Court could not be considered an effective remedy since that court could not suspend the deportation decision with immediate effect. The court did not give detailed reasons for its decision not to suspend the applicant’s deportation since the decision was an interim one and a separate decision would have been required. 45. The Government acknowledged that the Ankara Administrative Court rejected the applicant’s request for suspension and annulment of the deportation order. However, she failed to request the annulment of the decision rejecting her asylum request. The Ankara Administrative Court was bound to dismiss the applicant’s request with regard to her deportation since no such order had as yet been made. 46. With reference to the provisions of Article 125 of the Constitution (see paragraph 22 above), the Government maintained that the domestic courts are empowered to stay the execution of an administrative act if irreversible harm would be caused to a plaintiff and the act is clearly unlawful. Furthermore, an appeal from the decision of an administrative court lies to the Supreme Administrative Court (see paragraph 25 above). 47. For these reasons, the Government contended that the applicant had an effective remedy to challenge her deportation. 48. The Court recalls that 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. The effect of this Article 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. Moreover, in certain circumstances the aggregate of remedies provided by national law may satisfy the requirements of Article 13 (see the Chahal judgment cited above, pp. 1869-70, § 145). 49. The Court reiterates that there was no assessment made by the domestic authorities of the applicant’s claim to be at risk if removed to Iran. The refusal to consider her asylum request for non-respect of procedural requirements could not be taken on appeal. Admittedly the applicant was able to challenge the legality of her deportation in judicial review proceedings. However, this course of action entitled her neither to suspend its implementation nor to have an examination of the merits of her claim to be at risk. The Ankara Administrative Court considered that the applicant’s deportation was fully in line with domestic law requirements. It would appear that, having reached that conclusion, the court felt it unnecessary to address the substance of the applicant’s complaint, even though it was arguable on the merits in view of the UNHCR’s decision to recognise her as a refugee within the meaning of the Geneva Convention. 50. In the Court’s opinion, given the irreversible nature of the harm that might occur if the risk of torture or ill-treatment alleged materialised and the importance which it attaches to Article 3, the notion of an effective remedy under Article 13 requires independent and rigorous scrutiny of a claim that there exist substantial grounds for fearing a real risk of treatment contrary to Article 3 and the possibility of suspending the implementation of the measure impugned. Since the Ankara Administrative Court failed in the circumstances to provide any of these safeguards, the Court is led to conclude that the judicial review proceedings relied on by the Government did not satisfy the requirements of Article 13. Accordingly, there has been a violation of Article 13 of the Convention. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 51. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 52. The applicant stated in her application form that she sought just satisfaction for the violation of her rights. She repeated this request in her pre-admissibility submissions dated 17 June 1999. No details of her claims under Article 41 of the Convention were supplied. 53. The Government did not explicitly address the applicant’s requests at any stage of the proceedings. 54. The Court considers that in the circumstances of the instant case a finding of a potential violation of Article 3 of the Convention and an actual violation of Article 13 of the Convention constitutes in itself sufficient just satisfaction for any non-pecuniary damage that the applicant may have suffered. B. Costs and expenses 55. In her application form the applicant stated that she sought the payment of her costs and expenses for bringing the Convention proceedings. No details of her claims under Article 41 of the Convention were supplied. The applicant received the sum of 5,000 French francs (FRF) by way of legal aid from the Council of Europe. 56. The Government made no submissions under this head either. 57. The Court observes that, in the absence of details of the applicant’s claim under this head, the sum received by the applicant by way of legal aid from the Council of Europe (FRF 5,000) can be considered to cover adequately any costs and expenses incurred in connection with the Convention proceedings. | The Court decided to apply Rule 39 of the Rules of Court, requesting the Turkish Government to refrain from deporting the applicant pending the outcome of the proceedings before it. The application of Rule 39 was lifted when the Court’s judgment finding that the implementation of the deportation order against the applicant would give rise to a violation of Article 3 of the Convention became final. |
315 | Prevention of terrorism | 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 held that there had been no violation of Article 11 (freedom of assembly and association) of the Convention. With regard in particular to the proportionality of the dissolution measure, the fact that the applicants’ projects were in contradiction with the concept of “a democratic society” and entailed a considerable threat to Spanish democracy led the Court to hold that the sanction imposed on the applicants had been proportional to the legitimate aim pursued, within the meaning of Article 11 § 2 of the Convention. |
441 | Medical assistance for prisoners with a physical illness | II. RELEVANT DOMESTIC LAW A. Constitution 73. Article 46 (III) of the Constitution of the Republic of Azerbaijan provides as follows: “No one shall be subjected to torture or ill-treatment. No one shall be subjected to degrading treatment or punishment. ...” B. Law of 14 July 2000 on the Adoption and Entry into Force of the Code of Criminal Procedure of the Republic of Azerbaijan 74. Article 7 of the law provides as follows : “Judgments and other final decisions delivered by first-instance courts under the [old] Code of Criminal Procedure ... before the entry into force of this [new] Code, may be reconsidered by an appellate court or the Supreme Court of the Republic of Azerbaijan in accordance with Articles 383-407, 409-427 or 461-467 of the [new] Code of Criminal Procedure.” C. Code of Criminal Procedure of the Republic of Azerbaijan of 1 September 2000 75. According to Article 27, criminal proceedings in all courts shall be open to the general public, except where it is necessary to protect state, professional or commercial secrets, as well as personal or family secrets of individuals. Article 392.1.6 provides that, during a preliminary hearing, the appellate court decides whether the merits of the appellate complaint will be examined in a public or closed hearing. The Code specifies a number of situations where the public can be excluded from the hearing, such as in cases involving evidence disclosing personal or family secrets (Article 199.4), or a state secret (Article 200.4), or a professional or commercial secret (Article 201.6). III. RELEVANT INTERNATIONAL REPORTS AND DOCUMENTS A. Concerning the healthcare situation in Azerbaijani prisons 76. The following are the extracts from the Standards of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT ) ( CPT/ Inf /E (2002) 1 - Rev. 200 6, pp. 30 ‑ 31), in the part concerning healthcare services in prisons: “ 34. While in custody, prisoners should be able to have access to a doctor at any time, irrespective of their detention regime. ... The health care service should be so organised as to enable requests to consult a doctor to be met without undue delay. ... 35. A prison's health care service should at least be able to provide regular out ‑ patient consultations and emergency treatment (of course, in addition there may often be a hospital-type unit with beds). ... As regards emergency treatment, a doctor should always be on call. Further, someone competent to provide first aid should always be present on prison premises, preferably someone with a recognised nursing qualification. Out-patient treatment should be supervised, as appropriate, by health care staff; in many cases it is not sufficient for the provision of follow-up care to depend upon the initiative being taken by the prisoner. ... 38. A prison health care service should be able to provide medical treatment and nursing care, as well as appropriate diets, physiotherapy, rehabilitation or any other necessary special facility, in conditions comparable to those enjoyed by patients in the outside community. Provision in terms of medical, nursing and technical staff, as well as premises, installations and equipment, should be geared accordingly. There should be appropriate supervision of the pharmacy and of the distribution of medicines. Further, the preparation of medicines should always be entrusted to qualified staff (pharmacist/nurse, etc.) .” 77. The CPT report on the 2002 visit to Azerbaijan provides as follows : “119. ... the brief visit to the Specialised medical establishment No. 3 for prisoners suffering from tuberculosis was of a targeted nature, and focused on the ward for prisoners with multi-resistant tuberculosis. Set up in 1998, the establishment receives for treatment both remand and sentenced prisoners diagnosed to be BK-positive. The treatment continues up to 9 months along the lines of the WHO-recommended DOTS strategy, in close co-operation with the ICRC. ... At the time of the visit, the establishment had a capacity of 850 places distributed into six wards; two new wards – one for women, with 14 places, and another for men, with 88 places - had been inaugurated days before the delegation's visit. The delegation observed that the new wards were of a very high standard. 120. Prisoners with multi-resistant tuberculosis were accommodated in Ward 5, which was holding 145 inmates at the time of the visit, for an official capacity of 200. Some of them had been there since 1998. The delegation was informed that upon the expiry of their sentences, multi-resistant prisoners would be referred to specialised establishments under the Ministry of Health. ... Conditions in the ward were satisfactory: the dormitories were spacious, clean, well-lit and ventilated. ... 121. At the outset of the visit, the ward's head doctor informed the delegation that multi-resistant patients received only symptomatic treatment (e.g. vitamins). The DOTS+ treatment had not yet been introduced, although the Ministry of Justice, in co ‑ operation with the ICRC, was apparently working on this issue. However, it subsequently emerged that some 30 to 40% of the prisoners in the ward were receiving tuberculostatic medicines utilised in case of multi-resistance, which were being provided by their families. At the same time, the rest of the prisoners – who had lost contact with their families or had no financial resources – did indeed receive only symptomatic medication. Such an inequitable situation has the potential of inciting conflicts between inmates. Further, in the absence of a psychologist employed at the establishment, prisoners could not benefit from the psychological support necessary in their situation.” 78. The following are the extracts from Treatment of Tuberculosis: Guidelines for National Programmes, World Health Organisation, 1997, pp. 27 and 41 : “Treatment regimens [for new cases] have an initial (intensive) phase lasting 2 months and a continuation phase usually lasting 4-6 months. During the initial phase, consisting usually of 4 drugs, there is rapid killing of tubercle bacilli. Infectious patients become non-infectious within about 2 weeks. Symptoms improve. The vast majority of patients with sputum smear-positive TB become smear-negative within 2 months. In the continuation phase fewer drugs are necessary but for a longer time. The sterilizing effect of the drugs eliminates remaining bacilli and prevents subsequent relapse. ... Directly observed treatment is one element of the DOTS strategy, i.e. the WHO recommended policy package for TB control. Direct observation of treatment means that a supervisor watches the patient swallowing the tablets. This ensures that a TB patient takes the right drugs, in the right doses, at the right intervals.” 79. The relevant extracts from Azerbaijan Health Sector Review Note, World Bank, Volume II: Background Papers (Report No. 31468-AZ, June 30, 2005) provide : “Communicable diseases, particularly TB, continue to be a health threat in the country. While non-communicable diseases, accidents, injuries and poisonings represent most of the disease burden in Azerbaijan, communicable diseases – which were decreasing in the late 1980s – re-emerged in the mid-1990s, including tuberculosis (TB), sexually transmitted illnesses ( STIs ), malaria, diphtheria and new diseases such as HIV/AIDS. This trend is consistent with experience of [other former Soviet Union ] countries since 1990. According to official statistics, deaths from infectious diseases in 2002 accounted for 3 percent of total deaths, with men three times more affected than women. ... official statistics indicate that there has been a reduction in mortality due to communicable diseases since the late-1990s. The reduction has brought this type of mortality to a level slightly below that of 1990, but still 2.5 times higher than that of Western European countries. This reported reduction may be explained by the diphtheria outbreak that occurred in 1995, when deaths from infectious diseases peaked. However, when one examines major diseases such as TB, gonorrhea, syphilis and malaria, rates of infection have been steady and/or have actually increased. ... The incidence of TB has almost doubled since 1990 and is now six times higher than the EU-15 average. While not as high as that of Kazakhstan and the Kyrgyz Republic, the incidence of TB continues to grow in Azerbaijan ... For example, according to the WHO Global TB Control Report, there were an estimated 109 prevalent cases per 100,000 population in 2003, with a case fatality rate of 14 percent ... In addition, multi-drug resistant tuberculosis (MDR-TB) has been identified as a substantial problem in the prison population ... ” 80. The following are findings contained in the pilot study of tuberculosis treatment in Azerbaijani prisons – Gaby E. Pfyffer et al., Multidrug-Resistant Tuberculosis in Prison Inmates, Azerbaijan, Emerging Infectious Diseases, Vol. 7, No. 5, September-October 2005: “According to the International Committee of the Red Cross (ICRC), the total number of inmates in the Azerbaijan prison system is approximately 25,000. With 4,667 TB [i.e. tuberculosis] cases per 100,000, the incidence in Azeri prisons is nearly 50 times higher than the country average, and the mortality rate may reach 24%. ... Except for two patients [out of 65 examined] in whom the first symptoms of TB had appeared 9 and 20 years previously, the patients had recent onset of TB disease ... Most prisoners were substantially undernourished (as indicated by low body mass indices) and in poor clinical condition, many with unilateral or bilateral pulmonary infiltrates and cavities. Most of the nonresponding patients ... had been treated inadequately before the ICRC intervention. ... Analyzing the TB patients in the Central Penitentiary Hospital in Baku was complicated by constraints and biases inherent in the prison environment. Clinical information on the prisoners was limited and mainly based on self-reported data. Conclusions based on analysis of 65 of the approximately 300 TB patients in that hospital are largely fragmentary and may not be truly representative. However, enrolling more patients into our pilot study was not considered, mainly because of frequent transfer of prisoners and high mortality rates. When the DOTS program was implemented by the ICRC, many of the TB patients were either untreated or had received inadequate drug regimens for years.” B. Concerning the applicant's criminal case 81. Resolution 1305 (2002)1 of the Parliamentary Assembly of the Council of Europe on honouring of obligations and commitments by Azerbaijan, provides as follows : “ ii. The Assembly is aware that new trials of persons considered by the experts as political prisoners have started. It is concerned with reports of blatant violations of their procedural and other rights. It reiterates that these trials should respect all provisions for a fair trial as defined in the European Convention on Human Rights, including that they be accessible to journalists. It considers that these trials, which started several months ago, should not be dragged out for a long period and must be concluded rapidly .” 82. Political prisoners in Azerbaijan, Report of the Parliamentary Assembly Committee on Legal Affairs and Human Rights, Rapporteur Mr Clerfayt, 6 June 2003, Doc. 9826, provides : “ 44. This concerns the cases of Iskander Gamidov (test case no 1), Alikram Gumbatov [sic] (test case no 2), and Raqim Gaziyev (test case no 3) ... 46. In its Resolution 1272 (2002), paragraph 8, the Assembly had asked Azerbaijan “to give renewed consideration to the political expediency of releasing them”. Instead, new trials were begun of these three recognised political prisoners, following a decision to this effect by the Prosecutor General on 26 December 2001; on the day of writing this report, these trials had not been completed. They are being held in the high security prison in Gobustan. 47. Since I was appointed as a member (Chairperson) of the Joint Working Group in charge of the implementation of Resolution 1272 (2002), I have been able to meet these three symbolic prisoners on two occasions (except for I. Gamidov ), as well as their lawyers. I already visited them when I was Rapporteur for accession between 1998 and 2000. I have been of the opinion for a long time, as is also the view of the experts, that they are undoubtedly political prisoners. ... 49. The trial of A. Gumbatov is also proceeding chaotically. The last sitting in his trial, scheduled for 19 May 2003, has been postponed on account of the main judge's indisposition, and no new date has been announced. ... 51. We believe that these retrials, which in reality are appeals disguised as new trials, fall short, as far as the procedure is concerned, of the expectations expressed by the Assembly in its last report on political prisoners in Azerbaijan. The judicial investigation should have been started again from the beginning, and the accusations made against the defendants should not be lifted purely and simply from the previous trials, since the former judgments are currently still in force and consequently the three prisoners do not benefit from the presumption of innocence. Moreover, since these trials are being held in prison (in Gobustan, far from Baku ), it is not easy for people to attend. Finally, in some cases, witnesses called by the defence were refused by the court. ” 83. Report on the International Mission of Judicial Observation, issued by the International Federation of Human Rights Leagues in November 2002, provides as follows : “The international mission took place from 4 to 9 July 2002 in Baku. It was made up of Laurence Roques and Christine Martineau, attorneys at law with the Creteil and Paris Bars. The goal of the mission was to monitor the trial of three political prisoners, Messrs. Iskander Gamidov, Alikram Gumbatov [ sic ] and Raquim Gaziyev, who were being re-tried. ... The mission was able to attend only two hearings, one on July 5 for Gamidov, the other on July 8 for Gumbatov [ sic ], after asking the President of the Appeal Court for authorization. ... [H] earings take place in a specially equipped prison cell that includes a few benches for the audience and legal staff, but can only hold about twenty people, the others having to wait outside. The [defendant is] locked up in a cage under strict supervision. ... The location of the trials is very difficult to access. The Gobustan prison is two hours away from Baku, and there is no public transport to get there. Each time, the judges, lawyers, families of prisoners and audience have to travel two hours to get to the prison and use their own means of transport, which is very costly. Conditions of access are those of a prison. Only people who have been authorized by the President of the Appeal Court can attend hearings. Two controls are carried out before entering the courtroom. Cell phones are confiscated at the entrance, and handed back at the end of session. According to the Minister of Justice, [hearing is] public, since any person who wishes to attend can [do so] and even “international organisations” have been allowed in. In practice, the press and families often have to protest outside the courtroom because they are not allowed in. Journalists are carefully selected. During the first hearing the mission attended, journalist called out to the President to complain that colleagues, in particular journalists from television, had not been let in.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 84. The applicant complained that he had received inadequate medical treatment in prison. Article 3 of the Convention provides as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. The Government's preliminary objection 85. In the admissibility decision of 18 May 2006, the Court decided to join to the merits the determination of the Government's objection concerning the exhaustion of domestic remedies. 86. The Government argued that the complaint should be rejected on the ground of non- exhaustion of domestic remedies because the applicant had failed to pursue his compensation claim before the domestic courts. On 10 November 2004 the Sabail District Court discontinued the proceedings due to the applicant's or his lawyer's failure to appear before the court without a good reason. 87. The applicant disagreed, noting that he had repeatedly addressed his complaints concerning the lack of adequate medical treatment to various authorities, including inter alia the prison authorities, the prison's medical staff and the chairman of the Court of Appeal. All these attempts were fruitless and did not result in better medical care. As to the civil action in the domestic courts, the applicant argued that, although he had tried to make use of this avenue of redress, a post factum civil action for damages could not be considered as an effective remedy because it could not restore his health and lead to the improvement of his deteriorated health condition. 88. The applicant submitted that, prior to 5 January 2001, he had been unable to file any judicial complaints because he had not been allowed to possess any writing material in the prison. In 2001 he finally succeeded in filing a complaint with the local court through his lawyer, but the court refused to accept it for unspecified reasons. In 2004, despite his repeated attempts to have his new civil complaint examined, the domestic courts either simply ignored his petitions and appeals, or unduly delayed their consideration, or rejected them “without giving any assessment as to the reasons invoked”. By the time the Sabail District Court issued its decision on discontinuation of the proceedings on 10 November 2004, he had already been in the Netherlands for more than two months and had no lawyer in Baku. No summons had been sent to him or his former lawyer for the hearing of 10 November 2004. Moreover, the applicant disputed the authenticity of the Sabail District Court's decision of 10 November 2004, claiming that this decision referred to someone with the last name “ Huseynov ” and not him, and that he had never been notified of this decision. 89. Finally, the applicant noted that the Government failed to provide at least one specific example where a civil action similar to the applicant's had ever been successful. He maintained that the State authorities constantly tolerated various violations of rights of “political prisoners”, including the lack of medical treatment in prisons. Thus, in the applicant's opinion, there was an administrative practice which rendered illusory, inadequate and ineffective any remedies theoretically available to “political prisoners”. 90. The Court reiterates that 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 both 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. 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 Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports of Judgments and Decisions 1996 ‑ IV, p. 1211, § 68 ). 91. Furthermore, the Court emphasises that the rule of exhaustion of domestic remedies must be applied with some degree of flexibility and without excessive formalism. This rule is neither absolute nor capable of being applied automatically. In reviewing whether it has been observed, it is essential to have regard not only to the existence of formal remedies in the legal system of the State concerned, but also to the general legal and political context in which they operate, as well as the particular circumstances of the individual case. This means, inter alia, that the Court must examine whether, in all the circumstances of the case, the applicant did everything that could reasonably be expected of him or her to exhaust available domestic remedies (see Melnik v. Ukraine, no. 72286/01, § 67, 28 March 2006, and Ivanov v. Azerbaijan (dec.), no. 34070/03, 15 February 2007). 92. The Court notes that it is not disputed that, on numerous occasions, the applicant complained to the prison administration, the prison doctors and other authorities about his health problems and that the authorities were aware that the applicant had contracted tuberculosis and suffered from a number of other diseases. The authorities were thereby made sufficiently aware of the applicant's situation and had an opportunity to offer redress as appropriate (compare with Melnik, cited above, § 70 ). Moreover, in so far as it can be discerned from the Government's submissions, they contended that instituting a civil action in the domestic courts was capable of providing adequate redress for the alleged violation in the present case. Although the Court has found previously that a civil action was a remedy theoretically available in Azerbaijan in respect of conditions of detention (see, for example, Mammadov (Jalaloglu) v. Azerbaijan, no. 34445/04, § § 51-52, 11 January 2007, and Kunqurova v. Azerbaijan (dec.), no. 5117/03, 3 June 2005 ), the applicant's present complaint does not concern the conditions of detention in general, but concerns specifically the lack of adequate medical treatment. However, assuming for the purposes of the present complaint that the civil action was a remedy theoretically applicable to the applicant in respect of his specific complaint, the Court considers, for the following reasons, that he should be deemed to have exhausted it in the practical circumstances of his individual case. 93. In March 2004 the applicant filed a lawsuit seeking compensation for the inadequate medical treatment he had received in prison. This lawsuit, however, was never examined on the merits by the domestic courts. Having regard to the circumstances of the case, the Court considers that the examination of the lawsuit at the domestic level had been artificially and unnecessarily delayed. The applicant's complaint was rejected several times for various formalistic reasons and on 7 May 2004 was remitted for examination to the Sabail District Court, the same court to which the applicant had initially, and properly, submitted his complaint. Nevertheless, the merits of the complaint were again left unexamined for several months. Finally, only after the applicant had been released and had left the country, did the Sabail District Court decide on 20 October 2004 to hold a hearing on the merits on 10 November 2004. 94. The Court observes that the applicant's situation was peculiar in that the applicant was a well-known person in Azerbaijan and his criminal case received wide media coverage within the country and was routinely mentioned in the reports of various international organisations, most prominently the Council of Europe. More specifically, he topped the Council of Europe's list of “political prisoners” and, as such, his case was on the international political agenda of the Government for several years. Therefore, the Azerbaijani authorities and courts including the judges of the Sabail District Court were, or at least should have been, very well aware of the fact that, by 10 November 2004, the applicant had already been released from the prison, that his Azerbaijani citizenship had been terminated and that he had to leave the country. Moreover, although the manner in which the applicant lost his citizenship and left the country is outside of the scope of the matters to be examined by the Court in the present case, it appears that he had no other choice but to leave the country immediately after his release and that any attempt by him to return to Azerbaijan on short notice would not be easy. 95. Despite the above mentioned peculiarities of the applicant's situation, it appears that no measures were taken to ensure the applicant's presence and effective participation at the hearing. There is no evidence showing that he or his lawyer had been appropriately notified about the hearing in advance. The court formalistically decided to discontinue the proceedings as if it was a simple case of absence from the hearing without a good reason. It appears that, thereafter, the applicant had no information about the Sabail District Court's decision of 10 November 2004 and was therefore unable to challenge it in higher courts. Moreover, the Court observes that the decision of 10 November 200 4 referred to the claimant as “ Huseynov Alakram Alakbar oglu ”. The Government has not attempted to dispel the legitimate doubts as to the authenticity of this decision by offering any explanation or justification for this obvious discrepancy between the actual name of the applicant and the person mentioned in the decision of 10 November 2004. 96. Having regard to the above considerations, even assuming that the civil action was theoretically effective, the Court finds that, in the practical circumstances of the present case, the applicant has done as much as could reasonably be expected of him to exhaust available domestic remedies but was not provided with a possibility to obtain effective redress from the domestic authorities. 97. The Court therefore rejects the Government's preliminary objection. B. Merits 1. The parties'submissions 98. The Government submitted that, generally, the alleged lack of medical treatment could not be considered as amounting to torture or to inhuman or degrading treatment or punishment within the meaning of Article 3 of the Convention. Moreover, the Government argued that the applicant had been provided with all necessary medical treatment. Specifically, they noted that all of the applicant's requests for medical examination had been satisfied and that he had been regularly examined by the government doctors and provided with necessary in-patient and out-patient treatment. After the applicant's in-patient treatment in the specialised hospital for prisoners suffering from tuberculosis, his health condition stabilised and no deterioration in his state of health was observed thereafter. 99. The Government submitted copies of the applicant's medical records while in prison to show that the applicant had been under constant medical supervision. The Government considered the above evidence sufficient to prove that the applicant had received all necessary and appropriate medical treatment. 100. Moreover, the Government maintained that the HCA Opinion, submitted by the applicant in support of his allegations, had been prepared by a non-professional, “presented in an artificially bloated way and [was] completely ill-founded”. In the Government's view, this opinion relied on out-dated WHO standards for DOTS treatment and made wrong factual statements about the dosages of medications received by the applicant. Therefore, the HCA Opinion could not be trusted as reliable evidence. 101. The applicant disagreed, arguing that the authorities had knowingly and willingly contributed to a serious deterioration of his health and deprived him of adequate medical treatment from the moment of his arrest. Harsh prison conditions contributed to the significant aggravation of his diseases. Several medical examinations and sporadically provided treatment were inadequate and insufficient to cure these diseases. Although certain medication treatment was prescribed to him from time to time, he depended totally on financial support from his relatives to provide him with the necessary medicines. He also noted that his relatives had to bribe the prison administration in order to ensure his medical treatment in May 1997. 102. The applicant contested the veracity of the medical documents submitted by the Government, arguing that these documents were unreliable, did not reflect his actual state of health while in prison, and were drawn up by “non-objective” prison doctors and other medical staff who were not independent. The applicant largely relied on the findings and conclusions contained in the HCA Opinion, and considered this document to be more reliable than the voluminous medical records provided by the Government. He noted that this report was clear as to the inadequacy of the prison doctors'diagnoses of the applicant's condition, the inadequacy of the treatment provided to him in prison as well as the denial of urgent medical treatment during the daily closure of his wing at the Gobustan Prison. These findings were corroborated by a number of reports of various international organisations on the prison conditions, poor state of medical assistance and the “deliberate obstruction” by the Azerbaijani authorities of medical aid, medication and food to political prisoners such as the applicant. 103. In the applicant's view, the continuous failure by the authorities to provide him with necessary medical care constituted inhuman and degrading treatment within the meaning of Article 3 of the Convention. 2. The Court's assessment ( a ) General principles 104. The Court reiterates that Article 3 of the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victim's behaviour (see, for example, Labita v. Italy [GC], no 26772/95, § 119, ECHR 2000-IV). Ill ‑ treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum 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). 105. Ill-treatment that attains such minimum level of severity usually involves actual bodily injury or intense physical or mental suffering. However, even in the absence of these, where treatment humiliates or debases an individual, showing a lack of respect for, or diminishing, his or her human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual's moral and physical resistance, it may be characterised as degrading and also fall within the prohibition of Article 3 (see Pretty v. the United Kingdom, no. 2346/02, § 52, ECHR 2002 ‑ III, with further references ). 106. A deprivation of liberty may often involve degrading elements. Yet it cannot be said that detention after conviction 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 person on health grounds or to place him in a civil hospital to enable him to obtain specific medical treatment. Nevertheless, under this provision the State must ensure that a person is detained in conditions which are compatible with respect for human dignity, that the manner and method of the execution of the measure do not subject him 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, §§ 92-94, ECHR 2000-XI, and Popov v. Russia, no. 26853/04, § 208, 13 July 2006 ). ( b ) Application to the present case 107. At the outset, the Court refers to its finding that the part of this complaint relating to the events that had occurred prior to 15 April 2002, the date of the Convention's entry into force with respect to Azerbaijan, was outside of the Court's competence ratione temporis (see Hummatov v. Azerbaijan (dec.), nos. 9852/03 and 13413/04, 18 May 2006). However, as the complaint concerns a situation of a continuing nature, namely the alleged lack of adequate medical treatment spanning a period of several years, the Court considers that it is necessary to have regard to the overall period in question, including the period prior to 15 April 2002, in order to properly assess the applicant's situation as it existed at the time of the Convention's entry into force with respect to Azerbaijan ( see, mutatis mutandis, Kalashnikov v. Russia, no. 47095/99, § 96, ECHR 2002 ‑ VI, and Khokhlich v. Ukraine, no. 41707/98, § § 166 and 187, 29 April 2003 ). 108. During the period of the applicant's imprisonment prior to 15 April 2002, he had been diagnosed as having a number of serious diseases which he had not suffered from prior to his arrest and detention. In particular, the applicant had no history of tuberculosis prior to his transfer to Bayil Prison. During a medical examination on 8 November 1995 in Investigative Isolator No. 1, it was specifically noted that the applicant was not suffering from tuberculosis. Likewise, no serious diseases were discovered during the period from 28 December 1995 to 3 June 1996 when he was detained in the detention facility of the Ministry of National Security. It was after his transfer to Bayil Prison in June 1996 that the first symptoms of tuberculosis started to appear. The Government did not dispute the applicant's submission that he had been placed in a cell together with other prisoners who were already seriously ill with the active form of tuberculosis. Arguably, starting at least from February 1997, the early symptoms of the disease, such as chest pains and significant loss of weight (see paragraph 33 above), began to manifest themselves. Finally, in April 1997 the applicant was diagnosed with pulmonary tuberculosis. Having regard to these factual circumstances of the case as well as the statistical estimations that the incidence of tuberculosis was very high in the Azerbaijani prisons at the material time, with some reports indicating that it was nearly 50 times higher than the country average (see paragraph 8 0 above), it is apparent that the applicant contracted tuberculosis in Bayil Prison. 109. The quality of the treatment provided to the applicant following the initial detection of tuberculosis, specifically during the period between 1997 and 200 2, appears to be inadequate. In particular, the evidence put before the Court shows that the applicant was given irregular symptomatic treatment without adhering to a strict medication regime necessary for the tuberculosis therapy. Although he was prescribed a number of anti ‑ bacteriological medications, the disease was still active for more than a year after the initial diagnosis. The medical records indicate that, subsequently, the disease went into remission in September 1998 but that the applicant's condition severely deteriorated in February 2000. The Court notes that only after the intervention by the representatives of the Azerbaijani National Committee of the Helsinki Citizens Assembly did the prison doctors acknowledge the re-activation of the disease and subsequently hospitalised the applicant. In general, although the applicant's medical records pertaining to this period contain a number of entries, it is not clear from these records whether there were regular check-ups on the applicant's condition, whether he was under constant medical supervision or whether medicines prescribed for the applicant were always correctly administered to him, with regard to the specified dosage, frequency and duration. 110. The applicant's treatment in the hospital from March to May 2000 lasted for 49 days, which was shorter than the two-month initial phase of the tuberculosis treatment recommended by WHO. Furthermore, it is not clear from the medical records whether the initial phase was followed up by the four-month or six-month continuation phase and, if so, whether the intake of medicines during this period was supervised as required by the DOTS strategy. Therefore, regardless of the outcome of the in-patient treatment which, according to the Government's medical records was positive, since the applicant was judged to have recovered, the evidence submitted by the Government is insufficient to establish that the in-patient treatment was adequate. In this respect, the Court also has regard to the HCA Opinion, which concluded that the applicant's in-patient treatment did not correspond to the DOTS standards. 111. Accordingly, by the time of the Convention's entry into force with respect to Azerbaijan, the applicant had already suffered for several years from a number of various diseases, including tuberculosis which he contracted due to bad conditions of detention in Bayil Prison where he had been detained prior to his transfer to Gobustan Prison. By that time, his overall health condition had deteriorated significantly. As from 15 April 2002, the date of the Convention's entry into force with respect to Azerbaijan, Article 3 of the Convention required the State authorities to adequately secure the applicant's health and well-being in Gobustan Prison (see paragraphs 10 4 -10 6 above). The Court shall, therefore, determine whether, after 15 April 2002, the applicant still needed regular medical assistance, whether he had been deprived of it as he claims and, if so, whether this amounted to inhuman or degrading treatment contrary to Article 3 of the Convention (see Sarban v. Moldova, no. 3456/05, § 78, 4 October 2005 ). 112. The medical records indicate that, at the time of the Convention's entry into force, the applicant still suffered from a number of serious medical conditions including inter alia chronic bronchopneumonia, chronic enterocolitis, radiculitis, hypertension, atherocardiosclerosis, internal haemorrhoids, stenocardia, ischemia, and osteochondrosis. He continued to suffer from focal tuberculosis which, according to the prison doctors, was no longer active since his in-patient treatment but, according to the HCA Opinion, acquired a chronic character with the possibility of relapse (see paragraph 59 above). The available evidence shows that the applicant became ill with the majority, if not all, of these diseases at one point or another during his imprisonment. The fact that the applicant suffered from such a large number of serious ailments and continued to complain about health problems until his release in September 2004 indicates that he still needed regular medical care during the period falling within the Court's competence ratione temporis. 113. The Court finds that, in the present case, there is convincing evidence giving rise to serious doubts as to the adequacy of the medical care provided to the applicant. In particular, the HCA Opinion reached the conclusion that, throughout the period from 1996 to the end of 2003, the applicant had received grossly inadequate medical treatment (see paragraphs 54-59 above). The Government contested the “professionalism” of the expert who authored the HCA Opinion. The Court notes, however, that this is the only independent comprehensive medical opinion available in the present case. It is not the Court's task to determine the accuracy of expert evaluations relating to a specific field of expertise such as the medicine and health sciences. The Government has neither procured nor submitted any independent or otherwise credible medical expert reports which would contradict the conclusions reached in the HCA Opinion or at least reveal the “non-professionalism” of the HCA expert in a convincing manner. In these circumstances, the Court accepts the conclusions arrived at in the HCA Opinion, in so far as they are relevant to the period after 15 April 2002. 114. The prison records submitted by the Government indicate that the applicant had been attended to a number of times throughout the years 2002 and 200 4 and had been prescribed medication. However, it does not appear that the applicant was attended by doctors on a regular or systematic basis. On the contrary, it appears that, on many occasions, the applicant was attended to only after he complained about the lack of systematic attention and specifically requested to see a doctor. The treatment prescribed to him was mainly symptomatic and there is no indication that there was a comprehensive therapeutic strategy aimed at curing his diseases. 115. In several instances, the prison doctors attended to the applicant with notable delays. In particular, after his lawyer's request of 14 November 2002 for medical assistance to the applicant, the applicant was examined only on 28 November 2002 (see paragraph 43 above). After another such request made on 18 February 2003 and repeated on 27 February 2003, the applicant was finally examined on 5 March 2003 (see paragraph 48 above). In the Court's view, this cannot be deemed to be adequate and reasonable medical attention, given the diseases from which the applicant was suffering. 116. Moreover, the mere fact that the applicant was seen by a doctor and prescribed a certain form of treatment cannot automatically lead to the conclusion that the medical assistance was adequate. The authorities had to ensure not only that the applicant be attended by a doctor and his complaints be heard, but also that the necessary conditions be created for the prescribed treatment to be actually followed through. For example, on 3 December 2002 the applicant was advised to go on a diet and take warm sitz baths. However, it was not specified what kind of a diet the applicant should adhere to and for what duration. Nor was the frequency and total duration of treatment with sitz baths mentioned. Moreover, no explanation has been forthcoming from the Government as to how it would be possible for the applicant to follow this particular medical advice taking into account his conditions of detention in Gobustan Prison where he did not have hot water in his cell and was allowed to shower once a week. There is no indication that the prison administration provided the applicant with some special dietary ration different from the usual prison menu or gave him access to hot water on a daily basis. 117. In addition, although the prison doctors'journal submitted by the Government indicates that on a number of occasions the applicant was given certain medicines in the years 2001 to 2003, the Court accepts the applicant's statement that he was not always provided with the medicines prescribed to him and had to rely on his relatives to obtain them. This statement is corroborated by independent reports concerning the Azerbaijani prison system at the relevant time (see paragraph 77 above). In any event, this statement was not contested by the Government. The Court considers that the situation where the applicant had to resort to his family's financial means to procure him the necessary medication which could, in the case of serious diseases, be quite expensive, rendered the overall quality of medical assistance in prison inadequate. 118. The conditions in which life prisoners were detained in Gobustan Prison also contributed to the difficulties in receiving timely assistance by medical staff in urgent cases. The daily closure of the applicant's wing of Gobustan Prison from 19:00 in the evening until 11:00 the following morning practically eliminated the possibility to see a doctor during these hours if an emergency occurred. 119. Having regard to the above, the Court finds that the medical attention provided to the applicant in Gobustan Prison during the period after 15 April 2002 cannot be considered adequate. 120. The Court considers that, in the present case, there is no evidence showing that there was a positive intention to humiliate or debase the applicant. However, the absence of any such purpose cannot conclusively rule out a finding of a violation of Article 3 of the Convention (see V. v. the United Kingdom [GC], no. 24888/94, § 71, ECHR 1999-IX, and Peers v. Greece, no. 28524/95, § 74, ECHR 2001-III ). 121. It does not appear from the evidence available that, during the period after 15 April 2002, there was a relapse in the applicant's tuberculosis condition or that the applicant was exposed to prolonged severe pain due to lack of adequate medical assistance in respect of other diseases. In such circumstances, the Court finds that the suffering he may have endured did not amount to inhuman treatment. However, the Court considers that the lack of adequate medical treatment in Gobustan Prison must have caused the applicant considerable mental suffering diminishing his human dignity, which amounted to degrading treatment within the meaning of Article 3 of the Convention. 122. Accordingly, the Court finds that there has been a violation of Article 3 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION IN CONJUNCTION WITH ARTICLE 3 OF THE CONVENTION 123. The applicant alleged that he did not have at his disposal an effective domestic remedy for his complaint under Article 3, as required by Article 13 of the Convention. This provision reads as follows: “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 124. The parties'submissions in respect of this complaint were substantially the same as those concerning the Government's preliminary objection as to non-exhaustion of domestic remedies in respect of the complaint under Article 3 (see paragraphs 8 6 - 89 above). 125. The Court points out that Article 13 of the Convention guarantees the availability at the national level of a remedy to enforce the substance of Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief ( see, among many other authorities, Kudła, cited above, § 157 ). 126. The scope of the obligation under Article 13 varies depending on the nature of the applicant's complaint under the Convention. Nevertheless, the remedy required by Article 13 must be effective in practice as well as in law (see, for example, Iovchev v. Bulgaria, no. 41211/98, § 142, 2 February 2006 ). 127. Taking into account its earlier considerations as to the exhaustion of domestic remedies (paragraphs 9 0 -9 6 above), the Court finds that the Government have not shown that, in the particular circumstances of the present case, the applicant was given an opportunity to have recourse to a remedy which was available and effective both in law and in practice ( see, mutatis mutandis, Melnik, cited above, § 115). 128. The Court concludes, therefore, that there has been a violation of Article 13 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 129. The applicant complained under Article 6 of the Convention that his right to a fair and public hearing during the appellate proceedings had been restricted, that he had been unable to obtain examination of witnesses prepared to testify on his behalf, and that the court had been biased in favour of the prosecution and had rejected the majority of his petitions without justification. Article 6 provides, where relevant, as follows: “1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by [a] ... tribunal ... [T]he 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. ... 3. Everyone charged with a criminal offence has the following minimum rights: ... (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him ... ” A. The parties'submissions 130. The Government submitted that the mere fact that the appellate proceedings had taken place in the prison did not necessarily lead to the conclusion that the trial was not public. They maintained that the public and the media had been duly informed about the time and place of the hearings and had been granted effective access to the trial. 131. According to the Government, Gobustan Prison was located a distance of 45 kilometres from Baku. To facilitate the public access to the trial, the Ministry of Justice organised a shuttle bus service from Baku to Gobustan Prison. 132. The trial took place in a room which was 150 square metres in size. It was equipped as a regular courtroom and had an adjoining separate deliberation room. It also had designated places for judges, the defendant, defence counsels, representatives of the media and about 50 seats for observers. Any person wishing to attend the trial could apply to the presiding judge who, in turn, applied to the prison authorities to grant this person access to the prison. In support of this submission, the Government provided a copy of a letter of 13 May 2002, sent by the presiding judge to the Director of Gobustan Prison, requesting permission to grant access to the trial to a list of approximately 40 persons, including journalists. 133. The Government pointed out that the trial had been attended by representatives of foreign embassies, international organisations including the Council of Europe, local non-governmental organisations and the applicant's relatives. The course of the trial was covered in the media by a number of television channels, newspapers and news agencies. 134. The Government further submitted that the Court of Appeal had heard testimonies of all witnesses necessary to ascertaining the truth. In total, 62 persons were questioned during the trial, including ten persons questioned at the request of the defence. In addition, written testimonies of six witnesses, given during the previous trial, were read out at the trial in the Court of Appeal at the request of the defence. 135. The applicant argued that no justification had been advanced by the authorities for holding the trial in a remote and barely accessible high security prison. He maintained that the holding of the trial in a distant location was an attempt to prevent, as much as possible, the attendance of the public and to keep the proceedings “away from public scrutiny”. There was no indication that the applicant was dangerous or could abscond or that, in the course of the trial, there could be any threat to public order or national security. As the case concerned the applicant's “re-trial” following his recognition as a political prisoner by the Council of Europe, the authorities had a particular responsibility in respect of the trial's openness and should have made a particular effort to make it accessible and open to the public. 136. According to the applicant, Gobustan Prison was located 75 kilometres away from Baku. No public transportation to the prison was available. 137. The applicant acknowledged that, at a number of hearings, his family members as well as representatives of the mass media, non ‑ governmental and other organisations had been present. However, contrary to the Government, the applicant submitted that there had been no shuttle bus service organised by the Ministry of Justice. His family, using its own financial resources, had to rent a bus from Baku to Gobustan for those who wished to attend the trial. This was not always possible due to financial constraints. When the family was unable to provide a bus for certain hearings, there were either no, or very few, outside observers present at those hearings. Moreover, the applicant contended that on certain occasions the presiding judge had refused access into the prison to certain persons wishing to attend the trial. 138. The applicant further submitted that most of the seats in the courtroom were occupied by law ‑ enforcement officers and, as a result, only a limited number of outside observers could be accommodated. Those who were allowed to enter were subjected to a rigorous body search in a deliberately intimidating manner, with the aim to discourage people from attending the trial. Despite the numerous requests by the defence counsel, all audio and video recording of the trial was prohibited, allegedly with the aim to leave any procedural violations unrecorded. As a result of the lack of publicity and prohibition of recordings, the trial transcripts were usually incorrect and intentionally omitted facts and testimonies favouring the applicant. 139. The applicant further submitted that most of the witnesses heard by the court had been prosecution witnesses. The defence was not given an opportunity to challenge the reliability and accuracy of the witnesses whose written testimonies were read out in the courtroom. Moreover, vital witnesses for the defence were not heard. Likewise, most of the defence counsel's petitions questioning the impartiality of the court, asking for admission of new evidence, etc., were rejected or left unanswered with little or no justification. B. The Court's assessment 140. The Court reiterates that the holding of court hearings in public constitutes a fundamental principle enshrined in Article 6 § 1 of the Convention. This public character protects litigants against the secret administration of justice with no public scrutiny; it is also one of the means whereby confidence in the courts can be maintained. By rendering the administration of justice transparent, publicity contributes to the achievement of the aim of Article 6 § 1, namely a fair trial, the guarantee of which is one of the fundamental principles of any democratic society (see Axen v. Germany, judgment of 8 December 1983, Series A no. 72, p. 12, § 25; Diennet v. France, judgment of 26 September 1995, Series A no. 325 ‑ A, pp. 14-15, § 33, and Moser v. Austria, no. 12643/02, § 93, 21 September 2006 ). 141. The Court has previously held that, provided that there has been a public hearing at first instance, the absence of “public hearings” before higher courts may be justified by the special features of the proceedings at issue. Thus, for example, appellate proceedings involving only questions of law, as opposed to questions of fact, may comply with the requirements of Article 6 even if there was no public hearing at higher courts (see K.D.B. v. the Netherlands, judgment of 27 March 1998, Reports 1998 ‑ II, p. 630, § 39). On the other hand, the Court has held that, where an appellate court has to examine a case as to the facts and the law and make a full assessment of the issue of guilt or innocence, the requirement of publicity extends to the appellate hearings as well (see, for example, Tierce and Others v. San Marino, nos. 24954/94, 24971/94 and 24972/94, § 95, ECHR 2000 ‑ IX ). 142. The Court notes that, in the present case, there are a number of special circumstances distinguishing it from ordinary criminal proceedings. In particular, the applicant was convicted by the court of first instance on 12 February 1996 and there was no right of appeal available to him at the material time. Only after the adoption of the new Code of Criminal Procedure and the transitional law of 14 July 2000, did the applicant obtain a right to appeal and the appellate proceedings were instituted on 24 January 2002. The Court notes, in this connection, that the question whether the first instance hearings in the present case were public and fair is outside its competence ratione temporis (see Hummatov (dec.), cited above). On the other hand, the Court also cannot accept as a fact that, by the time of the examination of the applicant's case on appeal, the requirement of a public hearing had already been satisfied at the first instance. The primary reason for the re-opening of the applicant's case was to remedy the alleged lack of a fair hearing at the first instance, as the applicant had been recognised as a “political prisoner” upon Azerbaijan's accession to the Council of Europe and Azerbaijan had committed itself to give a “re-trial” to all political prisoners including the applicant. Moreover, the Court of Appeal was a judicial body with full jurisdiction, because it had the competence to examine the case on points of fact and law as well as the power to assess the proportionality of the penalty to the misconduct. For these reasons, the Court considers that a public hearing at the Court of Appeal was needed in the present case in order to satisfy the requirements of Article 6 § 1. 143. It is undisputed in the present case that the general public was not formally excluded from the trial at the Court of Appeal. The mere fact that the trial took place in the precincts of Gobustan Prison does not necessarily lead to the conclusion that it lacked publicity. Nor did the fact that any potential spectators would have had to undergo certain identity and possibly security checks in itself deprive the hearing of its public nature (see Riepan v. Austria, no. 35115/97, § 29, ECHR 2000 ‑ XII ). 144. Nevertheless, it must 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. The Court considers that a trial complies with the requirement of publicity only if the general public is able to obtain information about its date and place and if this place is easily accessible to them. In many cases these conditions will be fulfilled by the simple fact that a hearing is held in a regular courtroom large enough to accommodate spectators. However, the holding of a trial outside a regular courtroom, in particular in a place like a prison, to which the general public in principle has no access, presents a serious obstacle to its public character. In such a case, the State is under an obligation to take compensatory measures in order to ensure that the public and the media are duly informed about the place of the hearing and are granted effective access ( ibid ., § 30). The Court will therefore examine whether such measures were taken in the present case. 145. It is true that various hearings of the Court of Appeal were indeed attended by a number of spectators, although it is not clear if this was the case at each hearing. However, this fact by itself does not mean that all the necessary compensatory measures had been taken by the authorities in order to ensure the publicity of the hearings and free access of all potential spectators throughout the entire trial. 146. The Court notes that the appellate proceedings lasted from January 2002 to July 2003 and spanned over more than twenty hearings. As it appears from the trial transcripts, a number of the scheduled hearings were postponed to another date. Although the Government maintained that the public and the media had been duly informed about the time and place of the hearings, they failed to submit any evidence in this regard. The Government failed to elaborate in which manner and by what type and frequency of announcement this information was officially conveyed to the public. Apart from this, there is no indication that the public was ever formally provided with instructions on how to reach Gobustan Prison as well as any explanation of access conditions. 147. The Court also notes that the parties were in disagreement with regard to the distance from Baku to Gobustan Prison. However, regardless of the actual distance, it cannot be disputed that the prison was located far from any inhabited area, was not easily accessible by transport and there was no regular public transportation operating in its vicinity. The Court considers that, in such circumstances, as a compensatory measure, the authorities should have provided regular transportation for spectators for the duration of the trial. However, although the Government argued that the Ministry of Justice organised a shuttle bus service to the prison, they failed to provide evidence in support of this allegation. In such circumstances, the Court accepts the applicant's and independent observers'account that there was no regular shuttle bus service provided by the authorities and that, at least for the majority of the hearings, any people wishing to attend the trial had to resort to their own means of transportation (see paragraphs 8 2 and 8 3 above). The Court considers that the fact that it was necessary to arrange costly means of transport and travel to a remote destination, as opposed to attending the Court of Appeal's regular courtroom in Baku, had a clearly discouraging effect on potential spectators wishing to attend the applicant's trial. 148. The Court also has regard to the applicant's submission as well as the credible reports of observers indicating that, at a number of hearings, spectators and journalists were pre-selected or not granted access to hearings. Although the Government has submitted the letter of 13 May 2002, sent by the presiding judge to the Director of the Gobustan Prison, requesting permission to grant access to the trial to a number of spectators, the Court considers that this letter cannot serve as a proof that the free access to all spectators was guaranteed at all hearings held in the prison. The Court has not been provided with any official records of Gobustan Prison documenting access of visitors to the prison premises during the hearing dates or any other similar evidence. 149. In sum, the Court finds that the Court of Appeal failed to adopt adequate compensatory measures to counterbalance the detrimental effect which the holding of the applicant's trial in the closed area of Gobustan Prison had on its public character. Consequently, the trial did not comply with the requirement of publicity laid down in Article 6 § 1 of the Convention. 150. Moreover, such lack of publicity was not justified for any of the reasons set out in the second sentence of Article 6 § 1. The Court notes that, in the Court of Appeal's interim decisions of 23 April and 13 May 2002, no reasons were offered for holding the trial in a location other than the regular courtroom of the Court of Appeal. The mere fact that, at the time of the examination of his appeal, the applicant was already a prisoner serving a life sentence does not, in itself, automatically imply the necessity of relocation of the appellate proceedings from a normal courtroom to the place of the applicant's imprisonment. The Court reiterates that security problems are a common feature of many criminal proceedings, but cases in which security concerns justify excluding the public from a trial are nevertheless rare (see Riepan, cited above, § 34). In the present case, it was not shown that there were any such security concerns. Moreover, even if there were any, the Court of Appeal apparently did not consider them serious enough either to mention them in its interim decisions of 23 April and 13 May 2003 or to necessitate a formal decision under Article 392.1.6 of the Code of Criminal Procedure excluding the public. In such circumstances, the Court finds no justification for the lack of publicity at the Court of Appeal hearings. 151. The Court also notes that the subsequent hearing of the applicant's cassation appeal by the Supreme Court, even if held in public, was not sufficient to remedy the lack of publicity at the appellate hearings, as the Supreme Court was limited in its competence only to the questions of law and had no jurisdiction to hold a full rehearing of the case (see, mutatis mutandis, Diennet, cited above, p. 15, § 34, and Ekbatani v. Sweden, judgment of 26 May 1988, Series A no. 134, p. 14, § 32 ). 152. Accordingly, the Court concludes that there has been a violation of Article 6 § 1 of the Convention due to lack of a public hearing, which is one of the essential features of the right to a fair trial. In the light of this finding and the materials submitted, the Court considers that it is unnecessary to further examine the applicant's other allegations concerning the fairness of the proceedings. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 153. 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 154. The applicant claimed a total amount of 2 85, 866 euros (EUR) in respect of pecuniary damage, including EUR 64,500 for loss of income due to unlawful arrest, conviction and imprisonment during the period from 1993 to 2004, EUR 215,000 for loss of property confiscated following his conviction on 12 February 1996 which had not been returned to him after the Court of Appeal and Supreme Court repealed the part of conviction as to the confiscation of property, and EUR 6,366 for his family's expenses on food packages, telephone costs and medical costs during his imprisonment. 155. The Government submitted that these claims were unsubstantiated and that the applicant failed to produce any reliable evidence supporting them. 156. The Court cannot speculate as to what the outcome of the proceedings at issue might have been if the violation of the Convention had not occurred (see Riepan, cited above, § 4 6 ). It therefore rejects the applicant's claim in respect of loss of income. 157. As to the claim for damages resulting from the alleged failure to return the confiscated property, the Court notes that this issue was outside the scope of the present case as the applicant has never raised a formal complaint before the Court in that respect. In any event, the applicant's calculations as to the value of the property are not supported by any evidence. Therefore, the Court rejects this claim as well. 158. Furthermore, the Court does not discern any causal link between the violations found and the damage alleged in respect of expenses for food packages and telephone costs. It follows that no damages can be awarded in this respect. 159. Finally, as to the damage claimed in respect of cost of medications borne by the applicant's family, the Court points out that under Rule 60 of the Rules of the Court, any claim for just satisfaction must be itemised and submitted in writing together with the relevant supporting documents or vouchers, failing which the Court may reject the claim in whole or in part. The Court notes that the applicant submitted numerous bank statements showing that, between 2002 and 2004, his wife regularly transferred certain amounts from the Netherlands to the applicant's relatives in Baku. However, from this evidence alone, it is not clear what portion of these amounts was spent on medicines for the applicant. The applicant submitted neither any purchase vouchers, nor any detailed and itemised information as to which medicines, in which quantities and for which price, had been purchased. Accordingly, as the applicant failed to submit sufficient evidence for his claim, no award can be made under this head. 2. Non-pecuniary damage 160. The applicant claimed a total amount of EUR 20,867,000 in respect of non-pecuniary damage, including EUR 857,000 for the suffering caused as a result of an unfair trial, EUR 10,000 for allegedly unlawful loss of citizenship, and EUR 20,000,000 for torture, ill-treatment and lack of medical assistance in prison during the period from 1995 to 2004. 161. The Government contested these claims and argued that they were unsubstantiated. 162. The Court notes that the issue on the applicant's loss of citizenship was outside of the scope of the issues under the Court's examination in the present case. The applicant's complaints concerning the alleged torture and other forms of ill-treatment inflicted in custody during the period prior to 15 April 2002 were declared inadmissible in the Court's partial inadmissibility decision of 11 September 2003. Therefore, no award can be made in respect of these claims. 163. As to the remainder of the claim for non-pecuniary damage, the Court considers that the finding of violations of the Convention cannot constitute sufficient reparation in the present case. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant the sum of EUR 12 ,000 in respect of non ‑ pecuniary damage, plus any tax that may be chargeable on this amount. B. Costs and expenses 164. The applicant claimed EUR 2,090 for legal fees. 165. The Government did not contest this claim. 166. According to the Court's case-law, an applicant is entitled to reimbursement of his costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award the amount claimed in full, i.e. EUR 2,090, less the sum of EUR 701 received in legal aid from the Council of Europe, plus any tax that may be chargeable on this amount. C. Default interest 167. 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 3 (prohibition of inhuman or degrading treatment) of the Convention, finding that the medical care provided to the applicant in prison in the period after 15 April 2002 had been inadequate3 and must have caused him considerable mental suffering which had diminished his human dignity and amounted to degrading treatment. |
335 | Demonstrators | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Relevant criminal provisions 87. Article 39 of the Criminal Code (CP) breaks down criminal offences into two categories : serious offences ( delitti ) and minor offences ( contravvenzioni ). 1. Charges relating to the events in the Diaz-Pertini School and the relevant provisions for sentencing 88. According to Article 323 of the CP, a public official or person responsible for a public department who, in the course of his duties or service, intentionally and in breach of legal or statutory provisions, procures for himself or others an unfair pecuniary benefit or causes an unfair disadvantage to others (offence of abuse of public authority) is subject to a prison sentence of between six months and three years. 89. According to Article 368 §§ 1 and 2 of the CP, anyone who, by dint of a complaint addressed to a judicial authority or to any other body having the duty to refer such complaint to a judicial authority, accuses an individual of having committed an offence in the knowledge that the latter is innocent, or who fabricates evidence against the latter is subject to a prison sentence of between two and six years. The sentence is increased where the offence mentioned in the false accusation is punishable by a minimum of six years imprisonment. 90. Under the terms of Article 479 of the CP, a public official or person responsible for a public service who, when receiving or presenting a document in the course of his duties, wrongly certifies the material existence of the facts set out in the document as having been carried out by himself or as having occurred in his presence, or who otherwise alters the presentation of the facts which the document is intended to prove (forgery ) is subject to a prison sentence of between one and six years or, if the document has been considered authoritative until proven otherwise, between three and ten years. 91. Article 582 of the Criminal Code ( CP ) lays down that anyone who causes an injury to another person resulting in physical or mental disability is subject to a prison sentence of between three months and ten years. Under Article 583 CP, the injury is considered “ serious ” and is subject to a prison sentence of between three and seven years if it causes a disability or temporary incapacity for more than forty days. Article 585 CP increases those sentences, in particular, by up to a third where there are aggravating circumstances within the meaning of Article 577 CP ( for example where the offence is premeditated or in one of the aggravating circumstances set out in Article 61 §§ 1 and 4 [see paragraph 93 below] ). 92. According to section 2 of Law no. 895 of 2 October 1967 unlawful possession of arms or explosives is subject to a prison sentence of between one and eight year(s) and a fine. Section 4 of that Law penalises the carrying of arms or explosives in public places or premises open to the public with a prison sentence of between two and eight years and a fine; those penalties are increased where, inter alia, the offence is committed by two or more persons or is perpetrated under cover of night in an inhabited place. 93. the CP states that the common aggravating circumstances include commission of the offence for futile or abject reasons ( Article 61 § 1), commission of the offence in order to conceal another offence ( Article 61 § 2), infliction of abuse or cruel acts on a person ( Article 61 § 4) and lastly, commission of the offence of abuse of authority inherent in the exercise of public office or violation of the duties inherent in the exercise of public office. Article 62 lists the common mitigating circumstances. Under Article 62- bis CP, in the context of sentencing the judge may take into consideration any circumstance not expressly covered by Article 62 which may justify sentence reduction. 94. In the event of a conviction for several offences within the same decision, the prison sentences run concurrently, and the fines laid down for the various offences are also concurrent ( Articles 71, 73 and 74 CP). However, a prison sentence calculated in that way may not exceed, overall, five times the length of the heaviest sentence available for one of the offences, and may in no case exceed thirty years ( Article 78 § 1 CP). 95. Where several offences are committed by dint of several acts or omissions under the same criminal undertaking, the judge must impose the penalty provided for the most serious offence, which may be increased threefold, in all cases remaining within upper limits set out in Article 78 ( Article 81 CP). 2. Statute barring of the criminal offences 96. Statute limitation is one of the grounds of extinction of criminal offences ( CP Book I, Title VI, Chapter I ). The regulations on statute limitation were amended under Law No. 251 of 5 December 2005 and Legislative Decree No. 92 of 23 May 2008. 97. Under Article 157 § 1 CP, a criminal offence becomes time-barred after a lapse of time equivalent to the duration of the maximum penalty prescribed by law, provided that that lapse of time is not less than six years in the case of major offences, and four years in the case of minor offences. 98. The second, third and fourth paragraphs of Article 157 lay down the criteria for calculating time limits; the fifth paragraph lays down a three-year limitation period for criminal offences not subject to imprisonment or a fine. The sixth paragraph doubles those time-limits as compared with the previous paragraphs for specific offences ( including mafia- type criminal organisations, trafficking in human beings, abduction and drug- trafficking ). The eighth paragraph of the same Article provides that offences subject to a life sentence are imprescriptible. 99. Accused persons can in all cases expressly waive statute-barring ( Article 157 § 7 CP). 100. Article 158 § 1 CP provides that the limitation period begins on the date of commission of the criminal offence. 101. Under Article 160 CP, the limitation period is extended in the event of procedural interruptions, including the condemnatory judgment. Pursuant to the second paragraph of Article 161, with the exception of specific offences which are not relevant to the present case, those interruptions cannot extend the limitation period, which is calculated in accordance with Article 157, by more than a quarter, and, in some cases, by more than half ( in specified cases of reoffending ), by more than two-thirds ( in cases of repeated reoffending ) or by more than double ( if the perpetrator of the offence is an habitual offender ). B. Law No. 241 of 29 July 2006 ( remission of sentence ) 102. Law No. 241 of 29 July 2006 lays down the conditions for remission of sentence ( indulto ). It has only one Article, the relevant section of which provides: “ 1. As regards all offences committed before 3 May 2006, remission of sentence of a maximum three years shall be granted on prison terms and a maximum 10, 000 euros on fines imposed on their own or in conjunction with a prison sentence ... ” C. Civil proceedings linked to a criminal offence 103. Under Articles 75 and 76 of the Code of Criminal Procedure, anyone who has suffered damage as a result of a criminal offence may bring civil proceedings in the civil or criminal courts. 104. Civil proceedings may be brought in criminal courts by lodging a claim for civil damages in the criminal proceedings. D. 2013 Report on the Administration of Justice 105. The relevant section of the 2013 Report on the Administration of Justice by the First President of the Court of Cassation, presented on 24 January 2014 at the opening of the judicial year, reads as follows (page 29): “ Since 1989 ... Italy has ratified the United Nations Convention against Torture, [thus] undertaking to introduce this very serious criminal offence into our legal system and establishing its imprescriptibility and the inapplicability of measures such as amnesty and pardon. Twenty-five years on, nothing has been done, which means that acts of torture committed in Italy invariably become statute-barred in the absence of a law punishing torture as such by imposing appropriate penalties proportionate to the seriousness of the acts in question." E. Bill introducing the offence of torture into the Italian legal system 106. On 5 March 2014 the Italian Senate approved a bill (no. S-849, merging bills nos. S-10, S-362, S-388, S-395, S-849 and S-874) introducing the offence of torture into the Italian legal system. That bill was subsequently transmitted to the Chamber of Deputies for approval. III. RELEVANT INTERNATIONAL LAW A. Universal Declaration of Human Rights 107. Article 5 of the Universal Declaration of Human Rights of 10 December 1948 provides : “ No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. ” B. International Covenant on Civil and Political Rights 108. Article 7 of the International Covenant on Civil and Political Rights of 16 December 1966, which came into force on 23 March 1976 and was ratified by Italy on 15 September 1978, provides : “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation. ” C. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 109. The relevant articles of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984, which came into force on 26 June 1987 and was ratified by Italy on 12 January 1989, read as follows : Article 1 “ 1. For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. 2. This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application.” Article 2 “ 1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. 2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture. 3. An order from a superior officer or a public authority may not be invoked as a justification of torture.” Article 4 “ 1. Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture. 2. Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature.” Article 5 “ 1. Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences referred to in article 4 in the following cases: (a) When the offences are committed in any territory under its jurisdiction or on board a ship or aircraft registered in that State; (b) When the alleged offender is a national of that State; (c) When the victim is a national of that State if that State considers it appropriate. 2. Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him pursuant to article 8 to any of the States mentioned in paragraph I of this article. 3. This Convention does not exclude any criminal jurisdiction exercised in accordance with internal law.” Article 10 “1. Each State Party shall ensure that education and information regarding the prohibition against torture are fully included in the training of law enforcement personnel, civil or military, medical personnel, public officials and other persons who may be involved in the custody, interrogation or treatment of any individual subjected to any form of arrest, detention or imprisonment. 2. Each State Party shall include this prohibition in the rules or instructions issued in regard to the duties and functions of any such person.” Article 11 “ Each State Party shall keep under systematic review interrogation rules, instructions, methods and practices as well as arrangements for the custody and treatment of persons subjected to any form of arrest, detention or imprisonment in any territory under its jurisdiction, with a view to preventing any cases of torture.” Article 12 “ Each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction.” Article 13 “ Each State Party shall ensure that any individual who alleges he has been subjected to torture in any territory under its jurisdiction has the right to complain to, and to have his case promptly and impartially examined by, its competent authorities. Steps shall be taken to ensure that the complainant and witnesses are protected against all ill-treatment or intimidation as a consequence of his complaint or any evidence given.” Article 14 “ 1. Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible. In the event of the death of the victim as a result of an act of torture, his dependants shall be entitled to compensation. 2. Nothing in this article shall affect any right of the victim or other persons to compensation which may exist under national law. ” Article 16 “ 1. Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article I, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. In particular, the obligations contained in articles 10, 11, 12 and 13 shall apply with the substitution for references to torture of references to other forms of cruel, inhuman or degrading treatment or punishment. 2. The provisions of this Convention are without prejudice to the provisions of any other international instrument or national law which prohibits cruel, inhuman or degrading treatment or punishment or which relates to extradition or expulsion. ” D. Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 110. The relevant articles of the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by the General Assembly of the United Nations on 9 December 1975, provide as follows: Article 4 “ Each State shall, in accordance with the provisions of this Declaration, take effective measures to prevent torture and other cruel, inhuman or degrading treatment or punishment from being practised within its jurisdiction. ” Article 7 “Each State shall ensure that all acts of torture as defined in article 1 are offences under its criminal law. The same shall apply in regard to acts which constitute participation in, complicity in, incitement to or an attempt to commit torture. ” Article 10 “If an investigation under article 8 or article 9 establishes that an act of torture as defined in article 1 appears to have been committed, criminal proceedings shall be instituted against the alleged offender or offenders in accordance with national law. If an allegation of other forms of cruel, inhuman or degrading treatment or punishment is considered to be well founded, the alleged offender or offenders shall be subject to criminal, disciplinary or other appropriate proceedings. ” Article 11 “ Where it is proved that an act of torture or other cruel, inhuman or degrading treatment or punishment has been committed by or at the instigation of a public official, the victim shall be afforded redress and compensation in accordance with national law. ” E. UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials 111. The principles were adopted on 7 September 1990 by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders. The relevant ones read as follows : “ ... 3. The development and deployment of non-lethal incapacitating weapons should be carefully evaluated in order to minimize the risk of endangering uninvolved persons, and the use of such weapons should be carefully controlled. 4. Law enforcement officials, in carrying out their duty, shall, as far as possible, apply non-violent means before resorting to the use of force and firearms. They may use force and firearms only if other means remain ineffective or without any promise of achieving the intended result. 5. Whenever the lawful use of force and firearms is unavoidable, law enforcement officials shall: (a) Exercise restraint in such use and act in proportion to the seriousness of the offence and the legitimate objective to be achieved; (b) Minimize damage and injury, and respect and preserve human life; (c) Ensure that assistance and medical aid are rendered to any injured or affected persons at the earliest possible moment; (d) Ensure that relatives or close friends of the injured or affected person are notified at the earliest possible moment. ... 7. Governments shall ensure that arbitrary or abusive use of force and firearms by law enforcement officials is punished as a criminal offence under their law. 8. Exceptional circumstances such as internal political instability or any other public emergency may not be invoked to justify any departure from these basic principles. ... 24. Governments and law enforcement agencies shall ensure that superior officers are held responsible if they know, or should have known, that law enforcement officials under their command are resorting, or have resorted, to the unlawful use of force and firearms, and they did not take all measures in their power to prevent, suppress or report such use. ” F. Observations of the United Nations Human Rights Committee 112. The relevant parts of the Final Observations of the United Nations Human Rights Committee regarding Italy published on 18 August 1998 (UN Doc. CCPR/C/79/Add.94) read as follows : “ 13. The Committee remains concerned at the inadequacy of sanctions against police and prison officers who abuse their powers. It recommends that due vigilance be maintained over the outcome of complaints made against members of the carabinieri and against prison officers. ... 19. It is noted that delays continue to occur with respect to passing legislation concerning the following: the introduction into the Criminal Code of the offence of torture as defined in international law ( Art. 7) [of the International Covenant on Civil and Political Rights ) ... ” G. Documents of the United Nations Committee against Torture 113. Where Italy is concerned, the concluding observations of the United Nations Committee against Torture ( “ CAT ” ) published on 1 January 1995 (UN Doc. A/50/44(SUPP)) read as follows: “ 157. The Committee suggests that the State party should: ... (d) Make sure that complaints of ill treatment and torture are promptly and effectively investigated and, where appropriate, impose an appropriate and effective penalty on the persons responsible ...” 114. Where Italy is concerned, the concluding observations of CAT published on 1 January 1999 (A/54/44(SUPP)) read as follows : “ 1 65. The Committee welcomes : a) The introduction in Parliament of a bill aiming at adding the crime of torture as an autonomous crime and the setting-up of a special fund for the victims of acts of torture ... ... 1 69. The Committee recommends that : a) The legislative authorities in the State Party proceed to incorporate into domestic law the crime of torture as defined in Article 1 of the Convention and make provision for an appropriate system of compensation for torture victims ... ” 115. The Conclusions and Recommendations of CAT concerning Italy published on 16 July 2007 (UN Doc. CAT/C/ITA/CO/4) reads as follows : “ 5. Notwithstanding the State party ’ s assertion that, under the Italian Criminal Code all acts that may be described as “torture” within the meaning of article 1 of the Convention are punishable and while noting the draft law (Senate Act No. 1216) which has been approved by the Chamber of Deputies and is currently awaiting consideration in the Senate, the Committee remains concerned that the State party has still not incorporated into domestic law the crime of torture as defined in article 1 of the Convention. (arts. 1 and 4) ... The Committee reiterates its previous recommendation (A/54/44, para. 169(a)) that the State party proceed to incorporate into domestic law the crime of torture and adopt a definition of torture that covers all the elements contained in article 1 of the Convention. The State party should also ensure that these offences are punished by appropriate penalties which take into account their grave nature, as set out in article 4, para. 2 of the Convention. ” H. Reports by the European Committee for the Prevention of Torture and Inhuman or Degrading Punishment or Treatment, and replies by the Italian Government 116. The relevant section of the CPT ’ s report to the Italian Government on the visit which it conducted in Italy from 21 November to 3 December 2004 (CPT/Inf (2006) 16, 27 April 2006) reads as follows: “ 11. For many years now the CPT has been following the progress through Parliament of the bill introducing the offence of torture into the Criminal Code. The efforts to achieve this end climaxed on 22 April 2004 in the plenary debate on a new Article 613 bis. However, this bill was the subject of a last-minute amendment (addition of the concept of ‘ repeated ’ acts of violence or threats), which unduly restricted the ‘ torture ’ concept as originally envisaged. A new text excluding the latter restriction was agreed on by the Italian Parliament ’ s Commission on Justice on 9 March 2005. The legislative process has been in deadlock ever since. The CPT sincerely hopes that the Italian authorities will continue their efforts to introduce the offence of torture into the Criminal Code. ... 14. In 2001 the CPT initiated dialogue with the Italian authorities concerning the events in Naples on 17 March 2001 and in Genoa from 20 to 22 July 2001. The Italian authorities have continued to inform the Committee of the action taken on the allegations of ill-treatment levelled against the law enforcement agencies. During the visit the authorities provided a list of ongoing judicial and disciplinary proceedings. The CPT would like to be kept regularly informed of developments in the aforementioned judicial and disciplinary proceedings. Furthermore, it would appreciate detailed information on the action taken by the Italian authorities to prevent the reoccurrence of similar episodes in the future ( for example in terms of management of large-scale policing operations, training of support and operational staff and supervision and inspection systems ). ” 117. The reply published at the Italian Government ’ s request ( CPT/Inf (2006), 27 April 2006) reads as follows : “ With specific regard to the insertion and the formal definition of the crime of torture in the Italian Criminal Code, the absence of such crime in the Criminal Code does not mean in any case that in Italy torture exists. If, on the one hand, torture does not exist because this is a practice far from our mentality, on the other hand some sections of the Criminal Code severely punish such behaviour, even though the term "torture" as such is not included in the Code itself. Moreover, we are considering the possibility, in relation to the adjustment of our legal system to the Statute of the International Criminal Court, to insert the crime of torture in our system, through a wider and more comprehensive definition if compared to the relevant international Conventions. However, the substance will not change; with or without the word "torture" in the Criminal Code. Art.32 of Bill No. 6050 (2005), as introduced at the Senate level, envisages inter alia that: “Anybody who harms an individual under his/her control or custody with serious sufferings, both physical and psychological, is convicted to detention penalty of up to ten years ... ... As to the so-called “Genoa events”, the judicial proceedings refer and concern three different episodes: ... iii. As to the criminal proceeding following the events occurred at the “Diaz primary school premises”, the last hearing took place on 11 January 2006. The outcome of the cited hearing is awaited. The cited indications underline that such conduct does not lack of punishment. In fact, despite the lack of the nomen of torture in the Italian relevant code, several provisions are applied when such conduct is reported. In light of Article 11 of Presidential Decree No.737/1981, no disciplinary measures have been applied so far to the Police staff who are subject of criminal proceedings in connection with the cited events, due to the fact that, even if sanctions were imposed, these would necessarily have to be suspended. The reasoning behind this provision is self-evident: to avoid any interference with the criminal action for events that are still being evaluated by the Judicial Authority both in terms of the detection and historical reconstruction of facts and of defence safeguards. A disciplinary evaluation of individual behaviour will therefore follow the conclusion of the relevant criminal cases without a possibility to invoke any statute of limitations. It should be noted in particular that, after 2001, thanks to various initiatives taken by the Department of Public Security at the Interior Ministry also in the training field, no remarks have been made with regard to the policing of major events. Moreover, also on the occasion of ordinary events which are important in terms of public order management such as sport events a substantial decrease has been registered in the episodes requesting the use of force or deterrence measures.” 118. The relevant part of the CPT ’ s report to the Italian Government on its visit to Italy from 14 to 26 September 2008 ( CPT/Inf (2010) 12, 20 April 2010) reads as follows : “ 11. Since, 2001, the CPT has been engaged in a dialogue with the Italian authorities in respect of the events which took place in Naples (on 17 March 2001) and Genoa (from 20 to 22 July 2001). The Committee took note of the information provided by the Italian authorities during the visit on the court proceedings concerning the above-mentioned events; it would like to be informed, in due course, of the outcome of those proceedings. 12. As regards the implementation of the long-standing plan to introduce the crime of torture into the Penal Code, the CPT noted that little progress had been made since the 2004 visit. The Committee encourages the Italian authorities to redouble their efforts to introduce as soon as possible the offence of torture into the Penal Code, in accordance with Italy ’ s international obligations. ” 119. The reply published at the Italian Government ’ s request ( CPT/Inf (2010) 13, 20 April 2010) reads as follows : “ 20. As to the criminal code, it is worth recalling Article 606 and other provisions, contained in the same section of the criminal code, safeguard the individual against illegal arrest, as undue restriction of personal liberty, abuse of office against detainees and prisoners, illegal inspections and personal searches. 21. These safeguards are supplemented by provisions under Article 581 (battery), Article 582 (bodily injury), Article 610 (duress, in cases where violence or threat being not considered as a different crime) and Article 612 (threat) of the criminal code. Even more so, the provisions under Article 575 (homicide) and Article 605 (kidnapping), to which general aggravating circumstances apply, regarding brutality and cruelty against individuals and the fact of having committed these crimes by abusing of power and violating the duties of a public office or public service, respectively (Article 61, paragraph 1, number 4 and 9 of the criminal code). ” 120. The relevant section of the CPT ’ s report to the Italian Government on its visit to Italy from 13 to 25 May 2012 ( CPT/Inf (2013) 32, 19 November 2013 ) reads as follows: “ Before setting out the delegation ’ s findings, the CPT wishes to express its concern that, despite more than 20 years of discussions before Parliament and the elaboration of nine draft bills, the Italian Penal Code still does not contain a specific provision which penalises the crime of torture. The Committee urges the Italian authorities to redouble their efforts to introduce as soon as possible the crime of torture into the Penal Code, in accordance with Italy ’ s longstanding international obligations. Further, with a view to reinforcing the dissuasive force of such a specific offence, the necessary steps should be taken to ensure that the crime of torture is never subject to a statute of limitations. ” 121. The reply published at the Italian Government ’ s request (CPT/Inf (2013) 33, 19 November 2013) reads as follows : “ 5. As far as the crime of torture is concerned, besides recalling our previous information, we would like to reiterate as follows: Article 606 and other provisions, contained in the same section of the criminal code, safeguard the individual against illegal arrest, as undue restriction of personal liberty, abuse of office against detainees and prisoners, illegal inspections and personal searches. These safeguards are supplemented by provisions under Article 581 (battery), Article 582 (bodily injury), Article 610 (duress, in cases where violence or threat are not considered as a different crime) and Article 612 (threat) of the criminal code. Even more so, the provision under Article 575 (homicide) and Article 605 (kidnapping), to which general aggravating circumstances apply, regarding brutality and cruelty against individuals and the fact of having committed these crimes by abusing of power and violating the duties of a public office or public service, respectively (Article 61, paragraph 1, number 4 and 9 of the criminal code). The code of criminal procedure contains principles aiming at safeguarding the moral liberty of individuals: its Article 64, paragraph 2, and Article 188 set out that, ‘ during interrogation and while collecting evidence, methods or techniques to influence the liberty of self-determination or to alter the ability to remember and to value facts cannot be used, not even with the consent of the person involved ’ (paragraph 6). ... 13. As regards the advocated introduction into the Italian criminal system of the offence of torture, many have been the legislative proposals already formulated, however not yet approved by Parliament. According to one of such proposals, the offence takes place whenever there is a repetition of the criminal conduct over time (in its judgment no. 30780 of 27 July 2012, the Court of Cassation proposed a broad interpretation of the ill-treatment offence set forth in Art. 572 of the Criminal Code), so that if the violence has been exhausted in one sole action, the factual situation would not be included in the provision of the new legal instrument.” THE LAW I. PRELIMINARY OBSERVATIONS 122. The Government objected that the request to intervene from the Non - violent Transnational Cross- party Radical Party, the Association “ Non c ’ è pace senza giustizia ” and the Italian Radicals ( the former “Italian Radical Party” ) had been submitted out of time on the ground that it had been lodged with the Court on 21 June 2013, that is to say more that twelve weeks after the date on which the request ought to have been brought to its attention, namely 21 December 2012 ( see paragraphs 4 and 5 above ). They relied on Rule 44 § 3 of the Rules of Court, providing that requests for leave for third-party intervention “ must be ... submitted in writing in one of the official languages ... not later than twelve weeks after notice of the application has been given to the respondent Contracting Party ”. 123. The Government further pointed out that third-party interventions must pursue the goal of enhancing the Court ’ s knowledge by providing fresh information or additional legal arguments relating to the relevant general principles for settling the case. In the present case, however, the third parties had merely proposed legislative reforms in Italy and criticised the fact that torture had not been made a criminal offence, which was not, in their opinion, the role of an amicus curiae before the Court. 124. For those reasons the Government submitted that the third -party observations should not be included in the case file or should at the very least be disregarded by the Court. They further submitted that at all events the observations were completely ill- founded because the lack of any crime of torture in Italian law had not prevented the identification and punishment of the police officers involved in the incidents at the Diaz-Pertini school or the payment of damages to the applicant. 125. The applicant made no comments on that matter. 126. As regards the first strand of the Government ’ s preliminary observations, the Court merely reiterates that pursuant to Rule 44 § 3 in fine of the Rules of Court, “[ a ] nother limitation period may be fixed by the President of the Chamber for exceptional reasons ”, replacing the twelve-week time-limit mentioned in the first part of the same article. 127. For the remainder, the Court will simply take into account those third -party comments which might be relevant to the assessment of the applicant ’ s complaints. II. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 128. The applicant submitted that during the storming of the Diaz-Pertini School by the security forces, he had suffered acts of violence and ill-treatment which he considered tantamount to torture. He also complained that the penalty imposed on those responsible for the acts of which he was complaining had been inadequate owing, in particular, to the statute-barring during the criminal proceedings, of most of the offences charged, the reduction of the sentences of some of the convicted persons and the lack of disciplinary sanctions against those persons. He emphasised that by failing to create the offence of torture and to provide for an appropriate penalty for that offence, the State had failed to take the necessary steps to prevent the violence and other ill- treatment which he had suffered. He relied on Article 3 of the Convention, which provides : “ No one shall be subjected to torture or inhuman or degrading treatment or punishment. ” 129. As regards the alleged shortcomings in the investigation deriving, in particular, from the statute-barring of the offences and the absence of an offence of torture from the Italian legal system, the applicant also relied on Article 6 § 1 ( reasonable length of proceedings ) and Article 13 of the Convention, alone and in conjunction with Article 3. As regards the complaints put forward by the applicant, the Court considers that it should examine the issue of the lack of an effective investigation into the alleged ill- treatment solely under the procedural head of Article 3 of the Convention ( see Dembele v. Switzerland, no. 74010/11, § 33, 24 September 2013, and the references therein ). 130. The Government contested the applicant ’ s argument. A. Admissibility 1. The Government ’ s objection as to loss of victim status a) The parties ’ submissions i. The Government 131. The Government submitted that in the light of well-established case-law (see Amuur v. France, 25 June 1996, § 36, Reports of Judgments and Decisions 1996 ‑ III; Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999 ‑ VI; Labita v. Italy [GC], no. 26772/95, § 142, ECHR 2000 ‑ IV; and Gäfgen v. Germany [GC], no. 22978/05, §§ 115-116, ECHR 2010) the application should be rejected on the grounds that the applicant had lost his victim status. The Government took the view that the criminal proceedings against the persons responsible for the events at the Diaz-Pertini school had established, in particular, the violations of Article 3 of the Convention complained of by the applicant. At the end of the proceedings the applicant, who had claimed civil damages in the latter, had secured recognition of his right to compensation for the damage sustained and been paid, in 2009, pursuant to the first-instance judgment, 35, 000 EUR as an advance on damages ( see paragraph 49 above ). The Government therefore considered that the domestic authorities had fully recognised, explicitly and in substance, the violations complained of by the applicant and had remedied them. 132. Moreover, they held that the statute-barring of some of the offences during the criminal proceedings in question had not deprived the applicant of an opportunity for bringing subsequent civil proceedings in order to obtain the final total payment of compensation for the damage he had sustained. 133. In support of their arguments the Government also referred to the case of Palazzolo v. Italy ([dec.], no. 32328/09, §§ 86, 103-104, 24 September 2014) to show that the Court could not adjudicate complaints which had not been raised at the domestic level and that it was not the role of the Court to substitute its views for those of the domestic courts and to assess the merits of the case as a fourth- instance court. ii. The applicant 134. On the basis, in particular, of the judgments in the cases of Gäfgen ( cited above, §§ 116 et seq. ), Darraj v. France (no. 34588/07, §§ 45-48, 4 November 2010) and Dembele ( cited above, § 62), the applicant submitted that in cases of violation of Article 3 of the Convention it was indispensable, in order to ensure adequate compensation at the domestic level and therefore remove the applicant ’ s victim status, to identify those responsible and to impose on them penalties proportional to the severity of the ill- treatment perpetrated. 135. He claimed that in the present case the domestic authorities had recognised no violation of Article 3, that those responsible for the ill-treatment in issue had, in substance, benefited from impunity owing in particular to the statute-barring of the offences with which they had been charged, and that no disciplinary measures had been taken against them. The applicant considered that under those conditions the civil damages which he had secured during the criminal proceedings concerning the events at the Diaz-Pertini school were insufficient to adequately compensate for the violations of Article 3 of which he was claiming to be the victim. He therefore considered that the Government ’ s contention that he had not brought subsequent civil proceedings to secure the final total payment of compensation for the damage he had sustained should be rejected. b) The Court ’ s assessment 136. The Court notes that the central issue arising in relation to the applicant ’ s loss of victim status is closely linked to the merits of the procedural aspect of the complaint under Article 3 of the Convention. Consequently it decides to join this objection to the merits ( see Vladimir Romanov v. Russia, no. 41461/02, §§ 71-90, 24 July 2008; Kopylov v. Russia, no. 3933/04, § 121, 29 July 2010; and Darraj, cited above, § 28). 137. As regards the Government ’ s plea that the applicant failed to bring subsequent civil proceedings for damages and the applicant ’ s reply to that plea, the Court considers that this circumstance should be examined in the framework of the Government ’ s objection concerning non- exhaustion of domestic remedies ( see paragraphs 149 et seq. above ). 2. The Government ’ s objection of non-exhaustion of domestic remedies a) The parties ’ submissions i. The Government 138. The Government first of all noted that the application had been lodged in January 2011, before the end of the criminal proceedings concerning the events at the Diaz-Pertini school. They explained that the applicant had applied to the Court after the appeal judgment of 18 May 2010, deposited on 31 July 2010 ( see paragraph 59 above ), but before the Court of Cassation judgment of 5 July 2012, deposited on 2 October 2012 ( see paragraph 76 above ). 139. The Government then reiterated that having obtained an advance on the damages in 2009, in the framework of the criminal proceedings ( see paragraph 49 above ), the applicant had failed to bring subsequent civil proceedings for the purposes of the total and final determination of the compensation payable in respect of the damage sustained on account of the impugned ill- treatment. 140. In short, they alleged that when the applicant had lodged his application with the Court, he had not exhausted the criminal and civil remedies available at the domestic level, in breach of Article 35 § 1 of the Convention. ii. The applicant 141. The applicant submitted that the requirement to exhaust domestic remedies under Article 35 § 1 of the Convention was only applicable inasmuch as remedies were available at the domestic level enabling the relevant breach of the Convention to be established and providing the victim with adequate redress. 142. He alleged that in the instant case the violence and ill- treatment which had been perpetrated by the police when they had stormed the Diaz-Pertini school and of which he had been the victim had never been seriously contested during the criminal proceedings ( see, in particular, the Court of Cassation judgment, paragraph 77 above ). He considered that it was because of the shortcomings in the Italian legal system that those criminal proceedings, during which he had claimed civil damages, had not led to the imposition of adequate penalties on those responsible for that ill- treatment. 143. Having regard to the foregoing considerations, the applicant submitted that subsequent civil proceedings to obtain the total and final determination of the compensation payable in respect of the damage sustained could not be considered as an effective remedy providing redress for the violations of Article 3 of the Convention which he had suffered. 144. As regards the alleged prematurity of the application due to the fact that it had been lodged before the delivery of the Court of Cassation judgment, the applicant pointed out that the appeal judgment ( see paragraph 61 above ) had already declared statute-barred most of the offences for which those responsible for the impugned acts had been prosecuted and that, in the case of the offences which had not become time-barred, that judgment had applied to the defendants the reduction of sentence provided for by Law No. 241 of 2006. Accordingly, since the inadequacy of the investigation by the standards of Article 3 of the Convention had already been highlighted by the appeal judgment, the applicant considered that he had not been required to await the judgment of the Court of Cassation before applying to the Court. b) The Court ’ s assessment 145. As regards the first strand of the Government ’ s objection, the Court has already found, in cases lodged before completion of the criminal proceedings concerning ill- treatment under Article 3, that the respondent Government ’ s objection regarding the prematurity of the application had lost its rationale on completion of the criminal proceedings in question (see Kopylov, cited above, § 119, based on Samoylov v. Russia, no. 64398/01, § 39, 2 October 2008). 146. Furthermore, although, in principle, the applicant was required in all fairness to have recourse to various domestic remedies before applying to the Court and compliance with that requirement had to be assessed on the date the application was lodged ( see Baumann v. France, no. 33592/96, § 47, ECHR 2001 ‑ V), the Court can accept the fact that the last stage of such remedies may be reached shortly after the lodging of the application but before it is called upon to pronounce on its admissibility ( see Ringeisen c. Austria, 16 July 1971, § 91, Series A no. 13; E.K. v. Turkey (dec.), no. 28496/95, 28 November 2000; Karoussiotis v. Portugal, no. 23205/08, §§ 57 and 87-92, ECHR 2011; and Rafaa v. France, no. 25393/10, § 33, 30 May 2013). 147. In the present case the Court notes that the applicant alleges that he had been violently attacked by the security forces when they stormed the Diaz-Pertini school in July 2001 ( see paragraphs 34-35 above ). It also notes that in February 2009 the criminal proceedings brought against the security forces concerning the events at the Diaz-Pertini school, in which the applicant claimed civil damages in July 2004 ( see paragraph 46 above ), led to the deposition of the first- instance judgment ( see paragraph 49 above ) and, in July 2010, to the deposition of the appeal judgment ( see paragraph 59 above ). 148. That being the case, the Court cannot criticise the applicant for having submitted his complaints concerning the violation of Article 3 of the Convention to it in January 2011, almost ten years after the events at the Diaz-Pertini school, without awaiting the judgment of the Court of Cassation, which was deposited on 2 October 2012 ( see paragraph 76 above ). Consequently, that part of the Government ’ s objection concerning non- exhaustion of domestic remedies must be rejected. 149. As regards the second strand of the Government ’ s objection regarding the fact that the applicant failed to bring a subsequent civil action for damages, the Court refers, first of all, to the general principles concerning the exhaustion of domestic remedies as recently summarised in Vučković and Others v. Serbia ([GC], nos. 17153/11 etc., §§ 69-77, 25 March 2014). 150. The Court reiterates, in particular, that Article 35 § 1 of the Convention only requires the exhaustion of remedies which are relevant to the impugned violations, available and adequate. A remedy is effective when it is available both in theory and in practice at the material time, that is to say is accessible and capable of providing the applicant with redress for his complaints and has reasonable prospects of success ( see Akdivar and Others v. Turkey, 16 September 1996, § 68, Reposts 1996 ‑ IV, and Demopoulos and Others v. Turkey (dec.) [GC], nos. 46113/99, 3843/02, 13751/02, 13466/03, 10200/04, 14163/04, 19993/04 and 21819/04, § 70, ECHR 2010 ). 151. The Court also reiterates that its 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. It has therefore recognised that Article 35 § 1 must be applied with a degree of flexibility and without excessive formalism. It has further agreed that the rule on exhaustion of domestic remedies 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 (see, among many other authorities, Akdivar and Others, cited above, § 69; Selmouni v. France [GC], no. 25803/94, § 77, ECHR 1999 ‑ V; Kozacıoğlu v. Turkey [GC], no. 2334/03, § 40, 19 February 2009; and Reshetnyak v. Russia, no. 56027/10, § 58, 8 January 2013 ). 152. In its assessment of the effectiveness of the remedy indicated by the respondent Government, the Court must therefore take into account the nature of the complaints and the circumstances of the case in order to determine whether that remedy would have provided the applicant with adequate redress of the impugned violation (see Reshetnyak v. Russia, cited above, § 71, concerning the inadequacy of a compensatory remedy in cases of continuous violation of Article 3 on account of conditions of detention and, in particular, a deterioration in the prisoner ’ s state of health; cf. also De Souza Ribeiro v. France [GC], no. 22689/07, §§ 82-83, ECHR 2012, where the Court reiterated that the requirement of a remedy with automatic suspensive effect against the applicant ’ s expulsion depended on the nature of the violation of the Convention or of its Protocols which would have resulted from that expulsion). 153. In the instant case the Court observes that, as in the section on the loss of victim status ( see paragraphs 131-135 above ), the parties ’ submissions diverge radically on the scope of the obligations flowing from Article 3 of the Convention and the necessary and sufficient means of remedying the impugned violations. As regards its decision to join to the merits the issue of the loss of victim status, the Court considers that the same should apply to the second strand of the objection as to non- exhaustion of domestic remedies. 3. Other grounds of inadmissibility 154. Noting that the complaint is not manifestly ill- founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other ground, the Court declares it admissible. B. Merits 1. The substantive aspect of Article 3 of the Convention a) The parties ’ submissions i. The applicant 155. The applicant alleged that during the police storming of the Diaz-Pertini school he had been insulted and kicked and beaten with truncheons, especially on the head, arms and legs, which had caused injuries requiring a four-day stay in hospital in Genoa and, in particular, an operation on his right ulna. On discharge from hospital he had been granted over forty days ’ unfitness for work. He explained that the attack had left him with a permanent weakness in his right arm and leg. Armed with the supporting documents, he stated that in 2003 he had required a further operation on his right ulna because the fracture had not healed, and that in 2010 he had been advised to have yet another operation for pseudarthrosis in the same bone. 156. The applicant added that when the police had stormed the building he had, like several other persons occupying the premises, put his hands up as a sign of submission, which had not prevented the police officers, armed with truncheons, from striking blows at all the individuals present on the premises. He mentioned the astonishment and panic which he had felt during those events, because as a citizen with no criminal record he had thought that the police was there to protect citizens from violence committed by others and had not considered them capable of inflicting violence on innocent bystanders. 157. Drawing on the reconstruction of events set out in the first-instance and appeal decisions, he more broadly explained that the police storming of the Diaz-Pertini School had been characterised from the outset by extreme violence which had been unjustified vis-à-vis the alleged acts of resistance from the occupiers. He stated that the police officers had first of all attacked clearly harmless people who were standing outside the school, and then all those occupying the building, despite the signs of submission on their part, and that they had even continued battering individuals who had already been injured. Furthermore, instead of normal batons the officers had mainly used tonfa -type truncheons, blows from which could easily cause fractures or even death. Moreover, after that outburst of violence, which the applicant described as gratuitous and indiscriminate, the police had unlawfully arrested the persons occupying the Diaz-Pertini school and committed a whole series of offences in an attempt to justify their actions after the event. 158. Furthermore, the applicant alleged that he had been forced to take up and hold humiliating positions. He also complained that he had not been allowed to contact a lawyer or a support person. Finally, he contended that he had had no prompt or appropriate healthcare treatment, and that police officers had been present during his medical examination. 159. Having regard to the foregoing considerations, the applicant considered that he had suffered acts of torture within the meaning of Article 3 of the Convention. ii. The Government 160. The Government emphasised that they had no wish to “ minimise or underestimate the seriousness of the events in the Diaz-Pertini school during the night from 21 to 22 July 2001 ”. They acknowledged that the incidents had been “ very serious and deplorable acts committed by police officers and constituting several criminal offences, to which the Italian courts had reacted rapidly in order to restore respect for the rule of law which the events had trodden underfoot ”. 161. As a token of the “ full recognition by Italy of the violations of rights perpetrated ”, the Government affirmed that they agreed with the “ judgment of the national courts, which had very harshly criticised the police officers ’ conduct ” during the storming of the Diaz-Pertini School. 162. They nevertheless submitted that the events in question, including the ill-treatment complained of by the applicant, did not reflect any widespread practice in the Italian police service. The Government took the view that the events constituted an unfortunate, isolated and exceptional episode which should be seen against the extremely tense background of the Genoa G8 Summit and the very particular public order protection requirements deriving from the presence of thousands of demonstrators from all over Europe and in the context of the numerous incidents and clashes which had occurred during the demonstrations. The Government concluded by pointing out that that for several years the training provided for the Italian security forces had shifted the emphasis on to heightening officers ’ awareness of respect for human rights, in particular by circulating texts and international guidelines on the subject. iii. The third parties 163. The third parties reiterated the conclusions of the appeal judgment ( see paragraphs 64 and 68 above ) to the effect that the storming of the Diaz-Pertini School had been geared not so much to seeking evidence and identifying those who had caused all the unlawful damage on 21 July 2001 as to carrying out a large number of indiscriminate arrests. They also cited the affirmations of the Court of Cassation to the effect that the acts of violence perpetrated by the police in the school in question had been of the utmost gravity because they had been committed generally throughout the school premises and against persons who had been manifestly unarmed, asleep or sitting with their hands up ( see paragraphs 77 and 79 above ). b) The Court ’ s assessment i. Evidence in support of the allegation of ill- treatment 164. The Court reiterates that, as transpires from its well- established case-law ( see, among many other authorities, Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000-VII, and Gäfgen, cited above, § 92), in cases of alleged violations of Article 3 of the Convention, it must, in its assessment of the evidence, apply a particularly thorough scrutiny. 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 these courts to assess the evidence before them, . Even though in cases involving Article 3 the Court is prepared to be more critical of the conclusions of the domestic courts ( see El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 155, ECHR 2012), in normal circumstances it requires cogent elements to lead it to depart from the findings of fact reached by those courts ( see, among many other authorities, Vladimir Romanov, cited above, § 59, 24 July 2008; Georgiy Bykov v. Russia, no. 24271/03, § 51, 14 October 2010; Gäfgen, cited above, § 93; Darraj, cited above, § 37; Alberti v. Italy, no. 15397/11, § 41, 24 June 2014; Saba v. Italy, no. 36629/10, § 69, 1 July 2014; and Ataykaya v. Turkey, no. 50275/08, § 47, 22 July 2014 ). 165. In the present case, the Court notes that the first-instance and appeal judgments ( see paragraphs 33 and 73 above ), to which the Court of Cassation judgment refers ( see paragraph 77 above ), state that once the police officers had entered the Diaz-Pertini School, they had assaulted virtually all those present, including people who were sitting or lying on the floor, punching, kicking, clubbing and threatening them. The first-instance judgment states that when the police arrived the applicant had been sitting against the wall beside a group of persons with his arms in the air; that he was mainly struck on the head, arms and legs, whereby the blows caused multiples fractures to the right ulna, the right fibula and several ribs; that those injuries had led to a four-day stay in hospital, forty days ’ unfitness for work and a permanent weakness in his right arm and leg (see paragraphs 34 and 35 above). 166. The applicant ’ s allegations regarding the assault which he suffered and its after-effects were thus confirmed by the domestic judicial decisions. 167. Moreover, the Government stated that they broadly agreed with the “judgment of the national courts, which had very harshly criticised the police officers ’ conduct” during the storming of the Diaz-Pertini School. 168. That being the case, and also in view of the systematic nature of the physical and verbal assault on the persons occupying the Diaz-Pertini School throughout the school premises ( see Dedovski and Others v. Russia (no. 7178/03, §§ 77-79, ECHR 2008), the Court considers established both the physical and verbal assault complained of by the applicant and the after-effects of that assault. 169. Under those circumstances, it considers that the complaint of a violation of Article 3 is sufficiently serious and that there is no need to examine the substantiation of the applicant ’ s other allegations ( humiliating positions, inability to contact a lawyer and/or a support person, lack of appropriate and prompt treatment, and presence of police officers during the medical examination ). ii. Legal classification of the treatment as established 170. Having regard to the criteria flowing from its well-established case-law (see, among many other authorities, Selmouni, cited above, § 104; Labita, cited above, § 120; İlhan v. Turkey [GC], no. 22277/93, § 84, ECHR 2000 ‑ VII; Batı and Others v. Turkey, nos. 33097/96 and 57834/00, §§ 118-119, ECHR 2004-IV; Gäfgen, cited above, § 88; El-Masri, cited above, § 196; Alberti, cited above, § 40; and Saba, cited above, §§ 71-72), the Court considers that there can be no serious doubt as to the fact that the impugned ill- treatment falls within the ambit of Article 3 of the Convention. Moreover, the Government has not contested that fact. It remains to be seen whether those acts should be classified as torture, as alleged by the applicant. α) Overview of case-law on “ torture ” 171. In principle, in determining whether a particular form of ill-treatment should be classified as torture, consideration must be given to the distinction, embodied in Article 3, between this notion and that of inhuman or degrading treatment. As noted in previous cases, it appears that it was the intention that the Convention should, by means of such a distinction, attach a special stigma to deliberate inhuman treatment causing very serious and cruel suffering ( see Batı and Others, cited above, § 116; Gäfgen, cited above, § 90, with the judgments cited therein; and El-Masri, cited above, § 197). The severity of the suffering is, in the nature of things, relative; it 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, etc. ( see Selmouni, cited above, § 100, and Batı and Others, cited above, § 120). In addition to the severity of the treatment, there is a purposive element to torture, as recognised in the United Nations Convention against Torture, which came into force in respect of Italy on 26 June 1987 (see paragraph 109 above), which in Article 1 defines torture in terms of the intentional infliction of severe pain or suffering with the aim, inter alia, of obtaining information, inflicting punishment or intimidating ( see İlhan, cited above, § 85; Gäfgen, § 90; and El-Masri, cited above, § 197). 172. The facts of the case have on occasion led the Court to consider that the impugned ill-treatment should be classified as “torture” after jointly applying the two aforementioned criteria, that is to say severity of the suffering and deliberate intention (see, for example, Aksoy v. Turkey, 18 December 1996, §§ 63-64, Reports 1996 ‑ VI: the applicant had been subjected to a “Palestinian hanging” to extract a confession information; Batı and Others, cited above, §§ 110, 122-124: the applicants had been deprived of sleep and subjected to a “Palestinian hanging”, spraying with water, beatings and falaka (foot whipping) for several days in order to extract a confession that they belonged to a certain political party; Abdülsamet Yaman v. Turkey, no. 32446/96, §§ 19-20, 2 November 2004: the applicant had been subjected to a “Palestinian hanging”, spraying with water and electric shocks for several days to force him to confess; Polonskiy v. Russia, no. 30033/05, § 124, 19 March 2009: the applicant had been repeatedly beaten on different parts of his body and given electric shocks to force him to confess to a criminal offence – it should be noted that the Court made a finding of torture even though there had been no long-term physical after-effects; Kopylov, cited above, §§ 125-126: in order to extract a confession the applicant had had his hands behind his back tied and been suspended in the air by means of a rope, bludgeoned, beaten up and subject, for about four months, to several other types of abuse, which had caused serious irreversible after-effects; El-Masri, cited above, §§ 205-211: the applicant had been severely beaten, stripped and forcibly given a suppository, and then shackled and hooded before being forcibly marched to an aircraft, where he had been thrown to the floor, chained down and forcibly tranquillised; the Court found that all these acts of abuse perpetrated in the framework of “ extraordinary rendering ”, had been geared to obtaining information from the applicant or punishing or intimidating him ). 173. In its reasoning, the Court has, in some cases, based its finding of torture no so much on the intentional nature of the ill- treatment as on the fact that it had “ caused ‘ severe ’ pain and suffering” and had been “particularly serious and cruel” ( see, for example, Selmouni, cited above, §§ 101-105, and Erdal Aslan v. Turkey, nos. 25060/02 and 1705/03, § 73, 2 December 2008). 174. In other judgments the Court has attached particular importance to the gratuitous nature of the violence committed against a detained applicant, in reaching a finding of torture. for example, in Vladimir Romanov ( cited above, §§ 66-70) it emphasised that the applicant had been struck with a truncheon after obeying the order to leave his cell, and even after he had fallen on the ground : the violence in question had therefore been intended as a “ reprisal ”. Similarly, in the case of Dedovski and Others ( cited above ), the Court had regard to the potential for violence existing in penitentiary institutions and the fact that disobedience by detainees could quickly degenerate into a riot which would require the intervention of the security forces ( see Dedovski and Others, § 81). The Court did not “ discern any necessity which might have prompted the use of rubber truncheons against the applicants. On the contrary, the actions by the unit officers [had been] grossly disproportionate to the applicants ’ imputed transgressions ”, the latter having refused to leave a cell which was to be searched or to spread [their] arms and legs wide apart for a body search, and the Court also deemed the officers ’ actions “ manifestly inconsistent with the goals they sought to achieve” because “ hitting a detainee with a truncheon was not conducive to the desired result, that is, facilitating the search ” ( ibid. , § 83). The Court found that the ill- treatment had clearly been “ a form of reprisal or corporal punishment ” ( ibid. , §§ 83 and 85) and that, in the context, the use of force had no basis in law ( ibid. , § 82). 175. In some cases concerning police violence during arrests of suspects the Court has also considered whether the impugned ill- treatment constituted “ torture ” within the meaning of Article 3 of the Convention. However, it did not so decide because the police officers ’ aim had not been to extract a confession from the applicant and the injuries were caused during a short period of time in a situation of heightened tension ( see Krastanov v. Bulgaria, no. 50 222/99, § 53, 30 September 2004 : applicant struck on the basis of mistaken identity during a police operation to arrest a dangerous offender ), and in view of the doubts as to the severity of the suffering caused by the impugned ill- treatment and the absence of long -term after-effects ( see Egmez v. Cyprus, no. 30873/96, §§ 76 and 78-79, ECHR 2000 ‑ XII). 176. Finally, in Gäfgen ( cited above ) the Court considered : ( a) the duration of the ill- treatment inflicted on the applicant, namely about ten minutes ( see Gäfgen, cited above ,§ 102); ( b) the physical or mental effects of the ill- treatment on the applicant; the Court held that the threats of ill-treatment had caused him considerable fear, anguish and mental suffering, but no long-term adverse consequences ( ibid. , § 103); ( c) whether the ill- treatment had been intentional or not; the Court found that the threats had not been spontaneous but had been premeditated and calculated in a deliberate and intentional manner ( ibid. , § 104); ( d) the purpose of the ill- treatment and the context in which it had been inflicted; the Court pointed out that the police officers had threatened the applicant with ill- treatment in order to extract information from him on the location of a kidnapped child whom they believed to be still alive but in serious danger ( ibid. , §§ 105-106). Therefore, the Court, while accepting “ the motivation for the police officers ’ conduct and [the fact] that they [had] acted in an attempt to save a child ’ s life ” ( ibid. , § 107), found that the method of interrogation to which he had been subjected in the circumstances of the case had been sufficiently serious to amount to inhuman treatment prohibited by Article 3, but that it did not reach the level of cruelty required to attain the threshold of torture ( ibid. , § 108). ß) Application to the present case 177. In the present case, the Court cannot overlook the fact that according to the Court of Cassation the violence at the Diaz-Pertini School of which the applicant was a victim had been perpetrated “ for punitive purposes, for retribution, geared to causing humiliation and physical and mental suffering on the part of the victims ”, and that it could qualify as “torture” under the terms of the Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( see paragraph 77 above ). 178. Furthermore, it transpires from the case file that the police officers kicked the applicant and struck him with tonfa -type truncheons, which the appeal judgment described as potentially lethal ( see paragraph 68 above ), and that the applicant had been repeatedly hit on different parts of his body. The blows received by the applicant caused multiple fractures ( to the right ulna, the right styloid, the right fibula and several ribs ), leading to a four-day stay in hospital, over forty days ’ unfitness for work, a surgical operation during his stay in hospital and a further operation a few years later, all of which left the applicant with a permanent weakness in his left arm and leg ( see paragraphs 34-35 and 155 above ). The ill-treatment inflicted on the applicant has therefore had severe physical consequences. Nor should the applicant ’ s feelings of fear and anguish be underestimated. Having found accommodation in a night shelter, the applicant was awakened by the noise caused by the police storming the building. In addition to the blows which he received, he witnessed several security officers beating other occupiers of the building for no apparent reason. In that connection, regard should also be had to the conclusions reached by the domestic courts in the framework of the criminal proceedings, with which the Government declared their broad agreement : according to the first- instance judgment, the conduct of the police inside the Diaz-Pertini School constituted a clear violation of the law, “of human dignity and of respect for the individual” ( see paragraph 51 above ); according to the appeal judgment, the officers systematically beat those inside the building in a cruel and sadistic manner, acting like “ violent thugs ” ( see paragraphs 67 and 73 above ); the Court of Cassation mentioned “ egregious ” violence of the “ utmost gravity ” ( see paragraph 77 above ). In their observations before the Court, the Government themselves described the actions of the police in the Diaz-Pertini School as "very serious and deplorable acts". 179. In sum, it cannot be denied that the ill- treatment inflicted on the applicant “ caused severe pain and suffering and was particularly serious and cruel ” ( Selmouni, cited above, § 105, and Erdal Aslan, citéd above, § 73 ). 180. The Court also notes the lack of a causal link between the applicant ’ s conduct and the use of force by the police officers. Although the first-instance judgment accepted that a number of isolated acts of resistance had probably been committed by those inside the Diaz-Pertini School, it singled out the applicant – who was already advanced in years in July 2001 – to highlight the absolute lack of proportionality between the police violence and the resistance put up by the persons occupying the premises ( see paragraph 51 above ). Moreover, as transpires from that judgment, the fact that the applicant was sitting against a wall with his arms above his head ( see paragraph 34 above ) when the police arrived precludes any resistance to the police on his part. Even more tellingly, the appeal judgment stated that no evidence had been presented regarding the alleged acts of resistance from some of those in the building before or after the police entered ( see paragraph 71 above ). Moreover, according to that judgment, the police had been indifferent to any physical vulnerability related to sex and age and to any sign of capitulation, even on the part of persons who had just been abruptly awakened by the noise of the attack ( see paragraphs 67 and 73 above ). The Court of Cassation judgment confirms that none of those occupying the building put up any résistance ( see paragraph 80 above ). 181. Consequently, the present case differs from those in which the ( disproportionate ) use of force by police officers should be considered in relation to acts of physical resistance or attempts to escape ( where the arrest of a suspect is concerned, see, for example, Egmez, cited above, §§ 13, 76 and 78, and Rehbock v. Slovenia, no. 29462/95, §§ 71-78, ECHR 2000 ‑ XII; for cases concerning identity checks, see, for example, Sarigiannis v. Italy, no. 14569/05, §§ 59-62, 5 April 2011, and Dembele, cited above, §§ 43-47; for cases of violence perpetrated during police custody, see Rivas v. France, no. 59584/00, §§ 40-41, 1 April 2004, and Darraj, cited above, §§ 38-44). 182. The ill- treatment complained of in the instant case was thus inflicted on the applicant entirely gratuitously and, as in the cases of Vladimir Romanov ( cited above, § 68) and Dedovski and Others ( cited above, §§ 83-85), cannot be regarded as a means used proportionately by the authorities to achieve the aim pursued. It should be recalled that original aim of storming the Diaz-Pertini School had been to carry out a search of the premises : the police were to have entered the school, where the applicant and the other persons present had lawfully sought shelter, in order to secure evidence likely to help identify the members of the Black Bloc who had carried out the unlawful damage in the city and to facilitate their possible arrest ( see paragraph 29 above ). Above and beyond any circumstantial evidence of the presence of Black Bloc members in the Diaz-Pertini School on the evening of 21 July (see paragraphs 51 and 63 above), the actual modus operandi was inconsistent with the authorities ’ declared aim: the police forced their way into the building by breaking down the gate and the entrance doors of the school, beat up virtually all those inside the building and seized their personal effects without even attempting to identify the owners. Moreover, that is one of the reasons why the Court of Appeal decision as upheld by the Court of Cassation, deemed unlawful the arrests of those occupying the Diaz-Pertini School, which amounted to an offence of abuse of public authority, ( see paragraphs 33-34, 38-39 and 72 above ). 183. The impugned operation was to have been conducted by a formation made up primarily of officers from a division specialising in “ anti- riot ” operations ( see paragraph 29 above ). According to the authorities ’ explanations, that formation was to “ secure ” the building, that is to say carry out a task which, according to the Genoa Court of Appeal, was an obligation of outcome rather than one of means ( see paragraphs 29, 65 and 79 above ). It does not transpire from the domestic decisions that the officers had received any instructions regarding the use of force ( see paragraphs 65, 68 and 79 above ). The police immediately assaulted clearly harmless people who were standing outside the school ( see paragraphs 31 and 66 above ). At no stage did they attempt to negotiate with the individuals who had lawfully sought shelter in the school building or to persuade them to open the doors which those persons had lawfully locked, preferring to break them down without further ado ( see paragraphs 32 and 67 above ). Lastly, they systematically beat up all those present throughout the building ( see paragraphs 33 and 67 above ). It is therefore impossible to overlook the intentional and premeditated nature of the ill- treatment suffered, in particular, by the applicant. 184. Nor can the Court, in assessing the context in which the assault on the applicant took place and, in particular, the intentional aspect, disregard the police attempts to cover up the events in question or to justify them on the basis of misleading statements. On the one hand, as the Court of Appeal and the Court of Cassation emphasised, by forcing their way into the Pascoli School the police hoped to eliminate any film evidence of the ongoing storming of the Diaz-Pertini School (see paragraph 83-84 above). Moreover, regard must be had to the statements of the Head of the Police Press Unit during the night from 21 to 22 July, to the effect that the numerous bloodstains on the floor, walls and radiators in the building had stemmed from the injuries which most of the persons occupying the school had sustained during the day ’ s clashes with the police ( see paragraph 41 above, and paragraph 67 above for the Court of Appeal ’ s assessment of that matter ). Furthermore, the appeal judgment mentions that the resistance put up by the persons occupying the school, the knife attack on one officer and the discovery in the Diaz-Pertini School of two Molotov cocktails were pure fabrication, constituting offences of slander and libel aimed at justifying, ex post facto, the storming of the building and the violent acts committed ( see paragraphs 70-73 above ). The Court of Cassation ruled that it had amounted to a “disgraceful whitewashing operation” ( see paragraph 80 above ). 185. That being the case, the Court cannot accept the Government ’ s implicit argument that the severity of the ill- treatment perpetrated during the police storming of the Diaz-Pertini School should be seen in the context of the high tension surrounding the many clashes which had occurred during the demonstrations and the highly exceptional public - order protection requirements. 186. Clearly, when adjudicating on ill- treatment committed by police officers performing specific duties which are objectively difficult and pose threats to their own safety and that of others, the Court has regard to the tense context and high emotional tension ( see, for example, Egmez, cited above, §§ 11-13 and 78: arrest in flagrante delicto of a drug trafficker who had put up resistance and attempted to escape, in the buffer zone between the Turkish Republic of northern Cyprus and the territory under the authority of the Government of Cyprus; and Gäfgen, cited above, §§ 107-108: threats of torture intended to extract information from the applicant on the whereabouts of a kidnapped child who the investigators believed was still alive but in grave danger). 187. In the present case, although the court of first instance acknowledged that the accused had acted “ in a state of stress and fatigue ” during the storming of the Diaz-Pertini School ( see paragraph 50 above ), neither the Court of Appeal not the Court of Cassation accepted that mitigating circumstance ( see paragraph 73 above ). 188. The Court ’ s role is to rule not on criminal guilt or civil liability but on Contracting States ’ responsibility under the Convention ( see El-Masri, cited above, § 151). With specific regard to Article 3 of the Convention, the Court has on many occasions held that that provision enshrines one of the most fundamental values of democratic societies. Unlike most of the substantive clauses of the Convention, 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, cited above, § 95; Labita, cited above, § 119; Gäfgen, cited above, § 87; and El-Masri, cited above, § 195). The Court has confirmed that even in the most difficult circumstances, such as the fight against terrorism and organised crime, the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the conduct of the person concerned ( see Labita, Gäfgen and El-Masri, cited above, ibid. ). 189. Accordingly, and without wishing to understate the difficulty of policing contemporary societies and the unpredictability of human behaviour ( see, mutatis mutandis, Tzekov v. Bulgaria, no. 45500/99, § 61, 23 February 2006), the Court emphasises the following aspects of the present case: – the police storming of the Diaz-Pertini School took place during the night from 21 to 22 July, whereas the clashes and unlawful damage which had occurred during the G8 Summit were over and no similar incidents had occurred in the school or the surrounding area; – even supposing that the troublemakers had taken refuge in the school, the case file does not show that, on the arrival of the police, those present in the building had engaged in conduct liable to threaten anyone, especially not the large numbers of well- armed police officers participating in the operation ( see paragraph 30 above ): it should be remembered that some of the persons present had merely closed the gate and doors to the school, as they were entitled to do, and that there had been no real acts of resistance ( see paragraphs 71 and 80 above ); – it transpires from the case file that the authorities had sufficient time to properly organise the “ search ” operation ( see paragraphs 27-30 above ); on the other hand, it does not transpire from the case file that the police officers had to react urgently to any unforeseen developments arising during that operation ( see, by contrast, Tzekov, cited above, §§ 61-62); – the search of another school and the arrests of some twenty people occupying it, even though they served no useful purpose in judicial terms, took place on the afternoon of 21 July, apparently without any police violence ( see paragraph 22 above ). In the light of the foregoing considerations, the tension which the Government claim surrounded the police storming of the Diaz-Pertini School may have been caused not so much by any objective factors as by the decision to carry out arrests in front of the TV cameras and the adoption of operational methods at variance with the requirements of protecting the values flowing from Article 3 of the Convention and the relevant international law ( see paragraphs 107-111 above ). 190. In conclusion, having regard to all the facts set out above, the Court considers that the ill-treatment suffered by the applicant during the police storming of the Diaz-Pertini School must be classified as “torture” within the meaning of Article 3 of the Convention. 2. The procedural aspect of Article 3 of the Convention a) The parties ’ submissions i. The applicant 191. The applicant submitted that after lengthy criminal proceedings the Italian courts had recognised the gravity of the ill-treatment which he had suffered during the police storming of the Diaz-Pertini School, but that they had not imposed appropriate penalties on those responsible for that ill- treatment. Having reiterated the charges relating to the events in the Diaz-Pertini School, that is to say, in particular, the offences of giving false information for inclusion in a document, slander, abuse of public authority and (simple and aggravated ) bodily harm, he pointed out that most of those offences had become time-barred during the criminal proceedings. 192. He added that the penalties imposed for the offences which were not time-barred, and which he considered derisory vis-à-vis the seriousness of the acts, had been the subject of remissions of sentence pursuant to Law No. 241 of 29 July 2006. 193. Furthermore, disciplinary measures had been imposed on those responsible for the events in the Diaz-Pertini School, and they had even been promoted. 194. Consequently, drawing in particular on the judgments in the cases of Tzekov ( cited above, §§ 52-66, 69-73), Samoylov ( cited above, §§ 31-33) and Polonskiy ( cited above, §§ 106-117), the applicant complained that the State had failed to honour its obligations under Article 3 of the Convention, that is to say to conduct an effective investigation into the acts of torture which he had suffered, identify the perpetrators of those acts and impose adequate penalties on them. 195. He submitted that the High Contracting Parties had to establish a legal framework capable of protecting the rights granted by the Convention and the Protocols thereto, and criticised the Italian State for having failed to classify as offences all acts of torture or inhuman or degrading treatment, which was, moreover, contrary to the commitments entered into by Italy in 1989 on ratifying the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ( see paragraph 109 above ). He thus alleged that the State had not taken the requisite steps to prevent the acts de torture which he had suffered and to penalise them in an appropriate manner. Finally, the applicant submitted that that omission had in fact been highlighted by the CPT in its report to the Italian Government on its visit to Italy from 13 to 25 May 2012 ( see paragraph 120 above ). ii. The Government 196. The Government submitted that the State had indeed honoured the positive obligation flowing from Article 3 of the Convention to conduct an independent, impartial and thorough investigation. They affirmed that the authorities had adopted all the measures required by the Court ’ s case-law (see Gäfgen, cited above, §§ 115-116, and the references therein), to identify those responsible for the impugned ill-treatment and to impose on them penalties proportionate to the offences committed and to provide compensation to the victim. The Government reiterated that the first-instance judgment had, on the basis of criminal charges, convicted several of the accused, and had further acknowledged the right of the parties claiming civil damages to compensation, ordering the payment of an advance in that regard. They also pointed out that the appeal judgment, which had found that some of the offences were statute-barred, had nonetheless increased the penalties imposed on the accused, convicting a large number of those who had been acquitted at first instance and imposing penalties of up to five years ’ imprisonment for grievous bodily harm. Lastly, the Government observed that the Court of Cassation had upheld the appeal judgment, including the mandatory payment of compensation to the parties claiming civil damages and reimbursement of the costs and expenses incurred. They consequently considered that the statute-barring of some offences from which those responsible for the events at the Diaz-Pertini School had benefited had not diminished the effectiveness of the investigation or in any way infringed the applicant ’ s right to the final payment of damages in the framework of subsequent civil proceedings. 197. Moreover, the Government considered that the applicant ’ s complaint primarily concerned the fact that no offence of “torture” existed within the Italian legal system. In that regard, they stated that Article 3 of the Convention did not require the High Contracting Parties to provide, under their legal system, for an ad hoc offence and that they were therefore at liberty to prosecute ill-treatment within the meaning of Article 3 by means of existing legislation, as the nature and extent of the penalties were also not established in any international standards but were left to the sovereign power of assessment of the national authorities. 198. In the present case, the Government took the view that those responsible for the ill- treatment complained of by the applicant had indeed been prosecuted for the various offences enshrined in Italian criminal legislation ( particularly the offence of grievous bodily harm ) ( see paragraphs 48 and 91 above ), which had not prevented the domestic courts from assessing the impugned ill- treatment in the framework of the serious incidents at the Diaz-Pertini School. Furthermore, the domestic courts had also based their findings on the definition of “ torture ” set out in the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984 ( see paragraphs 77 and 109 above ). 199. In any event, the Government informed the Court that several bills intended to introduce the offence of torture into the Italian legal system were before Parliament and that the enactment procedure for those bills was currently at an advanced stage ( see paragraph 106 above ). They added that penalties of up to twelve years ’ imprisonment were envisaged for cases of ill- treatment committed by public officers or officials and that a life sentence could be passed if the ill- treatment at issue led to the victim ’ s death. iii. Third parties 200. The third parts submitted first of all that for twenty years the UN Human Rights Committee, the CAT and the CPT had been constantly criticising, within their respective spheres of competence, the lack of an offence of torture under the Italian legal system and recommending that the authorities introduce an ad hoc criminal provision laying down penalties which not only corresponded to the seriousness of that criminal offence but were also actually enforced (see paragraphs 112-116, 118, 120). 201. They pointed out that the Government ’ s “ standard response” to those repeated recommendations, to which it had also resorted in the present case, could be summarised as follows : firstly, the Government highlighted the various bills geared to introducing the offence of torture which had been tabled over the years without ever being enacted; secondly, they claimed that acts of torture, like inhuman and degrading treatment, fell foul of other provisions of the Criminal Code (CP) and that they were therefore already prosecuted and penalised in an appropriate manner under the Italian legal system ( see paragraphs 115, 117, 119 and 121 above ); lastly, they submitted that in fact the offence of torture already existed in the Italian legal system by virtue of the direct effect of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. 202. Beyond the logical contradictions which, in the third parties ’ view, existed among the three categories of arguments usually put forward by the Government and their doubts as to the applicability to psychological torture of the criminal provisions mentioned, they contested, in particular, the contention that the various offences already included in the CP enabled all acts of torture to be penalised adequately and effectively. They complained that the maximum penalties laid down in the CP for the offences in question were generally light and that, moreover, the criminal courts tended to impose the minimum penalty laid down in law. The third parties took the view that what they regarded as the fragmentation of the legal classification of acts of torture into one or more “ordinary-law” offences and the leniency of the penalties provided for each of those offences also led to the adoption of excessively short limitation periods as compared to the time required to conduct thorough investigations and to secure a final conviction after the criminal proceedings. Furthermore, they considered that in the absence of a corresponding offence under domestic law and therefore of any possible conviction on that basis, those responsible for acts classified as “ torture ” under international law could benefit from a pardon, a remission of sentence, a stay of execution of sentence or various other measures undermining the effectiveness of the criminal penalty. In short, torturers were liable to feel free to act in the belief that they would enjoy near- absolute impunity. 203. The third parties concluded that under those conditions Italy was in breach of the obligations flowing not only from the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment but also from Article 3 of the Convention. In that connection they drew the Court ’ s attention to the principles which it had set out in paragraph 121 of the Gäfgen judgment (cited above) concerning the assessment of the “ effectiveness ” of the investigation to be carried out by authorities in cases of alleged ill-treatment: they emphasised, in particular, the decisive nature of the outcome of the investigation and the resultant criminal proceedings, including the penalty imposed. More broadly, with reference to the Siliadin v. France judgment (no. 73316/01, §§ 89 and 112, ECHR 2005 ‑ VII), they further submitted that the human rights protection afforded by the Convention could impose the obligation to define as an offence, at the domestic level, the practices covered by Article 3 of the Convention and to appropriately penalise violations of the corresponding rights. b) The Court ’ s assessment i. General principles 204. The Court reiterates that where an individual raises an arguable claim that he has been seriously ill-treated by the police or other such agents of the State unlawfully and 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. This investigation, as with that under Article 2, should be capable of leading to the identification and punishment of those responsible. If this were not the case, the general legal prohibition of torture and inhuman and degrading treatment and punishment, despite its fundamental importance (see paragraph 93 above), would 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, among many other authorities, Assenov and Others v. Bulgaria, 28 October 1998, § 102, Reports 1998 ‑ VIII; Labita, cited above, § 131; Kasyanov, cited above, § 57; Vladimir Romanov, cited above, § 81; Ali and Ayşe Duran v. Turkey, no. 42942/02, § 60, 8 April 2008; Georgiy Bykov, cited above, § 60; El-Masri, cited above, §§ 182 and 185, and the other references therein; Dembele, cited above, § 62; Alberti, cited above, § 62; Saba, cited above, § 76; and Dimitrov and Others v. Bulgaria, no. 77938/11, § 135, 1 July 2014 ). 205. First of all, if an investigation is to be effective and capable of identifying and prosecuting those responsible it must be instigated promptly and conducted expeditiously ( see Gäfgen, cited above, § 121, and the references therein ). Furthermore, the outcome of the investigations and of the ensuing criminal proceedings, including the sanction imposed as well as any disciplinary measures taken, have been considered decisive. It is vital in ensuring 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 prohibition of ill-treatment are not undermined ( see Çamdereli v. Turkey, no. 28433/02, § 38, 17 July 2008; Gäfgen, cited above, § 121; and Saba, cited above, § 76; under Article 2, see also Nikolova and Velichkova v. Bulgaria, no. 7888/03, §§ 60 et seq., 20 December 2007 ) 206. Where the preliminary investigation leads to the opening of proceedings before the domestic courts, the entire proceedings, including the trial stage, must comply with the imperatives of the prohibition set out in Article 3. Therefore, the national courts should not under any circumstances be prepared to allow assaults on individuals ’ physical and moral integrity to go unpunished. This is essential for maintaining public confidence and ensuring adherence to the rule of law and for preventing any appearance of tolerance of or collusion in unlawful acts ( see, under Article 2, Öneryıldız v. Turkey [GC], no. 48939/99, § 96, ECHR 2004 ‑ XII). Consequently, the Court ’ s task is to ascertain to what extent the courts, before reaching a conclusion, may be considered to have submitted the case before them to the scrupulous examination required by Article 3, in order to maintain the deterrent power of the judicial system and the important role it plays in upholding the prohibition of torture ( see Okkali v. Turkey, no. 52067/99, §§ 65-66, 17 October 2006; Ali and Ayşe Duran, cited above, §§ 61-62; Zeynep Özcan v. Turkey, no. 45906/99, § 42, 20 February 2 007; and Dimitrov and Others, cited above, §§ 142-143 ). 207. As regards the criminal penalty to be imposed on those responsible for ill- treatment, the Court reiterates that its task is not to deliver guilty or not-guilty verdicts on the individual in question ( see, under Article 2, Öneryıldız, cited above, § 116, and Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 147, ECHR 2005 ‑ VII) or to determine the penalty to be imposed, which matters come under the exclusive jurisdiction of the domestic criminal courts. Nevertheless, under Article 19 of the Convention and in accordance with the principle that the Convention is intended to guarantee rights that are not theoretical or illusory, but practical and effective, the Court has to ensure that a State ’ s obligation to protect the rights of those under its jurisdiction is adequately discharged. It follows that the Court “must retain its supervisory function and intervene in cases of manifest disproportion between the gravity of the act and the punishment imposed. Otherwise, the State ’ s duty to carry out an effective investigation would lose much of its meaning ” ( see, in those exact terms, Gäfgen, cited above, § 123; see also Ali and Ayşe Duran, cited above, § 66, and Saba, cited above, § 77; lastly, see, under Article 2, Nikolova and Velichkova, cited above, § 62). 208. Assessment of the adequacy of the punishment will therefore depend on the circumstances of the particular case ( see İlhan, cited above, § 92). The Court has also held that in cases concerning torture or ill-treatment inflicted by State agents, criminal proceedings ought not to be discontinued on account of a limitation period, and also that amnesties and pardons should not be tolerated in such cases. Furthermore, the manner in which the limitation period is applied must be compatible with the requirements of the Convention. It is therefore difficult to accept inflexible limitation periods admitting of no exceptions ( see Mocanu and Others v. Romania [GC], nos. 10865/09, 45886/07 and 32431/08, § 326, ECHR 2014 [ extracts ] ) and the cases cited therein. The same applies to suspended sentences ( see Okkali, cited above, §§ 74-78; Gäfgen, cited above, § 124; and Zeynep Özcan, cited above, § 43; see also, mutatis mutandis, Nikolova and Velichkova, cited above, § 62) and remission of sentence ( see Abdülsamet Yaman, cited above, § 55, and Müdet Kömürcü v. Turkey, no. 40160/05, §§ 29-30). 209. For an investigation to be effective in practice it is a prerequisite that the State has enacted criminal-law provisions penalising practices that are contrary to Article 3 ( see Gäfgen, cited above, § 117). The absence of criminal legislation capable of preventing and effectively punishing the perpetrators of acts contrary to Article 3 can prevent the authorities from prosecuting violations of that fundamental value of democratic societies, assessing their gravity, imposing adequate penalties and precluding the implementation of any measure likely to weaken the penalty excessively, undermining its preventive and dissuasive effect ( see M.C. v. Bulgaria, no. 39272/98, §§ 149, 153 and 166, ECHR 2003 ‑ XII; Tzekov, cited above, § 71; and Çamdereli, cited above, § 38; under Article 4, see, mutatis mutandis, Siliadin v. France, no. 73316/01, §§ 89, 112 and 148, ECHR 2005 ‑ VII). 210. As regards disciplinary measures, the Court has on many occasions held that where a State agent has been charged with crimes involving ill-treatment, it is important that he or she be suspended from duty during the investigation or trial and dismissed if he or she is convicted ( see, among many other authorities, the judgments cited above in the cases of Abdülsamet Yaman, § 55; Nikolova and Velichkova, § 63; Ali and Ayşe Duran, § 64; Erdal Aslan, §§ 74 and 76; Çamdereli, § 38; Gäfgen, § 125; and Saba, § 78). 211. Furthermore, the victim should be able to participate effectively in the investigation in one form or another ( see Dedovski and Others, cited above, § 92, and El-Masri, cited above, § 185, and the references therein ). 212. Finally, in addition to conducting a thorough and effective investigation, it is necessary for the State to have made an award of compensation to the applicant, where appropriate, or at least to have given him or her the possibility of seeking and obtaining compensation for the damage he or she sustained as a result of the ill-treatment ( see Gäfgen, cited above, § 118, and the references therein ). ii. Application to the present case 213. Having regard to the principles summarised above, particularly the obligation on the State to identify and, if appropriate, adequately penalise the perpetrators of acts contrary to Article 3 of the Convention, the Court considers that the present case raises three types of issues. α) Failure to identify those responsible for the impugned ill-treatment 214. The police officers who assaulted the applicant in the Diaz-Pertini School and subjected him to acts of torture have never been identified ( see paragraph 52 above ). Therefore, they have never been investigated and have quite simply remained unpunished. 215. Clearly, the investigation obligation flowing from Article 3 is an obligation not of result, but of means ( see Kopylov, cited above, § 132; Samoylov, cited above, § 31; and Batı and Others, cited above, § 134), inasmuch as the investigation may end in failure despite all the means and efforts duly expended by the authorities. 216. In the present case, nevertheless, according to the first-instance judgment, the failure to identify the perpetrators of the impugned ill-treatment derives from the prosecution ’ s objective difficulty in securing definite identifications and the lack of police cooperation during the preliminary investigations (see paragraph 52 above). The Court regrets that the Italian police were able to refuse, with impunity, to provide the competent authorities with the requisite cooperation to identify the officers likely to have been involved in the acts of torture. 217. Moreover, it transpires from the domestic decisions that no exact figure has ever been put on the police officers who took part in the operation ( see paragraph 30 above ) and that the officers, the foremost ones at least wearing protective headgear, stormed the school mostly with their faces concealed by scarves (see paragraphs 29 and 33 above ). The Court considers that those two facts, noted during the planning and implementation stages of the police storming of the Diaz-Pertini School, are in themselves considerable obstacles to any attempt to conduct an effective investigation into the events at issue. The Court reiterates, in particular, that it has already found, under Article 3 of the Convention, that any inability to determine the identity of members of the security forces, when they are alleged to have committed acts that are incompatible with the Convention, breaches that provision. Similarly, it has already stated that where the competent national authorities deploy masked police officers to maintain law and order or to make an arrest, those officers should be required to visibly display some distinctive insignia – for example a warrant number – thus, while ensuring their anonymity, enabling their identification and questioning in the event of challenges to the manner in which the operation was conducted ( see Ataykaya, cited above, § 53, with the references therein ). ß) Statute-barring of the offences and partial remission of sentence 218. Several high- and middle-ranking officials and a number of police officers were prosecuted and tried for several offences in connection with the storming of the Diaz-Pertini School, the violent acts committed there and the attempts to conceal or justify them. The same applies to the events which occurred in the Pascoli School ( see paragraphs 45 and 47 above ). 219. Nevertheless, as regards the events in the Diaz-Pertini School, the offences of slander, abuse of public authority ( in particular the unlawful arrests of the persons occupying the premises), simple bodily harm and, in the case of one accused, grievous bodily harm had become statute-barred before the appeal decision ( see paragraph 61 above ). The offence of grievous bodily harm, for which ten and nine accused had been convicted at first and second instance respectively (see paragraphs 49 and 60 above ), was declared statute-barred by the Court of Cassation ( see paragraphs 76 and 79 above ). As regards the events which took place at the Pascoli School, the offences committed there for the purpose of destroying evidence of the police storming of the Diaz-Pertini School were also statute- barred before the appeal decision ( see paragraph 83 above ). 220. Only convictions involving prison sentences of between three years, three months and four years, together with a five-year ban on discharging public duties, were therefore delivered for providing false information (seventeen accused), aggravated bodily harm (nine accused) and the unlawful carrying of weapons of war (one accused) ( see paragraph 60 above ). 221. In short, after the criminal proceedings no one was convicted on the grounds of the ill- treatment meted out, in particular, on the applicant in the Diaz-Pertini School as the offences of simple and grievous bodily harm had become statute-barred. The convictions upheld by the Court of Cassation are more akin to attempts to justify that ill- treatment in the absence of any factual or legal basis for the arrests of the persons occupying the Diaz-Pertini School ( see paragraphs 76, 79 and 80 above ). Furthermore, pursuant to Law No. 241 of 29 July 2006 laying down the conditions for remission of sentence ( indulto ), those sentences were reduced by three years ( see paragraphs 50 and 60 above ). It follows that those convicted must serve maximum prison sentences of between three months and one year. 222. Having regard to the foregoing considerations, the Court considers that the authorities ’ response was unsatisfactory in view of the gravity of the facts, and was therefore incompatible with the procedural obligations under Article 3 of the Convention. 223. By contrast to its findings in other previous cases ( see, for example, Batı and Others, cited above, §§ 142-147; Erdal Aslan, cited above, §§ 76-77; Abdülsamet Yaman, cited above, §§ 57-59; and Hüseyin Şimşek, cited above, §§ 68-70), the Court holds that that outcome cannot be attributed to delays or negligence on the part of the prosecution or the domestic courts. Indeed, although at first sight the applicant would seem attribute the statute-barring of the offences to the excessive length of proceedings, he in no way supports that allegation with even a summary description of the running of the proceedings or of any unjustified delays during the investigation or the judicial hearings. Nor is there any mention of delays in the case file. Even though a final decision was only given more than ten years after the events at the Diaz-Pertini School, the Court cannot overlook the fact that the prosecution had to cope with a number of major obstacles during the investigation (see paragraphs 44, 45 and 52 above) and that the trial courts had to conduct highly complex criminal proceedings against dozens of accused persons, also involving some one hundred Italian and foreign parties claiming civil damages (see paragraphs 46-47 above), in order to establish, with respect for the safeguards of a fair trial, individual responsibilities for an episode of police violence which the respondent Government themselves described as exceptional. 224. Nor can the Court criticise the domestic courts for having wrongly assessed the gravity of the charges against the accused ( see Saba, cited above, §§ 79-80; see also, mutatis mutandis, Gäfgen, cited above, § 124) or, worse still, for having used de facto the legislative and punitive provisions of domestic law in order to prevent the effective conviction of the prosecuted police officers ( see Zeynep Özcan, cited above, § 43). The appeal and cassation judgments, in particular, took a very firm line and failed to note any justification for the serious incidents at the Diaz-Pertini School. The reasons why the court of appeal had passed the minimum sentence provided by law for each of the offences in question ( those reasons being the fact that the whole operation had originated in the instruction from the Head of Police to carry out arrests and the fact that the accused had therefore acted under the psychological pressure of that instruction – see paragraph 74 above ) cannot be compared to those which the Court has criticised in other cases ( see, for example, Ali and Ayşe Duran, cited above, § 68, where the perpetrators of acts contrary to Article 3 of the Convention had benefited from a reduction of their prison sentences because of their alleged cooperation during the investigation and the criminal proceedings, whereas in fact they had not made any statements other than to persistently deny the allegations against them; see also Zeynep Özcan, cited above, § 43, in which the trial courts had recognised mitigating circumstances on the grounds of the conduct of the accused during the proceedings, whereas in fact they had never attended any of the hearings ). 225. The Court therefore considers that the Italian criminal legislation applied in the instant case ( see paragraphs 88-102 above ) proved both inadequate in terms of the requirement to punish the acts of torture in issue and devoid of any deterrent effect capable of preventing similar future violations of Article 3 ( see Çamdereli, cited above, § 38). Moreover, in Alikaj and Others v. Italy (no. 47357/08, § 108, 29 March 2011), the Court, having affirmed that “ the measures adopted by the authorities responsible for the preliminary investigation ... and then by the trial judges during the proceedings were uncontroversial ”, also held that “ time-barring is indubitably one of the ‘ measures ’ that are unacceptable under the Court ’ s case-law regarding the procedural aspect of Article 2 of the Convention because it has the effect of blocking conviction ”. 226. The Court will come back ( see paragraphs 244 et seq. below ) to those conclusions, which are supported, in particular, by the observations of the First President of the Italian Court of Cassation ( see paragraph 105 above ) and by those of the third parties ( see paragraphs 200-203 above ). γ) Doubts as to the disciplinary measures taken against those responsible for the impugned ill- treatment. 227. It does not transpire from the case file that those responsible for the acts of torture suffered by the applicant and the other related offences were suspended from their duties during the criminal proceedings. Nor does the Court have any information at its disposal on the progress of their careers during the criminal proceedings or any disciplinary action taken after their final conviction, which information is also necessary for the purposes of assessing compliance with Article 3 of the Convention ( see paragraph 210 above ). 228. Moreover, the Court notes the Government ’ s silence on that matter, despite the explicit request for information when the case was communicated. iii. Victim status and exhaustion of domestic remedies ( particularly the action for damages ) 229. Having regard to the foregoing findings, the Court considers that the measures adopted by the domestic authorities did not fully satisfy the criterion of a thorough and effective investigation as established in its case-law. That fact is decisive for the purposes of the Government ’ s plea that the applicant had lost his victim status owing, specifically, to the fact that the courts had already acknowledged the impugned violation in the framework of the criminal proceedings and that they had awarded the applicant compensation ( see paragraph 131 above ). 230. As the Grand Chamber reiterated in Gäfgen ( cited above, § 116), “ in cases of wilful ill-treatment by State agents in breach of Article 3, the Court has repeatedly found that”, in addition to recognition of the violation, “two measures are necessary to provide sufficient redress” to deprive the applicant of victim status. “ Firstly, the State authorities must have conducted a thorough and effective investigation capable of leading to the identification and punishment of those responsible (see, inter alia, Krastanov, cited above, § 48; Çamdereli [cited above] §§ 28-29, 17 July 2008; and Vladimir Romanov, cited above, §§ 79 and 81). Secondly, an award of compensation to the applicant is required where appropriate (see Vladimir Romanov, cited above, § 79, and, mutatis mutandis, Aksoy, cited above, § 98, and Abdülsamet Yaman [cited above] ... [ both in the context of Article 13]) or, at least, the possibility of seeking and obtaining compensation for the damage which the applicant sustained as a result of the ill-treatment”. 231. The Court has repeatedly held that the breach of Article 3 cannot be remedied solely by awarding compensation to the victim. This is so because, if the authorities could confine their response to incidents of wilful ill-treatment by State agents to the mere payment of compensation, while not doing enough to prosecute and punish those responsible, it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity, and the general legal prohibition of torture and inhuman and degrading treatment, despite its fundamental importance, would be ineffective in practice ( see, among many other authorities, Camdereli, cited above, § 29; Vladimir Romanov, cited above, § 78; and Gäfgen, cited above, § 119; see also, mutatis mutandis, Krastanov, cited above, § 60; under Article 2, see Nikolova and Velichkova, cited above, § 55, with the references therein; finally, see Petrović v. Serbia, no. 40485/08, § 80, 15 July 2014 ). That is why the applicant ’ s ability to request and obtain compensation for the damage which he sustained as a result of the ill- treatment or, as in the present case, payment by the authorities of a given amount as an advance on the compensation are only part of the overall action required ( see Camdereli, cited above, § 30; Vladimir Romanov, cited above, § 79; and Nikolova and Velichkova, cited above, § 56). 232. As regards the second strand of the objection as to non-exhaustion of domestic remedies based on the fact that the applicant had failed to bring a subsequent civil action for damages (see paragraph 139 above), the Court reiterates that it has frequently rejected similar objections, having observed that the action for damages was not intended to punish those responsible for the acts contrary to Articles 2 or 3 of the Convention and reaffirming that for violations of that type the reaction of the authorities must not be confined to compensation for the victim ( see, among many other authorities, Yaşa v. Turkey, 2 September 1998, §§ 70-74, Reports 1998 ‑ V; Oğur v. Turkey [GC], no. 21594/93, §§ 66-67, ECHR 1999 ‑ III; Issaïeva and Others v. Russia, nos. 57947/00, 57948/00 and 57949/00, §§ 146-149, 24 February 2005; Estamirov and Others v. Russia, no. 60272/00, §§ 76-77, 12 October 2006; Beganović v. Croatia, no. 46423/06, §§ 54-57, 25 June 2009; and Fadime and Turan Karabulut v. Turkey, no. 23872/04, §§ 13-15, 27 May 2010). In other words, in cases of treatment contrary to Article 3 of the Convention, given that the requirement for compensation to remedy a breach of Article 3 at national level is imposed in addition to the requirement of a thorough and effective investigation geared to identifying and punishing those responsible and is not an alternative, purely compensatory remedies cannot be regarded as effective under Article 3 ( see Sapožkovs v. Latvia, no. 8550/03, §§ 54-55, 11 February 2014). 233. The Court reiterates that where an applicant has pursued a remedy he is not required to pursue another remedy with virtually the same aim ( see Kozacıoğlu, cited above, §§ 40-43; Karakó v. Hungary, no. 39311/05, § 14, 28 April 2009; and Jasinskis v. Latvia, no. 45744/08, §§ 50-55, 21 December 2010). 234. The Court observes that in the present case the applicant did indeed use the civil remedy by claiming damages in the criminal proceedings in July 2004 with a view to obtaining compensation for the damage he had sustained ( see paragraph 46 above; see also Calvelli and Ciglio, no. 32967/96, § 62, ECHR 2002-I). He therefore took part in the criminal proceedings at all the judicial levels ( see paragraphs 59 and 75 above ), with the final judgment of the Court of Cassation lodged with the Registry on 2 October 2012. Under those circumstances, to claim that in order to comply with the rule on exhaustion of domestic remedies the applicant should have brought a subsequent civil action would place an excessive burden on a victim of a violation of Article 3 ( see, mutatis mutandis, Saba, cited above, § 47). 235. With reference to its case-law and the findings in the present case relating to the shortcomings in the investigation into the ill- treatment of which the applicant was a victim, the Court can only reject the respondent Government ’ s two preliminary objections, which it has joined to the merits. iv. Conclusion 236. The Court finds a violation of Article 3 of the Convention – on the ground of ill- treatment sustained by the applicant, which must be classified as “ torture ” within the meaning of that provision – under both its substantive and procedural heads. That being the case, it holds that it is necessary to reject both the Government ’ s preliminary objection regarding the loss of victim status ( see paragraphs 131 et seq. above ) and its preliminary objection concerning the non- exhaustion of domestic remedies ( see paragraphs 139-140 above ). III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 237. 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.” 238. The relevant parts of Article 46 of the Convention reads as follows: “ 1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties. 2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution ... ” A. Indication of general measures 1. General principles 239. The Court reiterates that a judgment in which it finds a breach of Article 46 of the Convention imposes on the respondent State a legal obligation under that provision 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 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 ( see Del Rio Prada v. Spain [GC], no. 42750/09, § 137, ECHR 2013; 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). 240. The Court further reiterates that its judgments are essentially declaratory in nature and that, broadly speaking, it is primarily for the State in question to choose, under the supervision of the Committee of Ministers, the means to be used in its domestic legal system to give effect to 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, among other authorities, Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, CEDH 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 attaching 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). 241. In exceptional cases, however, in order to help the respondent State for honour its obligations under Article 46, the Court may attempt to indicate the kinds of measures to be adopted in order to put an end to the structural problem which it has noted. In that context, it can put forward several options to be chosen and implemented at the discretion of the State in question ( see, for example, Broniowski v. Poland [GC], no. 31443/96, § 194, ECHR 2004 ‑ V). Sometimes, where the nature of the violation found is such as to leave no real choice as to the measures required to remedy it, the Court may decide to indicate only one such measure (see, for example, Del Rio Prada, cited above, § 138; 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 those principles to the present case 242. In the present case the Court observes that the Italian authorities prosecuted those responsible for the impugned ill- treatment for several offences which are already defined in Italian criminal legislation. However, in the framework of its analysis concerning the honouring of the procedural obligations under Article 3 of the Convention, the Court held that the authorities ’ response was unsatisfactory ( see paragraphs 219-222 above ). Having discounted the possibility of negligence or complaisance on the part of the prosecution or the domestic trial courts, it found that the Italian criminal legislation applied in the instant case had “proved both inadequate in terms of the requirement to punish the acts of torture in issue and devoid of any deterrent effect capable of preventing similar future violations of Article 3” ( see paragraphs 223-225 above ). The structural nature of the problem thus appears undeniable. Moreover, having regard to the principles set out in its case-law concerning the procedural head of Article 3 (see paragraphs 204-21 above) and the reasons for its finding, in the present case, that the sanction was disproportionate, the Court considers that the same problem arises in respect of the penalisation not only of acts of torture but also of the other types of ill-treatment prohibited by Article 3: in the absence of appropriate provision for all the types of ill-treatment prohibited by Article 3 under Italian criminal legislation, statute-barring (as provided by the CP, see paragraphs 96-101 above) and remission of sentence (in the case of publication of other laws similar to Law no. 241 of 2006; see paragraph 102 above) can, in practice, prevent the punishment not only of those responsible for acts of “torture” but also of the perpetrators of “inhuman” and “degrading” treatment pursuant to the same provision, despite all the efforts expended by the prosecuting authorities and the trial courts. 243. As regards the requisite measures to remedy that problem, the Court reiterates, first of all, that the State ’ s positive obligations under Article 3 may include a requirement to establish an appropriate legal framework, in particular by introducing efficient criminal-law provisions ( see paragraph 209 above ). 244. Furthermore, as in Söderman v. Sweden [GC], no. 5786/08, § 82, ECHR 2013, the Court observes that that requirement also derives from other international instruments, such as, inter alia, Article 4 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment ( see paragraph 109 above ). As the applicant ( see paragraph 195 above ) and the third parties ( see paragraphs 200 et seq. above ) have pointed out, the conclusions and recommendations of the UN Human Rights Committee, the CAT and the CPT also mention it ( see paragraphs 112-116, 118 and 120 above ). 245. Nevertheless, the Court ’ s jurisdiction is limited to ensuring respect for the obligations deriving from Article 3 of the Convention and, in particular, helping the respondent State to find appropriate solutions to the structural problem identified, that is to say the shortcomings in Italian legislation. It is primarily for the State in question to choose the means to be used in its domestic legal system to give effect to its obligation under Article 46 of the Convention ( see paragraph 240 above ). 246. In this context, the Court considers it necessary to introduce into the Italian legal system legal mechanisms capable of imposing appropriate penalties on those responsible for acts of torture and other types of ill- treatment under Article 3 and of preventing the latter from benefiting from measures incompatible with the case-law of the Court. B. Damage 247. The applicant claimed 180,000 euros (EUR) in respect of the bodily harm which he sustained as a result of the physical assault suffered ( fractures of the right ulna, the right styloid, the right fibula and several ribs; various after-effects; permanent weakness in his right arm and leg ), which he described as “ pecuniary damage ”. He also claimed 120, 000 EUR in respect of the suffering and fear which he experienced during the assault and in respect of various psychological after-effects, which he described as “ non-pecuniary damage ”. 248. The Government challenged those claims and submitted that they were contrary to the declared aim of the application, namely to complain of shortcomings in Italian criminal legislation in cases of infringement of Article 3 of the Convention. They added that the applicant had already been awarded EUR 35,000 in compensation at the domestic level and that he should have subsequently pursued the domestic remedies in order to secure the final total payment of that compensation. 249. In the alternative, they submitted that the applicant ’ s claims were disproportionate vis-à-vis the criteria applied at the domestic level in assessing the extent of bodily harm and non-pecuniary damage. 250. The Court considers that bodily harm cannot be regarded as pecuniary damage. 251. It holds that the applicant certainly suffered non-pecuniary damage from the violations noted. Having regard to the circumstances of the case and, in particular, to the compensation already obtained by the applicant at the domestic level, the Court, making its assessment on an equitable basis, considers that the applicant should be awarded a total of EUR 45, 000 under this head. C. Costs and expenses 252. Given that the applicant did not lodge a claim for costs and expenses, the Court considers that there is no need to make any award in that regard. D. Default interest 253 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 torture and inhuman or degrading treatment) of the Convention on account of ill-treatment sustained by the applicant and of inadequate criminal legislation concerning the punishment of acts of torture which was not an effective deterrent to prevent the repetition of such acts. Having regard to all the circumstances presented, it found, in particular, that the ill-treatment sustained by the applicant when the police stormed the school amounted to “torture”. The Court also noted that the failure to identify the actual perpetrators of the ill-treatment could partly be explained by the objective difficulty of the public prosecutor’s office in establishing definite identifications but also by a lack of police cooperation. Moreover, under Article 46 (binding force and execution of judgments) of the Convention, after emphasising the structural nature of the problem, the Court pointed out that, as regards the remedial measures to be taken, the State’s positive obligations under Article 3 of the Convention might include the duty to introduce a properly adapted legal framework, including, in particular, effective criminal-law provisions. |
82 | Parental authority, child custody and access rights | II. RELEVANT DOMESTIC LAW A. Constitution of the Republic of Poland 47. The relevant articles of the Constitution provide as follows : “ Article 47. Everyone shall have the right to legal protection of his private and family life ... Article 69. Public authorities shall provide, in accordance with statute, assistance to disabled persons to ensure their subsistence, adaptation to work and social communication.” B. Family and Custody Code 48. The relevant part of the Family and Custody Code of 1964, as in force at the material time, reads: “ Article 113. § 1. Regardless of [who exercises] parental authority, the parents and their child have the right and obligation to maintain contact with each other. § 2. Contact with the child will include, in particular, spending time with the child (visits, meetings, taking the child outside of his or her place of residence) and direct communication, maintaining correspondence, and using other means of distance communication, including electronic communications. Art. 113 1. § 1. If the child lives permanently with one parent, the manner of the other parent maintaining contact with the child shall be determined by the parents jointly, having regard to the welfare of the child and taking into account his or her reasonable wishes; in the absence of an agreement [between the parents] the guardianship court shall decide. § 2. ... Article 113 2. § 1. If the welfare of the child so requires, the guardianship court shall limit contact between [either or both] parents and the child. § 2. The guardianship court may, in particular: 1) prohibit meetings with the child, 2) prohibit taking the child outside of his or her place of residence, 3) allow a meeting with a child only in the presence of the other parent or foster parent, a guardian, or another person designated by the court, 4) limit contact to specific kinds of distance communication, 5) prohibit distance communication. Article 113 4. When deciding on the matter of contact with the child, the guardianship court may compel the parents to undertake a specific course of action; in particular, [it may] refer them to institutions or specialists providing family therapy, counselling or other appropriate assistance to the family, at the same time indicating the manner of overseeing compliance with the orders issued. Article 113 5. The guardianship court may change its decision on contact, if the welfare of the child so demands .” III. INTERNATIONAL LAW INSTRUMENTS A. Convention on the Rights of Persons with Disabilities, adopted by the United Nations General Assembly on 13 December 2006 (Resolution A/RES/61/106) 49. The relevant provisions of the Convention on the Rights of Persons with Disabilities, which came into force in respect of Poland on 25 October 2012, read as follows: 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 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. ... 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. ... ” B. Convention on the Rights of the Child, adopted by the United Nations General Assembly on 20 November 1989 (Resolution 44/25) 50. The relevant provisions of the Convention on the Rights of the Child, which came into force in respect of Poland on 7 July 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 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... ... 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. ” THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 52. The applicant complained that the dismissal of his application for an extension of contact with his son had infringed his right to respect for his family life. He alleged that the courts had offered him no assistance in facilitating contact with his son. The applicant 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 53. The Government maintained that the application was inadmissible on account of the applicant ’ s lack of victim status. They underlined that the dismissal of the applicant ’ s request for an extension of contact did not affect contact arrangements already in place. The applicant had not visited his son for one year after the divorce judgment and, when he had renewed contact, his visits had not been as frequent as had been possible under the divorce judgment. 54. The applicant disagreed with the Government ’ s submission. It was true that after the divorce he had not made use of all the possibilities for contact with his son, but he underlined that he had been hospitalised during that period. There had been problems with diagnosing the applicant ’ s medical problems and it had been suspected that he might have been suffering from some infectious disease. During the period in question, the applicant had not visited his son because he had not wanted to transmit a disease to him. Eventually, the applicant had been diagnosed with pernicious anaemia ( which had been caused by stress related to the divorce ) and Hashimoto ’ s disease. The applicant was also suffering from depression, for which he had started undergoing therapy. Accordingly, the applicant could not be blamed for missing visits during 2007 and 2008. 55. The Court considers that the Government ’ s objection regarding the lack of victim status is closely linked to the merits of the complaint under Article 8. It therefore joins this objection to the merits. 56. The Court further notes that this complaint is not manifestly ill ‑ founded within the meaning of Article 3 5 § 3 (a) of the Convention. It notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The applicant ’ s submissions 57. The applicant submitted that his son, born in 2006, had been only eleven months old on the date of the divorce judgment. The applicant did not question that an infant in the first months of his life should reside with the mother. However, with the passage of time, the child ’ s needs had changed and for this reason the applicant had filed his motion for an extension of contact in August 2011. His son had started his pre - school education and he did not require the constant presence of his mother. In the applicant ’ s view, this was the right moment to have contact with his son in places other than at the mother ’ s home. 58. The applicant agreed that the interests of the child were of primary importance and should prevail over the interests of the parents. However, in order to ensure S.N. ’ s proper development, the child should have the possibility of seeing his father as often as possible. Many psychological studies had indicated that the marginalisation of the father ’ s role could have a negative influence on a child ’ s well-being and personal development. It was in the joint interests of the father and the child to have frequent and lasting contact in a diverse environment. The applicant alleged that the domestic courts had done nothing to promote the ties between him and his son and had deprived the applicant of the possibility of being a real parent to his son. 59. The applicant argued that the domestic courts had not taken into consideration many relevant factors of which they had been aware. For example, the mother and the maternal grandmother of S.N. had created an unfriendly environment when the applicant had been visiting his son. The applicant could visit his son only in a room of a surface area no greater than four square metres, even though S.N. had his own bedroom. The applicant wanted to spend more time with his son and felt a strong emotional connection with him. However, the conditions during his visits could not be described as neutral and did not guarantee freedom of communication between the applicant and his son. During visits, the applicant was treated dismissively. The mother and the maternal grandmother did not communicate with each other and with the child in sign language, so the applicant was excluded from any discussion and felt left out. In these conditions, it was really difficult to create closer ties with his son. Furthermore, the district court was aware that the mother was refusing to teach S.N. sign language and that the child consequently could not communicate with the applicant without the assistance of third parties. 60. The applicant disagreed that his disability and the resulting communication barrier were only one of many reasons for the dismissal of his application. It was the failure to adjust the contact arrangements to reflect the age of the child and the applicant ’ s hearing impairment which had created the communication barrier. The applicant submitted that all parties to the case ( that is to say the child and both parents) suffered from a hearing impairment. The mother had a problem with both oral and sign language communication and, contrary to the Government ’ s assertions, she was unable to serve as an interpreter between the applicant and his son. 61. The applicant submitted that during visits he had taught sign language to his son. This was necessary for establishing stronger ties between them and moulding the identity of the child, as well as helping the child to avoid problems with functioning in the society. In addition, the fact that the mother did not teach S.N. sign language for the purposes of enabling him to communicate with the applicant could not be seen as conducive to the child ’ s well-being. 62. The applicant ’ s disability could not be seen as an objective obstacle to his communication with S.N. When the applicant and A.N. had decided to establish a family and to have a child, they had taken into consideration their respective disabilities and all consequences that might arise therefrom. The actions of the mother – who had tried to eliminate the applicant from his son ’ s life by limiting their contact – had been irresponsible. The decision of the domestic courts should have furthered the child ’ s interests, namely that the child should have had the opportunity to spend time with his father and his father ’ s family in the applicant ’ s home. The applicant should have been given a chance to make his son feel secure in his presence. 63. The applicant maintained that the child ’ s best interests demanded a broader perspective than the one adopted by the domestic courts. It was essential to promote the ties between the applicant, his son and the applicant ’ s family in order to ensure the optimum development of the child in the light of the child ’ s disability. A deaf - mute father could understand better than anybody else what kind of obstacles his disabled son could encounter in his life. The applicant had the necessary experience and wanted to prepare his son for the challenges of adult life. 64. The applicant argued that the domestic courts had not taken any measures prescribed by the law or necessary for the well-being of the child which could have ended the conflict between the parents. On one hand, the domestic courts had made any future change in contact arrangements conditional upon the applicant developing stronger ties with his son, but on the other hand, they had not been proactive in encouraging this to happen. The mother had acted as an intermediary between the applicant and S.N., even though she had been in big conflict with the applicant. The conflict between the parents should not have been allowed to have an effect on the father ’ s contact with his child. 65. The domestic courts had treated the applicant as if he were intellectually or emotionally disabled. On account of his disability the applicant was, to some extent, isolated from society, but at the same time he was fully physically and mentally capable. The applicant studied, worked and was independent in all his life activities. He had graduated from a high school for adults and had obtained a qualification as a masseur. The domestic courts ’ finding that the applicant, on account of his hearing impairment, would not be able to ensure his son ’ s safety during contact outside the mother ’ s house was highly discriminatory. In conclusion, the applicant stated that the court decisions had violated his right to respect for his family life. 2. The Government ’ s submissions 66. The Government were convinced that the conduct of the domestic courts had not violated Article 8 of the Convention. They submitted that the applicant had agreed to a no-fault divorce and for years had not questioned the ruling concerning his contact with his son. In addition, the applicant had not visited his son for one year following the granting of the divorce, and in the subsequent period his contacts with his son had not been as regular as that provided for by the divorce judgement. 67. The Government underlined that the disability of the applicant and the communication barrier had not been the only or primary reasons for issuing the decision complained of by the applicant. The domestic courts had been guided by the child ’ s best interests and had taken into account various elements, such the child ’ s development, his state of health, and his strong ties with his mother and with his maternal grandparents. 68. The right to maintain contact was primarily the right of the child and not the right of the parents. In the present case, the interests of the applicant ’ s minor child, who was disabled like his father, should prevail. The Government underlined the necessity of continuing the child ’ s treatment and rehabilitation so as to ensure the best prospects for his development in the future. The domestic courts had taken into account the fact that children with impaired hearing were more exposed to stress related to changes in their routines, since they were not always able to understand external factors. Accordingly, the necessity of guaranteeing a sense of safety and stability was crucial for the child ’ s proper development which, in the domestic courts ’ view, could only be ensured by the child ’ s mother. Furthermore, the child ’ s mother could serve as an interpreter between the applicant and his son, since she used both oral and sign language. 69. In addition, the domestic courts underlined that the applicant ’ s right to contact with his son remained unquestioned. Nonetheless, objective obstacles, such as the disability of a parent or of a child, should be taken into account when deciding on the form of contact. The Government emphasised that once the applicant established ties with his son and overrode the communication barrier there would be prospects for extending his contact rights. However, the applicant should first familiarise the child with himself within the scope of the existing contact arrangements. 3. The Court ’ s assessment (a) Relevant principles 70. The mutual enjoyment by parent and child of each other ’ s company constitutes a fundamental element of “ family life ” within the meaning of Article 8 of the Convention, even if the relationship between the parents has broken down ( see, among other authorities, Elsholz v. Germany [GC], no. 25735/94, § 43, ECHR 2000 ‑ VIII, and G.B. v. Lithuania, no. 36137/13, § 87, 19 January 2016). 71. Even though the essential object of Article 8 is to protect the individuals against arbitrary interference by public authorities, there may be positive obligations inherent in an effective “respect” for family life. These obligations may involve the adoption of measures designed to secure respect for family 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 steps ( see Hämäläinen v. Finland [GC], no. 37359/09, § 63, ECHR 2014). In both the negative and positive contexts, regard must be had to the fair balance which has to be struck between the competing interests of the individual and the community, including other concerned third parties, and the State ’ s margin of appreciation (see, amongst other authorities, Keegan v. Ireland, 26 May 1994, § 49, Series A no. 290, and Zawadka v. Poland, no. 48542/99, § 53, 23 June 2005). When assessing the compliance of State authorities with their obligations under Article 8, it is necessary to take due account of the situation of all members of the family, as this provision guarantees protection to the whole family ( see Jeunesse v. the Netherlands [GC], no. 12738/10, § 117, 3 October 2014). 72. Where the measures in issue concern parental disputes over their children, however, it is not for the Court to substitute itself for the competent domestic authorities in regulating contact questions, but rather to review under the Convention the decisions that those authorities have taken in the exercise of their power of appreciation (see, amongst other authorities, Olsson v. Sweden (no. 1), 24 March 1988, § 68, Series A no. 130). 73. The margin of appreciation to be accorded to the competent national authorities will vary in accordance with the nature of the issues and the importance of the interests at stake. The Court has thus recognised that the authorities enjoy a margin of appreciation when deciding on custody matters. However, stricter scrutiny is called for as regards any further limitations, such as restrictions placed by those authorities on parental rights of contact, and as regards any legal safeguards designed to secure the 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 a young child and one or both parents would be effectively curtailed (see Sahin v. Germany [GC], no. 30943/96, § 65, ECHR 2003 ‑ VIII). 74. In relation to the State ’ s obligation to take positive measures, the Court has held that in cases concerning the implementation of the contact rights of one of the parents, Article 8 includes a parent ’ s right to the taking of measures with a view to his being reunited with his child and an obligation on the national authorities to facilitate such reunion, in so far as the interest of the child dictates that everything must be done to preserve personal relations and, if and when appropriate, to “rebuild” the family; the State ’ s obligation is not one of result, but one of means (see, among other authorities, Ignaccolo-Zenide v. Romania, no. 31679/96, § 94, ECHR 2000 ‑ I; Cristescu v. Romania, no. 13589/07, § 61, 10 January 2012; Prizzia v. Hungary, no. 20255/12, § 35, 11 June 2013; P.K. v. Poland, no. 43123/10, § 86, 10 June 2014 ). 75. The Court recalls that there is currently a broad consensus ‑ including in international law – in support of the idea that in all decisions concerning children, their best interests must be paramount (see Neulinger and Shuruk [GC], no. 41615/07, § 135, 6 July 2010, and X v. Latvia [GC], no. 27853/09, § 96, ECHR 2013). The child ’ s best interests may, depending on their nature and seriousness, override those of the parents (see Sahin, cited above, § 66). The parents ’ interests, especially in having regular contact with their child, nevertheless remain a factor when balancing the various interests at stake (see Neulinger and Shuruk, cited above, § 134). Child interests dictate that the child ’ s ties with its family must be maintained, except in cases where the family has proved particularly unfit. 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 v. France, no. 40031/98, § 59, ECHR 2000 ‑ IX). (b) Application of the above principles to the present case 76. The Court observes that it was not disputed by the parties that the tie between the applicant and his son falls within the scope of “family life”, within the meaning of Article 8 of the Convention. It takes the same view. 77. The Court notes that under the divorce judgment of 15 November 2007 the applicant ’ s son, who was then eleven months old, was to reside with his mother, while the applicant was granted the right to see his son for two hours every week (see paragraph 12 above). At the time the applicant did not object to these arrangements. It was uncontested that the applicant had not fully availed himself of his contact rights owing, inter alia, to his health problems (see paragraphs 15 and 27- 28 above). 78. It appears that subsequently the applicant was keen on developing a closer relationship with his son. In August 2011 the applicant applied to the Białystok District Court for an extension of contact rights. He asked to be allowed to have contact on the second and fourth weekend of every month, as well as over part of Christmas, Easter and half of the main school holidays (see paragraph 14 above). The applicant wanted to increase contact with his son with a view to strengthening their ties, since his son had almost reached the age of five and had started his pre-school education. 79. The domestic courts refused the applicant ’ s request for an extension of contact. They found that the requested change would not be in the child ’ s best interests, having regard to a range of factors, such as the child ’ s disability and his heavy dependence on the mother. It was still necessary that the contact took place in the presence of the mother and at her home. It was considered that the mother ensured security and stability for the child. Furthermore, the requested change of contact arrangements was going too far, given the previously limited extent of the contact between the applicant and his son. In addition, the domestic courts had to pay some regard to the communication problems between the applicant and his son, given that the applicant used exclusively sign language while his son communicated only orally (see paragraphs 27-32 and 37-38 above). 80. The decisive question in the present case is whether the national authorities took all the appropriate steps that could reasonably have been demanded to facilitate contact between the applicant and his son ( see, Ignaccolo-Zenide, cited above, § 96; Nuutinen v. Finland, no. 32842/96, § 128, ECHR 2000 ‑ VIII; Sylvester v. Austria, nos. 36812/97 and 40104/98, § 59, 24 April 2003; and, mutatis mutandis, in respect of the steps required to enforce existing contact arrangements, P.K. v. Poland, cited above, § 87; Malec v. Poland, no. 28623/12, § 69, 28 June 2016; Cristescu, cited above, § 61; and Manuello and Nevi v. Italy, no. 107/10, § 52, 20 January 2015 ). 81. The Court underlines the importance of the child ’ s interests in preserving and developing his or her ties with his or her family, and in particular with his or her mother and father. It considers that, in principle, it is in the child ’ s best interests to maintain contact with both parents, in so far as practicable, on an equal footing, save for lawful limitations justified by considerations regarding the child ’ s best interests. The same rationale underpins Article 9 § 3 of the Convention on the Rights of the Child (see paragraphs 50 above). 82. The applicant ’ s right to see his son was never in dispute for the national courts and they all agreed that the applicant should be able to enjoy that right. However, the national courts should have also ensured that the applicant was able to effectively exercise his right to contact with his son ( Gluhaković v. Croatia, no. 21188/09, § 62, 12 April 2011, and Bondavalli v. Italy, no. 35532/12, § 81 in fine, 17 November 2015). 83. The Court considers that in its assessment of the reasons advanced by the domestic courts it must pay due regard to two specific features of the present case, namely (i ) the serious conflict between the parents, and (ii ) the disability of the applicant and of his son. (i) Conflict between the parents 84. As can be seen from their decisions, both the Białystok District Court and the Białystok Regional Court were aware of the conflict between the parents. Their animosity surfaced in the parallel set of proceedings concerning the issue regarding the extent of the applicant ’ s parental authority (see paragraph 43 above). Further, the District Court noted in its judgment of 9 August 2012 that sometimes contact had been “ obstructed by the mother” (see paragraph 27 above). In addition, the experts commissioned by the District Court in respect of contact arrangements opined that the conflict between the parents impeded their cooperation with regard to the child. Those experts recommended that both parents be counselled by a specialist with a view to assisting them in accepting each other as parents (see paragraph 19 above). 85. However, the District Court did not heed the experts ’ recommendation, noting that the mother of the child had already attended a parent support group at the foundation attached to the specialised nursery school attended by the child and that the applicant had declared that he could join the same group. In those circumstances, the District Court found that it was not necessary to impose an obligation on the parents to undergo family therapy (see paragraph 33 above). 86. The Court observes that the Family and Custody Code contains a number of provisions pertaining to the regulation of contact between parents and a child (see paragraph 48 above). In particular, Article 113 4 of the Code provides that when deciding on the matter of contact with a child, the guardianship court may compel the parents to undertake a specific course of action. This provision indicates, in an non-exhaustive manner, that parents may be referred, for example, to institutions or specialists providing family therapy, counselling or other appropriate assistance to the family. In addition, Article 113 2 § 2 (3) of the Family and Custody Code stipulates that the guardianship court may order that contact between a parent and a child should take place in the presence of, inter alia, a court guardian or another person designated by the court (see paragraph 48 above). 87. The Court notes that the domestic legislation provides for a range of instruments that can assist in alleviating conflict between parents and facilitate contacts between the non-custodial parent and the child. However, the domestic legislation makes no provision for mediation in family-law cases. The Court has already observed in a similar case concerning the enforcement of contact rights that civil mediation “ would have been desirable as a means of promoting cooperation between all parties to the case” (see Cengiz Kılıç v. Turkey, no. 16192/06, § 132 in fine, 6 December 2011). The Court referred in this respect to the Recommendation of the Committee of Ministers of the Council of Europe No. R (98) 1 on Family Mediation (see paragraph 51 above). The Recommendation provides, inter alia, that the use of family mediation can “ improve communication between members of the family, reduce conflict between parties in dispute, produce an amicable settlement, provide continuity of personal contact between parents and children, and lower the social and economic costs of separation and divorce for the parties themselves and States ”. In the Courts view, family mediation may be an efficient instrument for the implementation of rights protected under Article 8 of the Convention. However, it is not for the Court to assess in the instant case whether the existing instruments would have been sufficient or whether they should have been supplemented by means of legislative reform. 88. It is true that the RODK experts retained by the domestic courts stressed the need to develop a new pattern of contact. However, in the Court ’ s view, the domestic courts did not properly examine the possibility of resorting to different existing legal instruments which could have facilitated the broadening of contact between the applicant and his son. 89. The Court acknowledges that the task of domestic courts was rendered difficult by the strained relationship between the applicant and the child ’ s mother. However, the lack of cooperation between separated parents is not a circumstance which can, in and of itself, exempt the authorities from their positive obligations under Article 8. Rather, it imposes on the authorities an obligation to take measures that would reconcile the conflicting interests of the parties, keeping in mind the paramount interests of the child ( see Zawadka, § 67; Bondavalli, § 82; G.B., § 98; and Malec, § 72, all cited above ). (ii) The applicant ’ s disability and the communication barrier 90. The second, important factor in the reasoning of the domestic courts was the respective disabilities of the applicant and of his son, which created a communication barrier between them. The domestic courts viewed this as an objective obstacle to contact and not as a discriminatory measure against the applicant (see paragraphs 29 and 38 above). The Court concurs with the position of the domestic courts that regardless of his disability, the applicant had an incontestable right to contact with his son and that the communication issue should have been taken into account in regulating contact arrangements. 91. The question before the competent domestic authorities was which solution, given the circumstances of the case, would, on the one hand, take into account the child ’ s best interests and, on the other hand, permit the applicant to effectively develop a relationship with his child. The domestic courts ’ solution to the problem was to involve the child ’ s mother in the contact arrangements, since she was able to communicate both orally and in sign language. However, this solution ignored the existing animosity between the parents and the frequent complaints by the applicant that the mother had attempted to obstruct contact and to marginalise his role. The Court also notes in this context that the development of the relationship between the applicant and his child requires much more time than would be the case in a normal situation, given the difficulties in direct communication and the necessity of translation from and into sign language. 92. In the present case, the dismissal of the applicant ’ s application for extension of contact meant that the applicant kept his right to two hours of contact per week in the presence of the child ’ s mother. The Court accepts that the change to the contact arrangements sought by the applicant was possibly too far-reaching, having regard to the relatively limited prior contact between the applicant and his son. It might have been more appropriate to gradually increase the applicant ’ s contact with his son and to make it more diverse. Nonetheless, the Court finds that the maintenance of the same restricted contact arrangements was likely to entail, with the passage of time, a risk of the severance of the applicant ’ s relationship with his son (see, mutatis mutandis, Gluhaković, cited above, § 59). 93. In the Court ’ s view, the domestic courts should have envisaged additional measures, more adapted to the specific circumstances of the case ( see, mutatis mutandis, Gluhaković, cited above, where in regulating contact the authorities failed to take into account the father ’ s work schedule). Having regard to the specifics of the applicant ’ s situation and the nature of his disability, the authorities were required to implement particular measures that took due account of the applicant ’ s situation. The Court refers here to the second sentence of Article 23 § 2 of the Convention on the Rights of Persons with Disabilities, which provides that “State Parties shall render appropriate assistance to persons with disabilities in the performance of their child-rearing responsibilities.” (see paragraph 49 above). 94. The Court further notes that the domestic courts failed to obtain expert evidence from specialists familiar with the problems faced by persons suffering from a hearing impairment. The experts stressed their limited competence in respect of persons suffering from a hearing impairment. Furthermore, the expert report relied on by the courts did not address possible means of overcoming the barriers resulting from the disability in question. The experts focused on the existence of barriers instead of reflecting on possible means of overcoming them. 95. The domestic courts ’ duty, in cases like the present one, is to address the issue of what steps can be taken to remove existing barriers and to facilitate contact between the child and the non-custodial parent. However, in the instant case they failed to consider any means that would have assisted the applicant in overcoming the barriers arising from his disability. (iii) Conclusion 96. Having analysed the reasons advanced by the national authorities, the Court finds that they have not taken all appropriate steps that could reasonably be demanded with a view to facilitating the applicant ’ s contact with his son. 97. The Court concludes that, notwithstanding the State ’ s margin of appreciation, the authorities have failed to adequately secure the applicant ’ s right to respect for his family life as regards his right to effective contact with his son ( see Gluhaković, cited above, § 79). 98. In the light of the above, the Court dismisses the Government ’ s objection concerning the applicant ’ s lack of victim status. 99. There has accordingly been a violation of Article 8 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 14 IN CONJUNCTION WITH ARTICLE 8 OF THE CONVENTION 100. The applicant complained that the courts had dismissed his application for increased contact with his son solely on the ground of his disability. He relied on Article 14 in conjunction with Article 8 of the Convention. Article 14 reads as follows: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” 101. The applicant argued that the domestic courts had violated Article 14 read in conjunction with Article 8 of the Convention. He maintained that in a similar case involving a fully-bodied father the courts would have not set contact at two hours per visit and four visits a month and without the possibility of the child in question being taken to the father ’ s home. The domestic courts had not only failed to assist the applicant, who was disabled, but they had discriminated against him with their decisions. In cases involving non-disabled parties, the Polish courts underlined that the child should be aware that he or she had two parents and should have the possibility of spending time with both of them. In the applicant ’ s case, this right was refused to him. 102. The Government argued that the present case did not disclose a violation of Article 14 read in conjunction with Article 8 of the Convention. They submitted that that the domestic courts had underlined on numerous occasions that the applicant ’ s disability was not, per se, a motive for the dismissal of his application for an extension of contact. However, taking into account the best interests of the child, it could not go unnoticed that the aforementioned disability had given rise to a communication barrier between the applicant and his son, since the applicant used only sign language and the child communicated orally. Therefore, the form of contact should be adjusted to reflect the situation of the family. 103. The Court notes that this complaint is linked to the one examined above and must therefore likewise be declared admissible. 104. The Court has already found a violation of Article 8 of the Convention. In view of its analysis under that Article and the violation found, the Court considers that in the circumstances of the present case it is not necessary to examine any further complaint under Article 14 of the Convention, read in conjunction with Article 8 of the Convention ( see, for a similar conclusion, Schneider v. Germany, no. 17080/07, § 108, 15 September 2011, or A.K. and L. v. Croatia, no. 37956/11, § 94, 8 January 2013). III. 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.” A. Damage 106. The applicant claimed 20,000 euros (EUR) in respect of non ‑ pecuniary damage. He submitted that he had suffered serious emotional distress on account of the erroneous decisions of the national authorities. The impugned decisions had prevented the applicant from building a stronger relationship with his son. Furthermore, the applicant received no assistance from the domestic courts in respect of his situation. The domestic courts ’ decisions had also influenced the applicant ’ s mental health, since he was excluded from his son ’ s life and that made him feel helpless. 107. The Government submitted that the applicant ’ s claim was exorbitant. In the event that the Court established that there had been a violation of the Convention in the case, the Government submitted that the finding of a violation would constitute sufficient just satisfaction. In the alternative, they asked the Court to assess the issue of compensation on the basis of its case-law in respect of similar cases, with due regard to the national economic circumstances. 108. The Court considers that the applicant has suffered non-pecuniary damage as a result of the domestic courts ’ failure to secure him the effective enjoyment of contact with his son which cannot be sufficiently compensated by the finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant EUR 16, 25 0 in respect of non-pecuniary damage, plus any tax that may be chargeable on this amount. B. Costs and expenses 109. The applicant also claimed EUR 680 for the costs and expenses incurred before the domestic courts and EUR 2,000 for those incurred before the Court. 110. The Government observed that the applicant ’ s lawyer had not produced any invoice confirming the amount paid for legal fees in respect of the proceedings before the Court, except for the sum of 72. 80 Polish zlotys (EUR 18 ) for postal expenses. In this regard, they submitted that according to paragraph 9 (1) of the Regulation of the Minister of Finances of 28 March 2011 (Journal of Laws of 2011, no. 68, item 360 with subsequent changes) an invoice should be issued within seven days of the service in question being performed. 111. 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 awards EUR 680 for the domestic proceedings and EUR 18 for the proceedings before the Court. In respect of the latter, the Court notes that the applicant has not produced any invoice or other document showing that he actually incurred costs in respect of his legal representation in the proceedings before it. In those circumstances, and bearing in mind the terms of Rule 60 §§ 2 and 3 of its Rules, the Court rejects the claim in this part. C. Default interest 112. 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, finding that, even though the parents’ strained relationship had admittedly not made the Polish courts’ task an easy one when deciding on contact rights, they should nonetheless have taken measures to reconcile the parties’ conflicting interests, keeping in mind that the child’s interests were paramount. The courts had notably not properly examined the possibilities which existed under domestic legislation of facilitating the broadening of contact between the applicant and his son. Moreover, they had failed to envisage measures more adapted to the applicant’s disability, such as obtaining expert evidence from specialists familiar with the problems faced by those with hearing impairments. Indeed, the courts had relied on expert reports which had focused on the communication barrier between father and son instead of reflecting on the possible means of overcoming it. |
948 | Deprivation of voting rights as part of a criminal investigation | II. Relevant domestic law and practice A. Provisions relating to the length of detention pending trial 85. The first paragraph of Article 273 of the Code of Criminal Procedure (“CCP”) provides that “no one shall be detained pending trial unless there is serious evidence of his guilt”. 86. Article 274 CCP goes on to provide that detention pending trial may be ordered: “(a) if detention is demanded by special and unavoidable requirements of the inquiry into the facts under investigation concerning a genuine and present danger for the production or authenticity of evidence ...; (b) if the accused has absconded or there is a real danger of his absconding, provided that the court considers that, if convicted, he will be liable to a prison sentence of more than two years; and (c) where, given the specific nature and circumstances of the offence and having regard to the character of the suspect or the accused as shown by his conduct, acts or criminal record, there is a genuine risk that he will commit a serious offence involving the use of weapons or other violent means against the person or an offence against the constitutional order or an offence relating to organised crime or a further offence of the same kind as that of which he is suspected or accused ...” 87. Under Article 275 § 3 CCP, as amended by Legislative Decree no. 152 of 1991 (which became Law no. 203 of 1991) and Legislative Decree no. 292 of 1991 (which became Law no. 356 of 1991) there is a rebuttable presumption that such a necessity exists where certain offences, such as being a member of a mafia -type organisation, are concerned. 88. Article 303 CCP lays down the maximum permitted periods of detention pending trial which vary according to the stage reached in the proceedings. For the offence laid down in Article 416 bis of the Criminal Code, the periods applicable during the proceedings at first instance are one year from the beginning of the defendant's detention until the order committing him for trial and one year from the beginning of the trial until his conviction at first instance. If no committal order is made or, as the case may be, the defendant is not convicted at first instance within the relevant period, the detention pending trial ceases to be lawful and the defendant must be released. 89. However, paragraph 2 of Article 304 CCP provides that for certain offences, including the one provided for in Article 416 bis of the Criminal Code, the periods laid down in Article 303 may be extended during the hearings, the deliberations at first instance or the appeal, if the proceedings prove to be particularly complex. Article 304 provides that the length of detention pending trial must not, under any circumstances, exceed two ‑ thirds of the maximum sentence for the offence with which the defendant is charged or the sentence imposed by the first-instance court. 90. Paragraph 2 of Article 305 CCP provides: “During the preliminary investigation, the public prosecutor may request an extension of a period of detention pending trial that is about to expire where there is a serious need for precautionary measures which, in particularly complex investigations, make it absolutely necessary to extend the period of detention pending trial ...” That provision goes on to provide that such an extension may be renewed only once and that, in any event, the periods provided for in Article 303 CCP cannot be exceeded by more than half. 91. With regard to the procedures on release, on 29 March 1996 the Ministry of Justice informed all penal institutions of the need for administrative services to be provided at night time, too, to ensure not only the release of prisoners but also, among other things, the admission of suspects who had been arrested or had voluntarily surrendered to custody and the availability of emergency hospital treatment for prisoners. B. Reparation for “unjust” detention 92. Article 314 CCP provides that anyone who has been acquitted in a judgment that has become final – on the grounds that the case against him has not been proved, he has not committed the offence, no criminal offence has been committed or the facts alleged do not amount to an offence at law – is entitled to equitable reparation for any period he has spent in detention pending trial, provided that misrepresentations or fault on his part were not contributory factors in his being detained. 93. An application for reparation must be made within eighteen months after the judgment becomes final. The maximum award is 100,000,000 Italian lire. C. Provisions relevant to the censorship of correspondence 94. Section 18 of Law no. 354 of 26 July 1975, as amended by section 2 of Law no. 1 of 12 January 1977, provides that power to order censorship of prisoners' correspondence vests in the judge dealing with the case – whether the investigating judge or the trial judge – until the decision at first instance and thereafter in the judge responsible for the execution of sentences. The judge may order censorship of a prisoner's correspondence in a reasoned decision; this provision does not, however, specify the circumstances in which such orders may be made. 95. In practice, censorship entails all the prisoner's mail being intercepted and read by either the judge that made the order or the prison governor or prison staff designated by him; censored mail is stamped to show that it has been inspected (see also Article 36 of the decree implementing Law no. 354 referred to above – Presidential Decree no. 431 of 29 April 1976). Censorship cannot extend to deleting words or sentences, but the judge may order that one or more letters shall not be delivered; in such cases, the prisoner must be informed immediately. This latter measure can also be ordered temporarily by the prison governor, who must, however, notify the judge. 96. Article 103 CCP forbids the seizure or any form of censorship of correspondence between a prisoner and his lawyer, provided that the correspondence is identifiable as such and unless the judge has well ‑ founded reasons to believe that the correspondence constitutes the substance of the offence. 97. Similarly, by Article 35 of the transitional provisions of the new Code of Criminal Procedure the rules on the censorship of a prisoner's correspondence laid down in Law no. 354 and Presidential Decree no. 431 do not apply to correspondence between a prisoner and his lawyer. However, for such correspondence to escape censorship, the envelope must be marked with the identity of both the accused and his lawyer, the fact that the lawyer is acting in that capacity and the words “correspondence for the purposes of court proceedings” (“ corrispondenza par ragioni di giustizia ”) signed by the sender, who must also specify the proceedings to which the letter relates. If the sender is the lawyer, his signature must be certified by the head of the Bar Association or the latter's delegate. 98. As the censorship of correspondence is an administrative act and does not affect the prisoner's personal liberty, no appeal lies to the Court of Cassation in respect of it (Court of Cassation, judgments nos. 3141 of 14 February 1990 and 4687 of 4 February 1992). 99. Section 35 of the Prison Administration Act (Law no. 354 of 26 July 1975) provides that prisoners may send requests or complaints in a sealed envelope to the following authorities: ( i ) the prison governor, prison inspectors, the director-general of penal institutions and the Minister of Justice; (ii) the judge responsible for the execution of sentences; (iii) the judicial and health-care authorities who inspect the prison; (iv) the president of the regional council; (v) the President of the Republic. D. The effect of section 41 bis of Law no. 354 of 1975 on the censorship of correspondence 100. By section 41 bis of the Prison Administration Act, as amended by Law no. 356 of 7 August 1992, the Minister of Justice is empowered to suspend application of the ordinary prison regime – as laid down by Law no. 354 of 1975 – in whole or in part if it fails to meet the standards required to preserve public order and security. He must give reasons for so doing and judicial review will lie. The provision may be applied only where the prisoner has been prosecuted for or convicted of one of the offences set out in section 4 bis of the statute. The offences concerned include those linked to mafia activities. By Law no. 446 of 28 November 1999 that provision is to remain in force until 31 December 2000. 101. Section 41 bis contains no list of the restrictions that may be imposed. They must be determined by the Minister of Justice. When first implemented, section 41 bis was construed as also empowering the Minister of Justice to censor prisoners' correspondence. 102. In its judgments nos. 349 and 410 delivered in 1993, the Italian Constitutional Court, which was examining whether that system was consistent with the principle that the legislator's powers should not be encroached upon, held that section 41 bis was compatible with the Constitution. However, it stated that by virtue of Article 15 of the Constitution a reasoned decision of the courts was required for any restriction on correspondence to be imposed. The Minister of Justice was accordingly not empowered to impose measures regarding prisoners' correspondence. E. Relevant provisions concerning preventive measures in individual cases 103. The power to impose preventive measures was introduced by Law no. 1423 of 27 December 1956. Such measures are intended to prevent individuals regarded as a “danger to society” from committing offences. The statute currently classifies three groups of people as a danger to society: (a) anyone who on the basis of factual evidence must be regarded as being an habitual offender; (b) anyone who on account of his conduct or life-style must be regarded, on the basis of factual evidence, as habitually deriving his income from the proceeds of crime; and (c) anyone who on account of his conduct must be regarded on the basis of factual evidence as having committed offences endangering the mental or physical integrity of minors or posing a threat to society, security or public order. 104. Section 3 of Law no. 1423/56 provides that persons who are a danger to society may be placed under special police supervision. That measure may be accompanied, if need be, by a requirement not to stay in one or more named towns or provinces or, if the person concerned is considered to be particularly dangerous, by a compulsory residence order requiring him to live in a named municipality ( obbligo di soggiorno ). 105. Jurisdiction to make such orders is vested exclusively in the court sitting in the provincial capital. The court sits in camera and must give a reasoned decision after hearing the representative of the public prosecutor's office and the person on whom it is proposed to impose the measure, who has the right to lodge memorials and to be represented by a lawyer. Both parties may appeal within ten days. Lodging an appeal has no suspensive effect. A further appeal lies from the court of appeal to the Court of Cassation. 106. When imposing a preventive measure, the court must fix its duration – between one and five years maximum – and specify the conditions with which the person concerned must comply. 107. Under Law no. 575 of 31 May 1965, which was amended in 1982, preventive measures in the form of an order for special supervision, compulsory residence or exclusion may be imposed on persons against whom there is evidence ( indiziati ) that they belong to a mafia -type organisation. 108. Law no. 327 of 3 August 1988 provides that a person can only be ordered to reside in the town where he has his domicile or residence. 109. Lastly, in cases where the trial has started, Law no. 55 of 19 March 1990 empowers the courts to suspend proceedings relating to the application of preventive measures until the conclusion of the trial. F. Provisions on disenfranchisement 110. Article 2 of Presidential Decree no. 223 of 20 March 1967 provides that, inter alia, persons on whom preventive measures have been imposed by a court order or an administrative decision shall be disenfranchised. 111. Article 32 § 1 (3) of that decree provides that in such cases the prefect ( questore ) empowered to enforce such measures shall notify the municipality where the person concerned resides of any decision entailing the loss of civil rights. The municipal electoral committee shall then remove the name of the person concerned from the electoral register, even outside one of the usual periods for updating the lists. THE LAW I. Alleged violation of Article 3 of the Convention 112. The applicant complained that during the first months of his detention in Pianosa Prison he had been subjected to 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.” A. Allegation of ill-treatment at Pianosa Prison 113. The Government acknowledged that the situation in Pianosa Prison during the summer and autumn of 1992 was very difficult, in particular because of the extremely tense atmosphere at the time. 114. Initially, the Government had affirmed before the Commission: “These deplorable acts were committed by certain warders on their own initiative; such transgressions cannot be regarded as forming part of a general policy. Such reprehensible conduct, unforeseen and unwanted – just the reverse: it constituted a criminal offence – cannot engage the responsibility of the State, which on the contrary has responded through the judicial authorities in order to re-establish the rule of law that such episodes serve to undermine.” 115. However, at the hearing before the Court, the Government made a preliminary submission that, in the absence of any cogent medical evidence, the level of severity required for a violation of Article 3 of the Convention could not be regarded as having been attained in the instant case. 116. In any event, the Government disagreed with the Commission's conclusion that the Italian State had failed to react to the acts of violence committed by its agents. The Government argued that the fact that the investigation to identify the warders allegedly responsible for the ill ‑ treatment had been unsuccessful did not amount to a violation of Article 3, as the Court's case-law on the subject could not be construed as meaning that a State failed to satisfy its obligations under Article 3 of the Convention unless the investigation led to a conviction. The issue was rather whether the investigation had been conducted diligently or whether the authorities had been guilty of errors or omissions. In the present case, the authorities conducting the investigation had shown resolve and spared no effort to identify those responsible. On the contrary, it was the applicant who had been responsible for the failure of the investigation by not requesting a medical examination immediately after being subjected to the ill-treatment in question. Furthermore, the fact that the applicant, the only witness able to give direct evidence, had been unable to identify the warders from the photographs he had been shown indicated that any further action by the investigators would have been futile. 117. The applicant said that particularly between July and September 1992 he had been subjected to numerous acts of violence, humiliation, and debasement, threats and other forms of torture, both physical and mental (see paragraph 29 above). He had been slapped and struck on many occasions, and had suffered injuries to his fingers, knees and testicles. He had been subjected to body searches in the shower and had remained handcuffed during medical examinations. His protests had been futile, even dangerous. On one occasion when he had protested after his clothes had been torn by warders, he had been threatened, insulted and struck by one of the warders. As a result, his glasses and a false tooth had been damaged and – as his clinical records showed – he had been refused permission to have them repaired. The psychological disorders which he had suffered since being detained at Pianosa were confirmed by a medical certificate of 20 April 1996. 118. The applicant maintained that the government of the day was undoubtedly aware of the incidents at Pianosa Prison and had tolerated them. He referred on that point to a note drawn up by the Livorno judge responsible for the execution of sentences, in which it was stated that the methods used at Pianosa were intended as an instrument of intimidation of the prisoners. Further, the fact that his criminal complaint had been filed away on the ground that the offenders could not be identified marked approval of an unlawful act and demonstrated that the government of the day had been guilty of causing or encouraging events at Pianosa. 119. As the Court has stated on many occasions, Article 3 enshrines one of the most fundamental values of democratic societies. Even in the most difficult circumstances, such as the fight against terrorism and organised crime, the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment. 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 the Assenov and Others v. Bulgaria judgment of 28 October 1998, Reports of Judgments and Decisions 1998-VIII, p. 3288, § 93). The Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the victim's conduct (see the Chahal v. the United Kingdom judgment of 15 November 1996, Reports 1996-V, p. 1855, § 79). The nature of the offence allegedly committed by the applicant was therefore irrelevant for the purposes of Article 3. 120. The Court recalls that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim. In respect of a person deprived of his liberty, recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 (see the Tekin v. Turkey judgment of 9 June 1998, Reports 1998-IV, pp. 1517-18, §§ 52 and 53, and the Assenov and Others judgment cited above, p. 3288, § 94). 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, and also “degrading” because it was such as to arouse in its victims feelings of fear, anguish and inferiority capable of humiliating and debasing them. 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. The question whether the purpose of the treatment was to humiliate or debase the victim is a further factor to be taken into account (see, for instance, V. v. the United Kingdom [GC], no. 24888/94, § 71, ECHR 1999-IX, and the Raninen v. Finland judgment of 16 December 1997, Reports 1997-VIII, pp. 2821-22, § 55), but the absence of any such purpose cannot conclusively rule out a finding of violation of Article 3. 121. Allegations of ill-treatment must be supported by appropriate evidence (see, mutatis mutandis, the Klaas v. Germany judgment of 22 September 1993, Series A no. 269, pp. 17-18, § 30). To assess this evidence, the Court adopts the standard of proof “beyond reasonable doubt” but adds that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, pp. 64-65, § 161 in fine ). 122. In the instant case, the ill-treatment complained of by the applicant consisted of, on the one hand, being slapped, blows, squeezing of the testicles and baton blows and, on the other, insults, unnecessary body searches, acts of humiliation (such as being required to remain in handcuffs during medical examinations), intimidation and threats. 123. The Court observes at the outset that at the hearing before it the Government argued that there was no medical evidence to show that the treatment had attained the level of severity required for there to be a violation of the provision relied on. Although that argument was not raised at an earlier stage in the proceedings, the Court must nevertheless examine it in view of the importance and seriousness of a finding of a violation of Article 3 of the Convention. 124. The Court notes that, as the Government said, the applicant has not produced any conclusive evidence in support of his allegations of ill ‑ treatment or supplied a detailed account of the abuse to which the warders at Pianosa Prison allegedly subjected him, particularly between July and September 1992. He confined himself to describing a situation that he said was widespread at Pianosa at the time and to referring to the note of 12 December 1996 of the President of the court responsible for the execution of sentences (see paragraph 50 above). Indeed, the only concrete evidence furnished by the applicant on this issue, namely the Pianosa Prison medical register (see paragraphs 31-33 above), a medical report of 24 March 1995 and the results of a scan of his knees dated 3 April 1996 (see paragraph 34 above), and a certificate regarding his mental health drawn up on 20 March 1996 (see paragraph 35 above), do not suffice to fill that gap. Thus, there is nothing in the prison medical register to show that the problems the applicant had with his false tooth were caused by blows from a warder. Nor is there any evidence that the injuries to his knees were caused by ill-treatment, especially as he did not seek medical attention on that account until 10 August 1993 (while asserting that the ill-treatment had considerably diminished and even ceased by the end of September 1992). Moreover, the certificate indicating that he suffered from psychological disorders was dated about three and a half years after the incidents in issue and does not point to any causal link (it merely states that the disorders had begun three years earlier – in other words, after the incidents complained of had ceased). 125. The Court recognises that it may prove difficult for prisoners to obtain evidence of ill-treatment by their prison warders. In that connection, it notes that the applicant alleged that the warders at Pianosa applied pressure on the prisoners by threatening reprisals if they were denounced. It observes, however, that the applicant has not suggested, for example, that he was ever refused permission to see a doctor. In addition, the applicant made several applications through his lawyers to the judicial authorities, notably for release (see paragraphs 14, 15, 19 and 21 above); those applications were made shortly after September 1992, that is to say not long after the ill-treatment concerned had diminished or even ceased. Yet he did not complain about his treatment until the preliminary hearing on 2 October 1993 (see paragraph 36 above). The applicant has given no explanation for that substantial delay. 126. The Court has examined the note of the President of the court responsible for the execution of sentences dated 12 December 1996; it was the Government which produced it to the Commission (see paragraph 50 above). While not underestimating the seriousness of the matters criticised therein, the Court cannot lose sight of the fact that the note represents no more than a general assessment that was not based on concrete and verifiable facts. It is therefore unable to treat it as decisive evidence. 127. In these circumstances, the Court considers that the material it has before it regarding the applicant's assertion that he was subjected to physical and mental ill-treatment in Pianosa Prison does not constitute sufficient evidence to support that conclusion. 128. Nor is that finding called into question by the general conditions in Pianosa Prison at the material time, as described by the Livorno judge responsible for the execution of sentences in his report of 5 September 1992 (see paragraphs 42-43 above): the report contains no evidence directly relevant to the applicant's position and the severity and extent of the abuse described in it were reduced to less alarming proportions following inquiries made by the prison authorities concerned (see paragraphs 44-46 above). 129. In conclusion, since the evidence before it does not enable the Court to find beyond all reasonable doubt that the applicant was subjected to treatment that attained a sufficient level of severity to come within the scope of Article 3, the Court considers that there is insufficient evidence for it to conclude that there has been a violation of Article 3 of the Convention on account of the alleged ill-treatment. B. The nature of the investigations carried out 130. The Court observes that, when taken together, the statements made by the applicant to the Trapani investigating judge at the hearing on 2 October 1993 and to the carabinieri on 5 January 1994 gave reasonable cause for suspecting that the applicant had been subjected to improper treatment in Pianosa Prison. It must not be forgotten either that the conditions of detention at Pianosa had been the centre of media attention during the period concerned (see paragraph 44 above), and that other prisoners had complained of treatment similar to that described by the applicant (see paragraphs 36 and 43 above), thus lending further credibility to his allegations. 131. The Court considers that 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. As with an investigation under Article 2, such investigation should be capable of leading to the identification and punishment of those responsible (see, in relation to Article 2 of the Convention, the McCann and Others v. the United Kingdom judgment of 27 September 1995, Series A no. 324, p. 49, § 161; the Kaya v. Turkey judgment of 19 February 1998, Reports 1998-I, p. 324, § 86; and the Yaşa v. Turkey judgment of 2 September 1998, Reports 1998-VI, p. 2438, § 98). Otherwise, the general legal prohibition of torture and inhuman and degrading treatment and punishment would, despite its fundamental importance (see paragraph 119 above), 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 the Assenov and Others judgment cited above, p. 3290, § 102). 132. The Court notes that after the investigating judge had informed the relevant public prosecutor's office of the allegations of ill-treatment made by the applicant at the preliminary hearing, the State authorities conducted certain investigations into those allegations (see paragraphs 37-41 above). It is not, however, satisfied that those investigations were sufficiently thorough and effective to satisfy the aforementioned requirements of Article 3. 133. The Court observes at the outset that the investigation by the Livorno public prosecutor's office was very slow: after the applicant was interviewed by the carabinieri on 5 January 1994, fourteen months elapsed before he was given a further appointment with a view to identifying those responsible. Yet the file shows that the only action taken during that interval was the obtaining of photocopies (not prints) of photographs of the warders who had worked at Pianosa. It will be recalled that throughout that period the applicant remained a prisoner at Pianosa. 134. The Court finds it particularly striking that although the applicant repeated on 9 March 1995 that he would be able to recognise the warders concerned if he could see them in person, nothing was done to enable him to do so and, just nine days later, the public prosecutor's office sought and was granted an order for the case to be filed away on the ground not that there was no basis to the allegations but that those responsible had not been identified. 135. The inactivity of the Italian authorities is made even more regrettable by the fact that the applicant's complaint was not an isolated one. The existence of controversial practices by warders at Pianosa Prison had been publicly and energetically condemned even by authorities of the State (see paragraphs 42-45 above). 136. In these circumstances, having regard to the lack of a thorough and effective investigation into the credible allegation made by the applicant that he had been ill-treated by warders when detained at Pianosa Prison, the Court holds that there has been a violation of Article 3 of the Convention. C. Allegedly inhuman and degrading nature of transfers from Pianosa 137. The applicant also alleged that the conditions in which prisoners were transferred from Pianosa to other prisons were inhuman and degrading. 138. The Court observes, however, that the applicant has not supplied detailed information regarding how many times he was transferred from Pianosa or the dates and precise conditions of such transfers. Nor did he complain about the conditions of transfer to the relevant authorities. Like the Commission, the Court consequently considers that there is insufficient evidence for it to conclude that there has been a violation of Article 3 on that account. II. Alleged violation of Article 5 § 3 of the Convention 139. The applicant complained of the length of his detention pending trial and alleged a violation of Article 5 § 3 of the Convention, which provides: “3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” 140. The Government contested that submission whereas the Commission agreed with it. A. Loss of standing as a victim 141. The Government submitted that as the Palermo Court of Appeal had awarded the applicant a sum as compensation for the time he had spent in detention pending trial, the respondent State had acknowledged, at least in substance, and afforded redress for any violation of Article 5 § 3 of the Convention. Accordingly, the applicant could no longer claim to be the victim of such a violation. 142. In the case of Amuur v. France ( judgment of 25 June 1996, Reports 1996-III, p. 846, § 36) and in Dalban v. Romania ([GC], no. 28114/95, § 44, ECHR 1999-VI), the Court reiterated 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”. 143. In the instant case, even though the Palermo Court of Appeal, in a decision of 20 January 1998 lodged at the registry on 23 January 1998, acceded to the applicant's claim for compensation for unjust detention, it based its decision on Article 314 § 1 of the Code of Criminal Procedure, which affords a right to reparation to “anyone who has been acquitted in a judgment that has become final” (see paragraph 92 above). The detention is deemed to be “unjust” as a result of the acquittal, and an award under Article 314 § 1 does not amount to a finding that the detention did not satisfy the requirements of Article 5 of the Convention. While it is true that the length of the applicant's detention pending trial was taken into account in calculating the amount of reparation, there is no acknowledgment in the judgment concerned, either express or implied, that it had been excessive. 144. In conclusion, the Court considers that despite the payment of a sum as reparation for the time he spent in detention pending trial, the applicant can still claim to be a “victim” within the meaning of Article 34 of the Convention of a violation of Article 5 § 3. B. Merits of the complaint 1. Period to be taken into consideration 145. The parties and the Commission agreed that the period to be taken into consideration began on 21 April 1992, when the applicant was taken into custody. 146. As to when the period ended, the applicant and the Commission took the date of the applicant's release (13 November 1994 – see paragraph 24 above). The Government, on the other hand, contended that the period ended on 12 November 1994, when the judgment of the court of first instance was delivered (see paragraph 23 above). 147. The Court reiterates that the end of the period referred to in Article 5 § 3 is “the day on which the charge is determined, even if only by a court of first instance” (see the Wemhoff v. Germany judgment of 27 June 1968, Series A no. 7, pp. 23-24, § 9). The applicant's detention pending trial for the purposes of Article 5 § 3 of the Convention therefore ended on 12 November 1994. 148. The period to be taken into consideration therefore lasted almost two years and seven months. 2. The reasonableness of the length of detention (a) Submissions of those appearing before the Court 149. The applicant submitted that the length of his detention pending trial could not be regarded as justified for the purposes of Article 5 § 3 of the Convention. There was no serious evidence of guilt as the accusations were based on the false allegations of a single pentito and there was no risk of further offending. He had been unlucky enough to find himself accused of belonging to the Mafia at a time when the Italian authorities wished to demonstrate the efforts they were making to clamp down on that organisation. He had had no prospect, therefore, of being released despite the fact that he had no criminal record. 150. The Government accepted that the applicant's detention pending trial had been lengthy, but contended that it had been justified in the instant case in view of the weighty evidence against him. The Government argued in particular that where, as here, a case concerned Mafia-related offences, the authorities had an obligation to conduct an exceptionally stringent and thorough inquiry through a “maxi-trial”, which inevitably entailed very lengthy and complex investigations and hearings. 151. The Commission considered that the longer the investigation went on the more necessary it became for the authorities to have concrete and specific proof of the presumed risks of the applicant's absconding, reoffending or tampering with evidence. The presumption that arose under Article 273 of the Code of Criminal Procedure did not by itself justify the applicant's being held for so long. Furthermore, the Commission considered that the proceedings in issue were not conducted with the expedition that Article 5 § 3 demanded. Despite the fact that the evidence against the applicant was very weak, the Government had confined themselves to asserting, in general terms, that complex banking and fiscal investigations had to be conducted, without identifying the steps that had to be and were in fact taken. (b) The Court's assessment ( i ) Principles established under the Court's case-law 152. Under the Court's case-law, the issue of whether a period of detention is reasonable cannot be assessed in abstracto. Whether it is reasonable for an accused to remain in detention must be assessed in each case according to its special features. Continued detention can be justified in a given case only 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 (see, among other authorities, the W. v. Switzerland judgment of 26 January 1993, Series A no. 254-A, p. 15, § 30). 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 examine all the facts arguing for or against the existence of a genuine requirement of public interest justifying, with due regard to the principle of the presumption of innocence, a departure from the rule of respect for individual liberty and set them out in their decisions dismissing the applications for release. It is essentially on the basis of the reasons given in these decisions and of the true facts mentioned 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 of the Convention. 153. The persistence of 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. In such cases, the Court must 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 ascertain whether the competent national authorities displayed “special diligence” in the conduct of the proceedings (see the Contrada v. Italy judgment of 24 August 1998, Reports 1998-V, p. 2185, § 54, and the I.A. v. France judgment of 23 September 1998, Reports 1998-VII, pp. 2978-79, § 102). (ii) Application of those principles in the instant case 154. The Court observes that the relevant authorities examined whether the applicant should remain in detention following his applications for release on three occasions: 6 May 1992, 29 December 1992 and 8 February 1993. In addition, on 22 June 1993 they considered whether the maximum permitted period for detention pending trial should be extended (see paragraphs 14-20 above). In refusing to release the applicant, the authorities relied simultaneously on the existence of serious evidence of his guilt, the danger of pressure being brought to bear on witnesses and the risk of evidence being tampered with. They also relied on the presumption created by Article 275 § 3 of the Code of Criminal Procedure (see paragraph 87 above). In deciding to prolong the detention pending trial they invoked the risk of evidence being tampered with, the fact that the accused were dangerous, the complexity of the case and the needs of the investigation, including the need to conduct highly complex banking inquiries. (α) Whether reasonable grounds for suspecting the applicant remained 155. As regards “reasonable suspicion”, the Court reiterates that the fact that an applicant has not been charged or brought before a court does not necessarily mean that the purpose of his detention was not in accordance with Article 5 § 1 (c). The existence of such a purpose must be considered independently of its achievement and sub-paragraph (c) of Article 5 § 1 does not presuppose that the police should have obtained sufficient evidence to bring charges, either at the point of arrest or while the applicant was in custody (see the Erdagöz v. Turkey judgment of 22 October 1997, Reports 1997-VI, p. 2314, § 51, and the Brogan and Others v. the United Kingdom judgment of 29 November 1988, Series A no. 145-B, pp. 29-30, § 53). However, for there to be reasonable suspicion there must be facts or information which would satisfy an objective observer that the person concerned may have committed an offence (see the Erdagöz judgment cited above, p. 2314, § 51 in fine, and the Fox, Campbell and Hartley v. the United Kingdom judgment of 30 August 1990, Series A no. 182, pp. 16-17, § 32). 156. In the instant case, the allegations against the applicant came from a single source, a pentito who had stated in 1992 that he had learned indirectly that the applicant was the treasurer of a mafia -type organisation (see paragraph 10 above). According to the authorities in question, in May 1992 those statements constituted sufficient evidence to justify keeping the applicant in detention, given the general credibility and trustworthiness of the pentito concerned (see paragraph 12 above). 157. The Court is conscious of the fact that the cooperation of pentiti is a very important weapon in the Italian authorities' fight against the Mafia. However, the use of statements by pentiti does give rise to difficult problems as, by their very nature, such statements are open to manipulation and may be made purely in order to obtain the advantages which Italian law affords to pentiti, or for personal revenge. The sometimes ambiguous nature of such statements and the risk that a person might be accused and arrested on the basis of unverified allegations that are not necessarily disinterested must not, therefore, be underestimated (see Contrada v. Italy, application no. 27143/95, Commission decision of 14 January 1997, Decisions and Reports 88-B, p. 112). 158. For these reasons, as the domestic courts recognise, statements of pentiti must be corroborated by other evidence. Furthermore, hearsay must be supported by objective evidence. 159. That, in the Court's view, is especially true when a decision is being made whether to prolong detention pending trial. While a suspect may validly be detained at the beginning of proceedings on the basis of statements by pentiti, such statements necessarily become less relevant with the passage of time, especially where no further evidence is uncovered during the course of the investigation. 160. In the instant case, the Court notes that, as the Trapani District Court and Palermo Court of Appeal confirmed in their decisions acquitting the applicant, there was no evidence to corroborate the hearsay evidence of B.F. On the contrary, B.F.'s main, if indirect, source of information had died in 1989 and had, in turn, obtained it on hearsay from another person who had also been killed before he could be questioned. Furthermore, B.F.'s statements had already been contradicted during the course of the investigation by other pentiti who had said that they did not recognise the applicant (see paragraph 18 above). 161. In these circumstances, very compelling reasons would be required for the applicant's lengthy detention (two years and seven months) to have been justified under Article 5 § 3. (β) The “other reasons” for the continued detention 162. The national courts referred to the risk of pressure being brought to bear on witnesses and of evidence being tampered with, the fact that the accused were dangerous, the complexity of the case and the requirements of the investigation. They relied on the presumption created by Article 275 § 3 of the Code of Criminal Procedure (see paragraph 87 above). 163. The Court observes that the grounds stated in the relevant decisions were reasonable, at least initially, though very general, too. The judicial authorities referred to the prisoners as a whole and made no more than an abstract mention of the nature of the offence. They did not point to any factor capable of showing that the risks relied on actually existed and failed to establish that the applicant, who had no record and whose role in the mafia -type organisation concerned was said to be minor (the prosecutor called for a three-year sentence in his case), posed a danger. No account was taken of the fact that the accusations against the applicant were based on evidence which, with time, had become weaker rather than stronger. 164. The Court accordingly considers that the grounds stated in the impugned decisions were not sufficient to justify the applicant's being kept in detention for two years and seven months. 165. In short, the detention in issue infringed Article 5 § 3 of the Convention. III. Alleged violation of Article 5 § 1 of the Convention 166. The applicant submitted that he had been held in detention unlawfully for twelve hours after his acquittal. 167. Article 5 § 1 of the Convention provides: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (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.” 168. The applicant maintained that he should have been freed immediately after his acquittal. A check could have been performed before the hearing as to whether other grounds for his detention existed, in case he was acquitted. The remaining administrative formalities could have been carried out after his release. 169. The Government pointed out that although a prisoner is considered “free” once his acquittal has been pronounced at a hearing, he cannot be released until certain administrative formalities have been performed, first and foremost being a check to see whether other reasons for detaining him exist. Since it was for the prison authorities to carry out that check on the instructions of the public prosecutor's office, the prisoner had to be brought back to the prison before he could be released. In the instant case, the applicant had had to be taken from Trapani, where the trial took place, to Termini Imerese – a distance of approximately 120 km. As regards the delay caused by the absence of the registration officer, the Minister of Justice had acknowledged in a note to the Commission dated 31 January 1997 that it had been unjustified. Furthermore, the Minister had explained that since March 1996 instructions had been given to the governors of penal institutions so that prisoners could be released at any time, including at night. 170. The Court reiterates that the list of exceptions to the right to liberty secured in Article 5 § 1 is an exhaustive one and only a narrow interpretation of those exceptions is consistent with the aim of that provision, namely to ensure that no one is arbitrarily deprived of his or her liberty (see, among other authorities, the Giulia Manzoni v. Italy judgment of 1 July 1997, Reports 1997-IV, p. 1191, § 25, and the Quinn v. France judgment of 22 March 1995, Series A no. 311, pp. 17-18, § 42). 171. While it is true that for the purposes of Article 5 § 1 (c) detention ceases to be justified “on the day on which the charge is determined” (see paragraph 147 above) and that, consequently, detention after acquittal is no longer covered by that provision, “some delay in carrying out a decision to release a detainee is often inevitable, although it must be kept to a minimum” (see the Giulia Manzoni judgment cited above, p. 1191, § 25 in fine ). 172. The Court observes, however, that in the instant case the delay in the applicant's release was only partly attributable to the need for the relevant administrative formalities to be carried out. The additional delay in releasing the applicant between 12.25 a.m. and the morning of 13 November 1993 was caused by the registration officer's absence. It was only on the latter's return that it was possible to verify whether any other reasons existed for keeping the applicant in detention and to put in hand the other administrative formalities required on release (see paragraph 24 above). 173. In these circumstances, the applicant's continued detention after his return to Termini Imerese Prison did not amount to a first step in the execution of the order for his release and therefore did not come within sub ‑ paragraph 1 (c), or any other sub-paragraph, of Article 5. 174. Accordingly, there has been a violation of Article 5 § 1 on that account. IV. Alleged violation of Article 8 of the convention 175. The applicant complained that the Pianosa Prison authorities had censored his correspondence with his family and lawyer. Article 8 of the Convention provides: “1. Everyone has the right to respect for 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.” 176. The Commission unanimously expressed the view that Article 8 of the Convention had been violated in the present case as the interference with the applicant's right to respect for his correspondence was not “in accordance with the law”. It said that the applicable legislation – section 18 of Law no. 354 of 1975, which contains no rules as to the length of time for which prisoners' correspondence may be censored or the grounds on which an order for censorship may be made – did not indicate with sufficient clarity the extent of the relevant authorities' discretion in that sphere or provide guidance on how it was to be exercised. The Commission relied on the judgments of the Court in the Calogero Diana and Domenichini cases, which also concerned censorship of prisoners' correspondence (see the Calogero Diana v. Italy judgment of 15 November 1996, Reports 1996-V, pp. 1775-76, §§ 29-33, and the Domenichini v. Italy judgment of 15 November 1996, Reports 1996-V, pp. 1799-800, §§ 29-33). 177. In the light of the decision of the Court in its Calogero Diana and Domenichini judgments, the Government did not contest the Commission's conclusion. They explained that the Minister of Justice had introduced a bill in the Senate on 23 July 1999 for the amendment of the relevant statute to bring it into line with the aforementioned judgments of the Court. 178. The Court agrees with the Government and the Commission that there has been an “interference by a public authority” in the exercise of the applicant's right to respect for his correspondence, as guaranteed by paragraph 1 of Article 8. 179. Such 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 and, furthermore, is “necessary in a democratic society” in order to achieve them (see the following judgments : Silver and Others v. the United Kingdom, 25 March 1983, Series A no. 61, p. 32, § 84; Campbell v. the United Kingdom, 25 March 1992, Series A no. 233, p. 16, § 34; Calogero Diana cited above, p. 1775, § 28; Domenichini cited above, p. 1799, § 28; and Petra v. Romania, 23 September 1998, Reports 1998-VII, p. 2853, § 36). A. “In accordance with the law” 1. Periods from 21 April 1992 to 20 July 1992, 15 September 1993 to 21 February 1994 and 13 August 1994 to 13 November 1994 180. The censorship of the applicant's correspondence during the aforementioned periods was ordered by decisions of the Trapani District Court and was based on section 18 of Law no. 354 of 1975 (see paragraphs 54 and 58 above). However, the Court sees no reason to disagree with the Commission's view that, despite being based on that provision, the censorship of the applicant's correspondence did not comply with Article 8 of the Convention. 2. Period from 20 July 1992 to 15 September 1993 181. During this period, the censorship was based on an order of the Minister of Justice made pursuant to section 41 bis of Law no. 354 of 1975 (see paragraphs 55-56 above). 182. The Court notes that the Italian Constitutional Court, relying on Article 15 of the Constitution, has held that the Minister of Justice had no power to take measures concerning prisoners' correspondence and had therefore acted ultra vires under Italian law (see paragraph 102 above). The censorship of the applicant's correspondence during this period was therefore illegal under national law and was not “in accordance with the law” within the meaning of Article 8 of the Convention. 3. Period from 21 February 1994 to 10 June 1994 183. There was no legal basis for the censorship of the applicant's correspondence during this period (see paragraph 59 above). 4. Conclusion 184. In conclusion, the various measures complained of by the applicant regarding the censorship of his correspondence were at no time “in accordance with the law” within the meaning of Article 8 of the Convention. There has therefore been a violation of that Article. B. The purpose and necessity of the interference 185. In the light of the foregoing conclusion, the Court does not consider it necessary in the instant case to examine whether the other requirements of paragraph 2 of Article 8 were satisfied. V. Alleged violation of Article 6 § 3 of the Convention 186. The applicant complained also of a violation of his defence rights in that his correspondence with his lawyer was censored. He relied on Article 6 of the Convention, the relevant part of which provides: “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; ...” 187. The Court considers that in the light of its conclusion regarding Article 8 of the Convention this complaint is absorbed by the preceding complaint. 188. Furthermore, and in any event, the Court observes that the applicant has not stated in what way his defence was adversely affected by the censorship of his correspondence with his lawyer; moreover, he was finally acquitted at the end of the proceedings in question. VI. Alleged violation of Article 2 of Protocol No. 4 to the Convention 189. The applicant maintained that the fact that he had been placed under special police supervision despite his acquittal amounted to a breach of Article 2 of Protocol No. 4, which provides: “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.” 190. The Government stressed the importance of preventive measures where suspected Mafia members were concerned. They added that the fact that the applicant had been acquitted did not affect the lawfulness of the preventive measures that had been imposed on him. In the Italian legal order, criminal penalties and preventive measures were quite separate. The former constituted a response to an unlawful act and the attendant consequences; the latter were a means of preventing the occurrence of such acts. In other words, a penalty was imposed when an offence had already been committed, whereas preventive measures were intended to guard against the risk of future offences. Indeed the Court had accepted that in the Raimondo judgment (see the Raimondo v. Italy judgment of 22 February 1994, Series A no. 281-A, p. 19, § 39). In the present case, although the applicant had been acquitted (the Government emphasised in that connection that the expression “with the benefit of doubt” had now been abolished), there was serious evidence of his guilt which had justified his committal and that evidence had not been rebutted at trial. 191. The applicant submitted that following his acquittal on the ground that “he had not committed the offence”, he should no longer have been treated as a Mafia criminal, as the “serious evidence” against him had, contrary to the Government's contention, been disproved at trial. 192. The Commission considered that the grounds relied on by the Italian courts, in particular the fact that the applicant had family connections with the Mafia, were insufficient. 193. The Court observes that the applicant was for three years (from 19 November 1994 to 18 November 1997 – see paragraphs 69 and 76 above) subjected to very severe restrictions on his freedom of movement, which undoubtedly amounted to an interference with his rights guaranteed by Article 2 of Protocol No. 4 (see the Guzzardi v. Italy judgment of 6 November 1980, Series A no. 39, p. 33, § 92, and the Raimondo judgment cited above, p. 19, § 39). 194. Those measures were based on Laws nos. 1423/56, 575/65, 327/88 and 55/90 (see paragraphs 103-09 above), and were therefore “in accordance with law” within the meaning of the third paragraph of Article 2. They clearly pursued legitimate aims: “maintenance of ordre public ” and the “prevention of crime” (see the Raimondo judgment, ibid.). 195. However, the measures also had to be “necessary in a democratic society” for those legitimate aims to be achieved. In this connection, the Court considers that it is legitimate for preventive measures, including special supervision, to be taken against persons suspected of being members of the Mafia, even prior to conviction, as they are intended to prevent crimes being committed. Furthermore, an acquittal does not necessarily deprive such measures of all foundation, as concrete evidence gathered at trial, though insufficient to secure a conviction, may nonetheless justify reasonable fears that the person concerned may in the future commit criminal offences. 196. In the instant case, the decision to put the applicant under special supervision was taken on 10 May 1993 at a time when there effectively existed some evidence that he was a member of the Mafia, but the measure was not put into effect until 19 November 1994 after his acquittal by the Trapani District Court (see paragraphs 63 and 69 above). The Court has examined the grounds relied on by the Italian courts for refusing to rescind the measure after the applicant's acquittal, namely B.F.'s assertion that the applicant had contacts in the Mafia clan as was proved by the fact that his deceased brother-in-law had been the head of the main clan (decision of the Trapani District Court of 11 June 1996 – see paragraph 72 above) and the fact that “the applicant had not shown any real change in his lifestyle or that he was genuinely repentant” (decision of the Trapani District Court of 21 October 1997 – see paragraph 75 above). The Court fails to see how the mere fact that the applicant's wife was the sister of a Mafia boss, since deceased, could justify such severe measures being taken against him in the absence of any other concrete evidence to show that there was a real risk that he would offend. As regards changing his lifestyle and repenting, the Court is mindful of the fact that the applicant, who has no criminal antecedents, was acquitted of the charge that he was a member of the Mafia on the ground that no concrete evidence in support of that allegation could be found during the preliminary investigation and trial. 197. In conclusion, and without underestimating the threat posed by the Mafia, the Court concludes that the restrictions on the applicant's freedom of movement cannot be regarded as having been “necessary in a democratic society”. There has therefore been a violation of Article 2 of Protocol No. 4. VII. Alleged violation of Article 3 of Protocol No. 1 to The Convention 198. The applicant considered that the fact that, despite his acquittal, he had been disenfranchised infringed 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.” 199. The Government maintained that the measure was intended to prevent the Mafia exercising any influence over elected bodies. In view of the real risk that persons suspected of belonging to the Mafia might exercise their right to vote in favour of other members of the Mafia, the temporary disenfranchisement of the applicant was not disproportionate. 200. The Commission, on the other hand, found the measure to have been disproportionate, particularly in view of the fact that the applicant had been acquitted and of the danger that he would subsequently be alienated from society. 201. The Court points out that implicit in Article 3 of Protocol No. 1, which provides for “free” elections at “reasonable intervals” “by secret ballot” and “under conditions which will ensure the free expression of the opinion of the people”, are the subjective rights to vote and to stand for election. Although those rights are important, they are not absolute. Since Article 3 recognises them without setting them forth in express terms, let alone defining them, there is room for implied limitations (see the Mathieu ‑ Mohin and Clerfayt v. Belgium judgment of 2 March 1987, Series A no. 113, p. 23, § 52). In their internal legal orders the Contracting States make the rights to vote and to stand for election subject to conditions which are not in principle precluded under Article 3. They have a wide margin of appreciation in this sphere, but 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 the 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 (see the Gitonas and Others v. Greece judgment of 1 July 1997, Reports 1997 ‑ IV, pp. 1233-34, § 39, and Matthews v. the United Kingdom [GC], no. 24833/94, § 63, ECHR 1999-I). 202. The Court observes that persons who are subject to special police supervision are automatically struck off the electoral register as they forfeit their civil rights because they represent “a danger to society” or, as in the instant case, are suspected of belonging to the Mafia (see paragraphs 107 and 110 above). The Government pointed to the risk that persons “suspected of belonging to the Mafia” might exercise their right of vote in favour of other members of the Mafia. 203. The Court has no doubt that temporarily suspending the voting rights of persons against whom there is evidence of Mafia membership pursues a legitimate aim. It observes, however, that although the special police supervision measure against the applicant was in the instant case imposed during the course of the trial, it was not applied until the trial was over, once the applicant had been acquitted on the ground that “he had not committed the offence”. The Court does not accept the view expressed by the Government that the serious evidence of the applicant's guilt was not rebutted during the trial. That affirmation is in contradiction with the tenor of the judgments of the Trapani District Court (see paragraph 23 above) and the Palermo Court of Appeal (see paragraph 26 above). When his name was removed from the electoral register, therefore, there was no concrete evidence on which a “suspicion” that the applicant belonged to the Mafia could be based (see, mutatis mutandis, paragraph 196 above). In the circumstances, the Court cannot regard the measure in question as proportionate. There has therefore been a violation of Article 3 of Protocol No. 1. VIII. 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. Damage 205. The applicant claimed 2,000,000,000 Italian lire (ITL) for physical and mental injury. He also claimed ITL 1,000,000,000 for pecuniary damage suffered as a result of the confiscation of some of his immovable property and the closing down of his discotheque during the trial until 1995 and the attachment of his shareholding in a company. 206. The Government contended that there was no causal link between the alleged pecuniary damage and the alleged violations and emphasised that the applicant had not complained before the Convention institutions about the confiscation and attachment. As regards the length of detention, the Government said that the applicant had already obtained sufficient reparation before the domestic courts. 207. As regards the confiscation of the applicant's land and attachment of his company shareholding, the Court accepts the Government's argument that there is no causal link between the sums claimed for pecuniary damage and the violations found in the instant case. It must also take into account the fact that the applicant has obtained reparation from the national courts for any damage that he might have sustained by reason of his detention pending trial. The Court nevertheless considers that having regard to the seriousness and number of violations found in the instant case the applicant should be awarded compensation for non-pecuniary damage. Ruling on an equitable basis, as provided for in Article 41 of the Convention, the Court decides to award ITL 75,000,000. B. Costs and expenses 208. Lastly, the applicant sought reimbursement of his costs and fees incurred before the Commission and the Court, but did not quantify the amount. 209. The Government left the issue to the Court's discretion. 210. Having regard to the fact that the applicant, who was legally aided before the Commission, has not quantified his claim for costs and expenses or furnished any fee note, the Court dismisses it (see the Calogero Diana judgment cited above, p. 1778, § 47, and the Papageorgiou v. Greece judgment of 22 October 1997, Reports 1997-VI, p. 2293, § 60). However, the applicant must have incurred some costs for the hearing before the Court. The Court considers it reasonable to award him ITL 6,000,000 under this head. C. Default interest 211. 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 that there had been a violation of Article 3 of Protocol No. 1 to the Convention. It noted in particular that, as someone who was subject to special police supervision because he was suspected of belonging to the Mafia, the applicant had automatically forfeited his civic rights and been struck off the electoral register. The Court had no doubt that temporarily suspending the voting rights of persons against whom there was evidence of Mafia membership pursued a legitimate aim. It observed, however, that although the special police-supervision measure against the applicant had in the instant case been imposed during the course of the trial, it had not been applied until the trial was over and the applicant acquitted on the ground that “he had not committed the offence”, the serious evidence of the applicant’s guilt having been rebutted during the trial. When his name was removed from the electoral register, therefore, there was no concrete evidence on which a suspicion that the applicant belonged to the Mafia could have been based. The Court could not regard that measure as proportionate. |
265 | (Suspected) terrorists | II. RELEVANT DOMESTIC LAW A. Remedies against a deportation order in Italy 58. A deportation order is subject to appeal to the RAC, the court having jurisdiction to examine the lawfulness of any administrative decision and set it aside where it disregards an individual ’ s fundamental rights (see, for example, Sardinas Albo v. Italy ( dec. ), no. 56271/00, ECHR 2004-I). An appeal to the Consiglio di Stato lies against decisions of the RAC. 59. In proceedings before the RAC, a stay of execution of the administrative decision complained of is not automatic, but may be granted if requested (see Sardinas Albo, cited above ). However, where – as in the applicant ’ s case – deportation has been ordered under the terms of Legislative Decree no. 144 of 2005, appeals to the RAC or the Consiglio di Stato cannot stay enforcement of the deportation order (Article 4 §§ 4 and 4 bis of the Legislative Decree). B. Reopening of a trial conducted in the defendant ’ s absence in Tunisia 60. In the French translation produced by the Government, the relevant provisions of the Tunisian Code of Criminal Procedure read as follows: Article 175 “Where a defendant fails to appear on the appointed date, having been personally informed of the obligation to do so, the court shall proceed to judgment, giving a decision which is deemed to follow adversarial proceedings. Where a defendant who fails to appear has been lawfully summoned, though not informed in person, judgment is given by default. Notification of judgment by default shall be given by the registrar of the court which gave judgment. An appeal against a judgment by default must be lodged by the appellant in person, or his representative, with the registry of the court which has given judgment, within the ten days following service of the defendant ’ s copy. If the appellant lives outside Tunisian territory, the time allowed for appeal shall be increased to thirty days. An appeal shall be lodged either by means of a verbal declaration, which shall be formally recorded forthwith, or by means of a written declaration. The appellant must sign; if he refuses or is unable to sign, that circumstance shall be formally recorded. The registrar shall immediately fix a date for the hearing and inform the appellant thereof; in all cases the hearing must be held within one month from the date of the appeal. The appellant or his representative shall inform the interested parties, with the exception of State counsel, and have them summoned by an officer of the court, at least three days before the date of the hearing, failing which the appeal shall be dismissed.” Article 176 “Where judgment has not been served on the defendant in person or where it does not appear from the documents recording enforcement of the judgment that the defendant had knowledge of it, an appeal shall lie until expiry of the limitation period applicable to the penalty concerned.” Article 180 (as amended by Law no. 2004-43 of 17 April 2000 ) “On appeal, execution of a judgment shall be stayed. Where the sentence is capital punishment, the appellant shall be committed to prison and the sentence shall not be enforced before the judgment has become final.” Article 213 “An appeal shall no longer be admissible, save where the appellant has been prevented from appealing by circumstances beyond his or her control, unless lodged within ten days of the date of delivery of the judgment deemed to be adversarial within the meaning of the first paragraph of Article 175, or after expiry of the time allowed where judgment has been given by default, or after notification of the judgment likewise by default. For State counsel and assistant State counsel at courts of appeal the time allowed for appeal shall be sixty days from the date of delivery of the judgment. In addition, on pain of inadmissibility, they must give notice of their appeal within that time to the defendant and any persons found liable towards civil parties.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 95. The applicant submitted that enforcement of his deportation would expose him to the risk of 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.” 96. The Government rejected that argument. A. Admissibility 97. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions (a) The applicant 98. The applicant submitted that it was “a matter of common knowledge” that persons suspected of terrorist activities, in particular those connected with Islamist fundamentalism, were frequently tortured in Tunisia. He had lodged a request for political asylum which had been refused by the Milan police authority without his being interviewed by the Italian refugee - status board. His attempts to obtain a residence permit had failed because the Tunisian consulate had refused to renew his passport, a document which the Italian authorities had asked him to produce. In the aggregate these circumstances amounted to “persecution”. 99. In addition, the investigations conducted by Amnesty International and by the US Department of State showed that torture was practised in Tunisia and that some persons deported there had quite simply disappeared. The numerous press articles and witness accounts he had produced condemned the treatment of political prisoners and their families. 100. The applicant ’ s family had received a number of visits from the police and was constantly subject to threats and provocations. His sister had twice tried to kill herself because of this. 101. In view of the serious risks to which he would be exposed if he were to be deported, the applicant considered that a mere reminder of the treaties signed by Tunisia could not be regarded as sufficient. (b) The Government 102. The Government considered it necessary in the first place to provide an account of the background to the case. After the attacks of 11 September 2001 on the Twin Towers in New York, the Italian police, after it had been tipped off by intelligence services, uncovered an international network of militant Islamists, mainly composed of Tunisians, and placed it under surveillance. In May 2002 one of the leaders of this network, Mr Faraj Faraj Hassan, was arrested in London. The applicant had in the meantime left Milan for Iran, where he had spent time in an al- Qaeda training camp. He then returned to Italy, from where he frequently travelled to the Côte d ’ Azur. There, with the help of another Tunisian living in San Remo, Mr Imed Zarkaoui, he met his brother, Mr Fadhal Saadi. 103. Mr Zarkaoui had been given the job of finding fulminate of mercury to make detonators, while in Italy another accomplice was seeking information about night-filming cameras. Contact was established with Malaysia, where the group which was to carry out the attacks were standing by, and weapons were distributed to some militants. The Islamist cell to which the applicant belonged had embarked on a large-scale enterprise involving the production of false identity papers and their distribution to its members. The Government rejected the applicant ’ s argument that the offence – forgery – of which he had been convicted in Italy was not linked to the activity of terrorist groups; in that connection they pointed out that although the applicant and one of his co-defendants held legal residence permits they had provided themselves with false papers. 104. In that context, in October 2002, a number of European police forces launched “Operation Bazar”, as a result of which the applicant, Mr Zarkaoui and three other persons were arrested in Italy. Mr Fadhal Saadi managed to evade an attempt by the French police to arrest him. He was later to die in a suicide bombing in Iraq. When the applicant ’ s family informed him of this, he was delighted to learn that his brother had died a “martyr” in the war against “the infidel”. In the criminal proceedings against the applicant in Italy, the prosecution was convinced of three things: that the cell he belonged to was associated with al-Qaeda : that it was preparing an attack against an unidentified target; and that it was receiving instructions from abroad. 105. The Government next observed that a danger of death or the risk of being exposed to torture or to inhuman and degrading treatment must be corroborated by appropriate evidence. However, in the present case the applicant had neither produced precise information in that regard nor supplied detailed explanations, confining himself to describing an allegedly general situation in Tunisia. The “international sources” cited by the applicant were indeterminate and irrelevant. The same was true of the press articles he had produced, which came from unofficial circles with a particular ideological and political slant. As this information had not been checked, nor had an explanation been requested from the Tunisian government, it had no probative value. The provocations that the applicant ’ s family had allegedly suffered at the hands of the Tunisian police had nothing to do with what the applicant sought to prove before the Court. 106. The Amnesty International report cited three isolated cases, connected to the prevention of terrorism, which did not disclose “anything to be concerned about” (certain persons had been convicted of terrorism or were awaiting trial ). Regarding the allegations of ill-treatment, the report used the conditional tense or expressions such as “it seems”. There was therefore no certainty as to what had happened. The superficial nature of the report was “obvious” in the passages concerning Italy, which described as a human rights violation the deportation to Syria of Muhammad Said Al ‑ Shari, whose application to the Court had been rejected as manifestly ill-founded (see Al-Shari and Others v. Italy ( dec. ), no. 57/03, 5 July 2005 ). 107. The report by the US Department of State cited (a) the case of Moncef Louhici or Ouahichi, in which the investigation into a complaint by the family of a person allegedly killed by the police was still in progress; (b) the case of Bedreddine Rekeii or Reguii, which concerned crimes without a political motivation, and about which the Tunisian authorities had provided complete and reassuring details; (c) the case of the “ Bizerte ” group, in which five of the eleven defendants had been acquitted on appeal and the sentences of the other six had been considerably reduced; and (d) imprecisely identified cases to which vague reference was made or cases involving offences without political motivation or concerning freedom of expression or association. 108. The Government argued that these documents did not portray Tunisia as a kind of “hell”, the term used by the applicant. The situation in the country was, by and large, not very different from that in certain States which had signed the Convention. 109. The misfortunes of Mr Hichem Ben Said Ben Frej, cited by the applicant (see paragraph 9 4 above), were not relevant in the present case, since he had committed suicide. 110. The Government further observed that in numerous cases concerning expulsion to countries ( Algeria in particular) where subjection to ill- treatment as a regular practice seemed much more alarming than in Tunisia, the Court had rejected the applicants ’ allegations. 111. The Government also noted that Tunisia had ratified numerous international instruments for the protection of human rights, including the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, all adopted by the United Nations. Under Article 32 of the Tunisian Constitution, international treaties took precedence over statute law. In addition, Italy and Tunisia had signed bilateral agreements on the question of emigration and combating transnational crime, including terrorism (see paragraph 61 above). That presupposed a common basis of respect for fundamental rights. The effectiveness of the agreements concerned would be jeopardised if the Court were to assert as a principle that Tunisians could not be deported. 112. Tunisia had also signed an association agreement with the European Union. A precondition for implementation of that agreement was respect for fundamental freedoms and democratic principles (see paragraph 62 above). The European Union was an international organisation which, according to the Court ’ s case-law, was presumed to provide a level of protection of fundamental rights “equivalent” to that provided by the Convention. Moreover, the Tunisian authorities permitted the International Committee of the Red Cross and “other international bodies” to visit prisons (see paragraphs 8 0 - 8 1 above). In the Government ’ s submission, it could be presumed that Tunisia would not default on its obligations under international treaties. 113. In Tunisia the terrorist danger was a grim reality, as shown by the explosion on the island of Djerba on 11 April 2002, for which al-Qaeda had claimed responsibility. To meet that danger the Tunisian authorities had, like some European States, enacted a law for the prevention of terrorism. 114. In these circumstances, the “benefit of the doubt” should be given to the State which intended to deport the applicant and whose national interests were threatened by his presence. In that connection, account had to be taken of the scale of the terrorist threat in the world of today and of the objective difficulties of combating it effectively, regard being had not only to the risks in the event of deportation but also to those which would arise in the absence of deportation. In any event, the Italian legal system provided safeguards for the individual – including the possibility of obtaining refugee status – which made expulsion contrary to the requirements of the Convention “practically impossible”. 115. At the hearing before the Court the Government had agreed in substance with the arguments of the third-party intervener (see paragraphs 1 17 -2 3 below), observing that, before the order for the applicant ’ s deportation was made, the applicant had neither mentioned the risk of ill-treatment in Tunisia, although he must have been aware of it, nor requested political asylum. His allegations had accordingly come too late to be credible. 116. Lastly, the Government observed that, even though there was no extradition request or a situation raising concern regarding respect for human rights ( such as, for example, the one described in Chahal v. the United Kingdom, 15 November 1996, Reports of Judgments and Decisions 1996-V), Italy had sought diplomatic assurances from Tunisia (see paragraphs 51 - 52 above). In response, Tunisia had given an undertaking to apply in the present case the relevant Tunisian law (see paragraphs 54 - 55 above), which provided for severe punishment of acts of torture or ill-treatment and extensive visiting rights for a prisoner ’ s lawyer and family. 2. The third-party intervener 117. The United Kingdom Government observed that in Chahal (cited above, § 81) the Court had stated the principle that, in view of the absolute nature of the prohibition of treatment contrary to Article 3 of the Convention, the risk of such treatment could not be weighed against the reasons (including the protection of national security) put forward by the respondent State to justify expulsion. Yet because of its rigidity that principle had caused many difficulties for the Contracting States by preventing them in practice from enforcing expulsion measures. The Government observed in that connection that it was unlikely that any State other than the one of which the applicant was a national would be prepared to receive into its territory a person suspected of terrorist activities. In addition, the possibility of having recourse to criminal sanctions against the suspect did not provide sufficient protection for the community. 118. The individual concerned might not commit any offence (or else, before a terrorist attack, only minor ones) and it could prove difficult to establish his involvement in terrorism beyond a reasonable doubt, since it was frequently impossible to use confidential sources or information supplied by intelligence services. Other measures, such as detention pending expulsion, placing the suspect under surveillance or restricting his freedom of movement, provided only partial protection. 119. Terrorism seriously endangered the right to life, which was the necessary precondition for enjoyment of all other fundamental rights. According to a well-established principle of international law, States could use immigration legislation to protect themselves from external threats to their national security. The Convention did not guarantee the right to political asylum. This was governed by the 1951 Convention relating to the Status of Refugees, which explicitly provided that there was no entitlement to asylum where there was a risk for national security or where the asylum seeker had been responsible for acts contrary to the principles of the United Nations. Moreover, Article 5 § 1 (f) of the Convention authorised the arrest of a person “against whom action is being taken with a view to deportation”, and thus recognised the right of States to deport aliens. 120. It was true that the protection against torture and inhuman or degrading treatment or punishment provided by Article 3 of the Convention was absolute. However, in the event of expulsion, the treatment in question would be inflicted not by the signatory State but by the authorities of another State. The signatory State was then bound by a positive obligation of protection against torture implicitly derived from Article 3. Yet in the field of implied positive obligations, the Court had accepted that the applicant ’ s rights must be weighed against the interests of the community as a whole. 121. In expulsion cases the degree of risk in the receiving country depended on a speculative assessment. The level required to accept the existence of the risk was relatively low and difficult to apply consistently. Moreover, Article 3 of the Convention prohibited not only extremely serious forms of treatment, such as torture, but also conduct covered by the relatively general concept of “degrading treatment”. And the nature of the threat presented by an individual to the signatory State also varied significantly. 122. In the light of the foregoing considerations, the United Kingdom argued that, in cases concerning the threat created by international terrorism, the approach followed by the Court in Chahal (which did not reflect a universally recognised moral imperative and was in contradiction with the intentions of the original signatories of the Convention ) had to be altered and clarified. In the first place, the threat presented by the person to be deported must be a factor to be assessed in relation to the possibility and the nature of the potential ill-treatment. That would make it possible to take into consideration all the particular circumstances of each case and weigh the rights secured to the applicant by Article 3 of the Convention against those secured to all other members of the community by Article 2. Secondly, national-security considerations must influence the standard of proof required from the applicant. In other words, if the respondent State adduced evidence that there was a threat to national security, stronger evidence had to be adduced to prove that the applicant would be at risk of ill-treatment in the receiving country. In particular, the individual concerned must prove that it was “more likely than not” that he would be subjected to treatment prohibited by Article 3. That interpretation was compatible with the wording of Article 3 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which had been based on the case-law of the Court itself, and took account of the fact that in expulsion cases it was necessary to assess a possible future risk. 123. Lastly, the United Kingdom Government emphasised that Contracting States could obtain diplomatic assurances that an applicant would not be subjected to treatment contrary to the Convention. Although, in the above-mentioned Chahal case, the Court had considered it necessary to examine whether such assurances provided sufficient protection, it was probable, as had been shown by the opinions of the majority and the minority of the Court in that case, that identical assurances could be interpreted differently. 3. The Court ’ s assessment (a) General principles ( i ) Responsibility of Contracting States in the event of expulsion 124. It is the Court ’ s settled case-law 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, Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 67, Series A no. 94, and Boujlifa v. France, 21 October 1997, § 42, Reports 1997-VI). In addition, neither the Convention nor its Protocols confer the right to political asylum (see Vilvarajah and Others v. the United Kingdom, 30 October 1991, § 102, Series A no. 215, and Ahmed v. Austria, 17 December 1996, § 38, Reports 1996-VI). 125. However, expulsion by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if deported, faces a real risk of being subjected to treatment contrary to Article 3. In such a case Article 3 implies an obligation not to deport the person in question to that country (see Soering v. the United Kingdom, 7 July 1989, §§ 90-91, Series A no. 161; Vilvarajah and Others, cited above, § 103; Ahmed, cited above, § 39; H.L.R. v. France, 29 April 1997, § 34, Reports 1997 ‑ III; Jabari v. Turkey, no. 40035/98, § 38, ECHR 2000-VIII; and Salah Sheekh v. the Netherlands, no. 1948/04, § 135, 11 January 2007 ). 126. In this type of case the Court is therefore called upon to assess the situation in the receiving country in the light of the requirements of Article 3. Nonetheless, there is no question of adjudicating on or establishing the responsibility of the receiving country, whether under general international law, under the Convention or otherwise. In so far as any liability under the Convention is or may be incurred, it is liability incurred by the Contracting State, by reason of its having taken action which has as a direct consequence the exposure of an individual to the risk of proscribed ill-treatment ( see Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 67, ECHR 2005-I). 127. Article 3, which prohibits in absolute terms torture and inhuman or degrading treatment or punishment, enshrines one of the fundamental values of democratic societies. Unlike most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4, Article 3 makes no provision for exceptions and no derogation from it is permissible under Article 15, even in the event of a public emergency threatening the life of the nation (see Ireland v. the United Kingdom, 1 8 January 1978, § 163, Series A no. 25; Chahal, cited above, § 79; Selmouni v. France [GC], no. 25803/94, § 95, ECHR 1999-V; Al- Adsani v. the United Kingdom [GC], no. 35763/97, § 59, ECHR 2001-XI; and Shamayev and Others v. Georgia and Russia, no. 36378/02, § 335, ECHR 2005- III ). As the prohibition of torture and of inhuman or degrading treatment or punishment is absolute, irrespective of the victim ’ s conduct ( see Chahal, cited above, § 79), the nature of the offence allegedly committed by the applicant is therefore irrelevant for the purposes of Article 3 ( see Indelicato v. Italy, no. 31143/96, § 30, 18 October 2001, and Ramirez Sanchez v. France [GC], no. 59450/00, §§ 115- 16, ECHR 2006 -IX ). ( ii ) Material used to assess the risk of exposure to treatment contrary to Article 3 of the Convention 128. In determining whether substantial grounds have been shown for believing that there is a real risk of treatment incompatible with Article 3, the Court will take as its basis all the material placed before it or, if necessary, material obtained proprio motu ( see H.L.R. v. France, cited above, § 37, and Hilal v. the United Kingdom, no. 45276/99, § 60, ECHR 2001-II). In cases such as the present one, the Court ’ s examination of the existence of a real risk must necessarily be a rigorous one ( see Chahal, cited above, § 96). 129. 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 would be exposed to a real risk of being subjected to treatment contrary to Article 3 ( see N. v. Finland, no. 38885/02, § 167, 26 July 2005). Where such evidence is adduced, it is for the Government to dispel any doubts about it. 130. In order to determine whether there is a risk of ill-treatment, the Court must examine the foreseeable consequences of sending the applicant to the receiving country, bearing in mind the general situation there and his personal circumstances ( see Vilvarajah and Others, cited above, § 108 in fine ). 131. To that end, as regards the general situation in a particular country, the Court has often attached importance to the information contained in recent reports from independent international human rights protection associations such as Amnesty International, or governmental sources, including the US Department of State ( see, for example, Chahal, cited above, §§ 99-100; Müslim v. Turkey, no. 53566/99, § 67, 26 April 2005; Said v. the Netherlands, no. 2345/02, § 54, ECHR 2005 -VI; and Al- Moayad v. Germany ( dec. ), no. 35865/03, §§ 65-66, 20 February 2007). At the same time, it has held that the mere possibility of ill-treatment on account of an unsettled situation in the receiving country does not in itself give rise to a breach of Article 3 ( see Vilvarajah and Others, cited above, § 111, and Fatgan Katani and Others v. Germany ( dec. ), no. 67679/01, 31 May 2001) and that, where the sources available to it describe a general situation, an applicant ’ s specific allegations in a particular case require corroboration by other evidence ( see Mamatkulov and Askarov, cited above, § 73, and Müslim, cited above, § 68). 132. In cases where an applicant alleges that he or she is a member of a group systematically exposed to a practice of ill-treatment, the Court considers that the protection of Article 3 of the Convention enters into play when the applicant establishes, where necessary on the basis of the sources mentioned in the previous paragraph, that there are serious reasons to believe in the existence of the practice in question and his or her membership of the group concerned (see, mutatis mutandis, Salah Sheekh, cited above, §§ 138-49). 133. With regard to the material date, the existence of the risk must be assessed primarily with reference to those facts which were known or ought to have been known to the Contracting State at the time of expulsion. However, if the applicant has not yet been extradited or deported when the Court examines the case, the relevant time will be that of the proceedings before the Court ( see Chahal, cited above, §§ 85 - 86, and Venkadajalasarma v. the Netherlands, no. 58510/00, § 63, 17 February 2004 ). This situation typically arises when, as in the present case, deportation or extradition is delayed as a result of an indication by the Court of an interim measure under Rule 39 of the Rules of Court ( see Mamatkulov and Askarov, cited above, § 69). Accordingly, while it is true that historical facts are of interest in so far as they shed light on the current situation and the way it is likely to develop, the present circumstances are decisive. ( iii ) The concepts of “torture” and “ inhuman or degrading treatment” 134. According to the Court ’ s settled case-law, ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum 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 sex, age and state of health of the victim ( see, among other authorities, Price v. the United Kingdom, no. 33394/96, § 24, ECHR 2001- VII; Mouisel v. France, no. 67263/01, § 37, ECHR 2002-IX; and Jalloh v. Germany [GC], no. 54810/00, § 67, ECHR 2006-IX ). 135. 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 ( see Labita v. Italy [GC], no. 26772/95, § 120, ECHR 2000-IV ). 136. In order to determine whether any particular form of ill-treatment should be qualified as torture, regard must be had to the distinction drawn in Article 3 between this notion and that of inhuman or degrading treatment. This distinction would appear to have been embodied in the Convention to allow the special stigma of “torture” to attach only to deliberate inhuman treatment causing very serious and cruel suffering (see Aydın v. Turkey, 25 September 1997, § 82, Reports 1997-VI, and Selmouni, cited above, § 96). ( b) Application of the above principles to the present case 137. The Court notes first of all that States face immense difficulties in modern times in protecting their communities from terrorist violence (see Chahal, cited above, § 79, and Shamayev and Others, cited above, § 335). It cannot therefore underestimate the scale of the danger of terrorism today and the threat it presents to the community. That must not, however, call into question the absolute nature of Article 3. 138. Accordingly, the Court cannot accept the argument of the United Kingdom Government, supported by the Government, that a distinction must be drawn under Article 3 between treatment inflicted directly by a signatory State and treatment that might be inflicted by the authorities of another State, and that protection against this latter form of ill-treatment should be weighed against the interests of the community as a whole (see paragraphs 12 0 and 12 2 above). Since protection against the treatment prohibited by Article 3 is absolute, that provision imposes an obligation not to extradite or expel any person who, in the receiving country, would run the real risk of being subjected to such treatment. As the Court has repeatedly held, there can be no derogation from that rule (see the case-law cited in paragraph 1 27 above). It must therefore reaffirm the principle stated in Chahal (cited above, § 81) that it is not possible to weigh the risk of ill-treatment against the reasons put forward for the expulsion in order to determine whether the responsibility of a State is engaged under Article 3, even where such treatment is inflicted by another State. In that connection, the conduct of the person concerned, however undesirable or dangerous, cannot be taken into account, with the consequence that the protection afforded by Article 3 is broader than that provided for in Articles 32 and 33 of the 1951 United Nations Convention relating to the Status of Refugees (see Chahal, cited above, § 80, and paragraph 6 3 above ). Moreover, that conclusion is in line with points IV and XII of the guidelines of the Committee of Ministers of the Council of Europe on human rights and the fight against terrorism (see paragraph 6 4 above). 139. The Court considers that the argument based on the balancing of the risk of harm if the person is sent back against the dangerousness he or she represents to the community if not sent back is misconceived. The concepts of “risk” and “dangerousness” in this context do not lend themselves to a balancing test because they are notions that can only be assessed independently of each other. Either the evidence adduced before the Court reveals that there is a substantial risk if the person is sent back or it does not. The prospect that he may pose a serious threat to the community if not returned does not reduce in any way the degree of risk of ill - treatment that the person may be subject to on return. For that reason it would be incorrect to require a higher standard of proof, as submitted by the intervener, where the person is considered to represent a serious danger to the community, since assessment of the level of risk is independent of such a test. 140. With regard to the second branch of the United Kingdom Government ’ s arguments, to the effect that where an applicant presents a threat to national security stronger evidence must be adduced to prove that there is a risk of ill-treatment ( see paragraph 12 2 above ), the Court observes that such an approach is not compatible with the absolute nature of the protection afforded by Article 3 either. It amounts to asserting that, in the absence of evidence meeting a higher standard, protection of national security justifies accepting more readily a risk of ill-treatment for the individual. The Court therefore sees no reason to modify the relevant standard of proof, as suggested by the third-party intervener, by requiring in cases like the present one that it be proved that subjection to ill-treatment is “more likely than not”. On the contrary, it reaffirms that 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 ( see paragraphs 12 5 and 13 2 above and the case-law cited in those paragraphs ). 141. The Court further observes that similar arguments to those put forward by the third-party intervener in the present case have already been rejected in the Chahal judgment cited above. Even if, as the Italian and United Kingdom Governments asserted, the terrorist threat has increased since that time, that circumstance would not call into question the conclusions of the Chahal judgment concerning the consequences of the absolute nature of Article 3. 142. Furthermore, the Court has frequently indicated that it applies rigorous criteria and exercises close scrutiny when assessing the existence of a real risk of ill-treatment (see Jabari, cited above, § 39) in the event of a person being removed from the territory of the respondent State by extradition, expulsion or any other measure pursuing that aim. Although assessment of that risk is to some degree speculative, the Court has always been very cautious, examining carefully the material placed before it in the light of the requisite standard of proof (see paragraphs 1 28 and 13 2 above) before indicating an interim measure under Rule 39 or finding that the enforcement of removal from the territory would be contrary to Article 3 of the Convention. As a result, since adopting the Chahal judgment it has only rarely reached such a conclusion. 143. In the present case the Court has had regard, firstly, to the reports of Amnesty International and Human Rights Watch on Tunisia ( see paragraphs 6 5 - 79 above ), which describe a disturbing situation. The conclusions of those reports are corroborated by the report of the US Department of State (see paragraphs 8 2 -9 3 above). In particular, these reports mention numerous and regular cases of torture and ill-treatment meted out to persons accused under the 2003 Prevention of Terrorism Act. The practices reported – said to be often inflicted on persons in police custody with the aim of extorting confessions – include hanging from the ceiling, threats of rape, administration of electric shocks, immersion of the head in water, beatings and cigarette burns, all of these being practices which undoubtedly reach the level of severity required by Article 3. It is reported that allegations of torture and ill-treatment are not investigated by the competent Tunisian authorities, that they refuse to follow up complaints and that they regularly use confessions obtained under duress to secure convictions ( see paragraphs 68, 7 1, 7 3 -7 5, 8 4 and 8 6 above ). Bearing in mind the authority and reputation of the authors of these reports, the seriousness of the investigations by means of which they were compiled, the fact that on the points in question their conclusions are consistent with each other and that those conclusions are corroborated in substance by numerous other sources ( see paragraph 9 4 above ), the Court does not doubt their reliability. Moreover, the Government have not adduced any evidence or reports capable of rebutting the assertions made in the sources cited by the applicant. 144. The applicant was prosecuted in Italy for participation in international terrorism and the deportation order against him was issued by virtue of Legislative Decree no. 144 of 27 July 2005 entitled “urgent measures to combat international terrorism” ( see paragraph 32 above ). He was also sentenced in Tunisia, in his absence, to twenty years ’ imprisonment for membership of a terrorist organisation operating abroad in time of peace and for incitement to terrorism. The existence of that sentence was confirmed by Amnesty International ’ s statement of 19 June 2007 ( see paragraph 7 1 above ). 145. The Court further notes that the parties do not agree on the question whether the applicant ’ s trial in Tunisia could be reopened. The applicant asserted that it was not possible for him to appeal against his conviction with suspensive effect, and that, even if he could, the Tunisian authorities could imprison him as a precautionary measure ( see paragraph 15 4 below ). 146. In these circumstances, the Court considers that in the present case substantial grounds have been shown for believing that there is a real risk that the applicant would be subjected to treatment contrary to Article 3 of the Convention if he were to be deported to Tunisia. That risk cannot be excluded on the basis of other material available to the Court. In particular, although it is true that the International Committee of the Red Cross has been able to visit Tunisian prisons, that humanitarian organisation is required to maintain confidentiality about its fieldwork ( see paragraph 8 0 above ) and, in spite of an undertaking given in April 2005, similar visiting rights have been refused to the independent human rights protection organisation Human Rights Watch ( see paragraphs 7 6 and 9 0 above ). Moreover, some of the acts of torture reported allegedly took place while the victims were in police custody or pre-trial detention on the premises of the Ministry of the Interior ( see paragraphs 8 6 and 9 4 above ). Consequently, the visits by the International Committee of the Red Cross cannot exclude the risk of subjection to treatment contrary to Article 3 in the present case. 147. The Court further notes that on 29 May 2007, while the present application was pending before it, the Italian government asked the Tunisian government, through the Italian embassy in Tunis, for diplomatic assurances that the applicant would not be subjected to treatment contrary to Article 3 of the Convention ( see paragraphs 51 - 52 above ). However, the Tunisian authorities did not provide such assurances. At first they merely stated that they were prepared to accept the transfer to Tunisia of Tunisians detained abroad (see paragraph 54 above). It was only in a second note verbale, dated 10 July 2007 (that is, the day before the Grand Chamber hearing), that the Tunisian Ministry of Foreign Affairs observed that Tunisian laws guaranteed prisoners ’ rights and that Tunisia had acceded to “the relevant international treaties and conventions ” ( see paragraph 55 above ). In that connection, the Court observes that the existence of domestic laws and accession to international treaties guaranteeing respect for fundamental rights in principle are not in themselves sufficient to ensure adequate protection against the risk of ill-treatment where, as in the present case, reliable sources have reported practices resorted to or tolerated by the authorities which are manifestly contrary to the principles of the Convention. 148. Furthermore, it should be pointed out that even if, as they did not do in the present case, the Tunisian authorities had given the diplomatic assurances requested by Italy, that would not have absolved the Court from the obligation to examine whether such assurances provided, in their practical application, a sufficient guarantee that the applicant would be protected against the risk of treatment prohibited by the Convention (see Chahal, cited above, § 105). The weight to be given to assurances from the receiving State depends, in each case, on the circumstances prevailing at the material time. 149. Consequently, the decision to deport the applicant to Tunisia would breach Article 3 of the Convention if it were enforced. II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 150. The applicant alleged that the criminal proceedings against him in Tunisia had not been fair and that his expulsion would expose him to the risk of a flagrant denial of justice. He relied on Article 6 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 ... ... 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; (e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.” 151. The Government rejected that argument. A. Admissibility 152. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions (a) The applicant 153. The applicant submitted that there was a serious risk of a denial of justice in Tunisia, where the minimal safeguards provided by international law were disregarded. All Tunisians accused in Italy of terrorist activities had had unfair trials after being repatriated. The applicant cited as typical in that respect the case of Mr Loubiri Habib, who had been acquitted of terrorism charges by the Italian courts but imprisoned in Tunisia and deprived of the possibility of seeing his family. Mr Loubiri had succeeded in obtaining “revision” of the Tunisian criminal proceedings which had resulted in his conviction, but the revision proceedings in the Military High Court in Tunis had resulted in a substantial increase in his sentence, from ten to thirty years ’ imprisonment. 154. The applicant further observed that the operative part of the judgment pronouncing his conviction in absentia had been served on his father, Mr Mohamed Cherif, on 2 July 2005. As a result, an appeal was no longer possible. In any event, even supposing that an appeal was possible and that such an appeal could stay execution of the sentence, that would not prevent the Tunisian authorities from imprisoning him as a precautionary measure. Moreover, in view of the serious infringements of political prisoners ’ civil rights in Tunisia, even the theoretical possibility of an appeal out of time could not exclude the risk of a flagrant denial of justice. In addition, it could not be known with certainty whether the court having jurisdiction to hear such an appeal would be a civilian or a military court of appeal. 155. Lastly, the applicant noted that the trial had been conducted in Tunisia in a military court and that the defendant in such proceedings had no possibility of adducing evidence, appointing a lawyer or addressing the court. Moreover, in the present case, neither his family nor his lawyers had been able to obtain a copy of the military court ’ s judgment ( see paragraph 30 above ). (b) The Government 156. The Government asserted that because the file did not contain the original or a certified copy of the judgment against the applicant given in Tunisia it was impossible to check whether the information he had supplied was correct. They further submitted that an expulsion could engage the responsibility of the Contracting State under Article 6 only in exceptional circumstances, in particular where it was apparent that any conviction in the receiving country would amount to a “flagrant” denial of justice, which was not the position in the present case. On the other hand, a Contracting State was not required to establish whether proceedings conducted outside its territory satisfied each of the conditions laid down in Article 6. To rule otherwise would run counter to the current trend, encouraged by the Court itself, of strengthening international mutual assistance in the judicial field. 157. Under the relevant provisions of Tunisian law, a person convicted in his absence was entitled to have the proceedings reopened. The right to a reopening of the proceedings could be exercised in good time and in accordance with the requirements of Article 6. In particular, a person convicted in his absence who was living abroad could appeal within thirty days of the judgment in absentia being served. Where such service had not been effected, an appeal was always admissible and would stay execution of the sentence. Furthermore, the possibility of appealing against a conviction in absentia in Tunisia was confirmed by the declarations of the Director of International Cooperation at the Tunisian Ministry of Justice, which were reassuring on the point ( see paragraph 40 above ). In addition, the applicant had not adduced any evidence that in the light of the relevant rules of Tunisian law there had been shown to be substantial grounds for believing that his trial had been conducted in conditions contrary to the principles of fair trial. 158. Admittedly, in the States party to the Convention, trial before a military court might raise an issue under Article 6. However, in the case of an expulsion, an applicant had to prove that the denial of justice he feared would be “ flagrant ”. Such proof had not been produced in the present case. In addition, in December 2003 Tunisia had amended its domestic provisions relating to terrorist crimes committed by civilians, with the result that military judges had been replaced by civilian judges and an investigating judge took part in the investigation. 159. Lastly, the Government argued that the case of Mr Loubiri, cited by the applicant, was not relevant as an increase of the sentence on appeal was something that could occur even in those countries which were most scrupulously compliant with the Convention. 2. The Court ’ s assessment 160. The Court recalls its finding that the deportation of the applicant to Tunisia would constitute a violation of Article 3 of the Convention (see paragraph 1 49 above). Having no reason to doubt that the Government will comply with the present judgment, it considers that it is not necessary to decide the hypothetical question whether, in the event of expulsion to Tunisia, there would also be a violation of Article 6 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 161. The applicant alleged that his expulsion to Tunisia would deprive his partner and his son of his presence and assistance. 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.” 162. The Government rejected that argument. A. Admissibility 163. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions (a) The applicant 164. The applicant observed that he had a family life in Italy which would be disrupted by enforcement of his expulsion : he had been living with Mrs V. since 1998 and their child had been born the following year. At that time he had already requested a residence permit, which was not issued until 2001. When that permit expired he had tried unsuccessfully to regularise his situation in order to find work. The applicant ’ s child attended school in Italy, which would not be possible in Tunisia, where the applicant himself was at risk of imprisonment or even death. Mrs V. had been out of work for about a year as she suffered from a serious form of ischaemia, which frequently made it necessary for her to be taken into hospital and also prevented her from travelling to Tunisia. The applicant was therefore the family ’ s sole means of financial support. 165. Any allegation concerning the applicant ’ s dangerousness to society had been refuted by his acquittal at first instance on the charge of international terrorism. As matters stood, this was the only judicial decision given in the proceedings against him, since the appeal proceedings were still pending. No new evidence had been adduced by the Government. 166. Moreover, the authorities had many other means to keep an eye on the applicant, expulsion being a measure to be adopted only in extreme cases. In that connection, the applicant pointed out that, since 3 November 2006, he had to report three times a week to a police station in Milan and that he had been forbidden to leave Italian territory ( see paragraph 43 above ). He had always complied with these obligations and had thus been able to obtain the return of his driving licence, which had been withdrawn from him – illegally in his submission – by the vehicle licensing authority ( motorizzazione civile ). ( b) The Government 167. The Government submitted that account had to be taken of the following facts: (a) the applicant ’ s family unit had been created at a time when his presence in Italy was unlawful, as he had had a son by an Italian woman in 1999, whereas the residence permit granted to him for family reasons had not been issued until 29 December 2001; ( b) the child had not attended school for very long in Italy and had had no significant exposure to Italian culture ( he was currently in the second year of primary school), so that he would be able to continue to attend school in Tunisia; ( c) the applicant had never lived with Mrs V. and his son : they had lived in Arluno, until 7 October 2002, when they moved to Milan; the applicant had never lived in Arluno, had often travelled abroad, had been arrested on 9 October 2002 and had married another woman in a Muslim ceremony ( see paragraph 57 above ); and ( d) the unit of family life could be preserved outside Italian territory, given that neither the applicant nor Mrs V. were in work in Italy. 168. The interference in the applicant ’ s family life had a legal basis in domestic law, namely Law no. 155 of 2005. In addition, account had to be taken of the negative influence which, because of his personality and the scale of the terrorist danger, the applicant represented for national security, and of the particular importance which should be attached to the prevention of serious crime and disorder. Any interference with the applicant ’ s right to respect for his family life therefore pursued a legitimate aim and was necessary in a democratic society. 169. In addition, no disproportionate or excessive burden had been imposed on the applicant ’ s family unit. In the context of crime - prevention policy, the legislature had to enjoy broad latitude to rule both on the existence of a problem of public interest and on the choice of arrangements for the application of an individual measure. Organised crime of a terrorist nature had reached, in Italy and in Europe, very alarming proportions, to the extent that the rule of law was under threat. Administrative measures ( such as deportation ) were indispensable for effective action against the phenomenon. Deportation presupposed the existence of “sufficient evidence” that the person under suspicion was supporting or assisting a terrorist organisation. The Minister of the Interior could not rely on mere suspicions but had to establish the facts and assess them objectively. All the material in the file suggested that that assessment, in the present case, had been correct and not arbitrary. The evidence used in the administrative deportation proceedings was the evidence taken in the course of public and adversarial proceedings in the Milan Assize Court. During those criminal proceedings the applicant had had the opportunity, through his lawyer, of raising objections and submitting the evidence he considered necessary to safeguard his interests. 2. The Court ’ s assessment 170. The Court observes its finding that the deportation of the applicant to Tunisia would constitute a violation of Article 3 of the Convention (see paragraph 1 49 above). Having no reason to doubt that the Government will comply with the present judgment, it considers that it is not necessary to decide the hypothetical question whether, in the event of expulsion to Tunisia, there would also be a violation of Article 8 of the Convention. IV. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 7 171. The applicant submitted that his expulsion would be neither “necessary in the interests of public order” nor “grounded on reasons of national security”. He alleged a violation of Article 1 of Protocol No. 7, which provides : “1. An alien lawfully resident in the territory of a State shall not be expelled therefrom except in pursuance of a decision reached in accordance with law and shall be allowed: (a) to submit reasons against his expulsion, (b) to have his case reviewed, and (c) to be represented for these purposes before the competent authority or a person or persons designated by that authority. 2. An alien may be expelled before the exercise of his rights under paragraph 1 (a), (b) and (c) of this Article, when such expulsion is necessary in the interests of public order or is grounded on reasons of national security.” 172. The Government rejected that argument. A. Admissibility 173. 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. Arguments of the parties (a) The applicant 174. The applicant submitted that he was lawfully resident in Italian territory. He argued that the condition of “lawful residence” should be assessed by reference to the situation at the time of the deportation decision. When arrested he had a valid residence permit, which expired only because he was in prison. He had subsequently attempted to regularise his situation, but had been prevented from doing so on account of his internment in the temporary holding centre. 175. The applicant ’ s situation could now be regularised, since the terrorism charges had not led to his conviction, he was cohabiting with his Italian partner and son, and was able to work. However, any administrative step he might take was blocked by the fact that he had no document which could prove his nationality and could never obtain one from the Tunisian authorities ( see paragraph 45 above ). 176. The applicant submitted that he was being prevented from exercising the rights listed in paragraph 1 ( a), ( b) and ( c) of Article 1 of Protocol No. 7, whereas his expulsion could not be regarded as “ necessary in the interests of public order” or “grounded on reasons of national security”. In that connection, he observed that the considerations of the Minister of the Interior were contradicted by the Milan Assize Court, which had acquitted him of international terrorism. In any event, the Government had not adduced any evidence of the existence of dangers to national security or public order, so that the decision to take him to a temporary holding centre with a view to his expulsion had been “unlawful”. (b) The Government 177. The Government observed that, according to the explanatory report accompanying Article 1 of Protocol No. 7, the word “lawfully” referred to the domestic legislation of the State concerned. It was therefore domestic legislation which should determine the conditions a person had to satisfy in order for his or her presence within the national territory to be considered “lawful”. In particular, an alien whose admission and stay had been made subject to certain conditions, for example a fixed period, and who no longer complied with those conditions could not be regarded as being still “lawfully” present in the State ’ s territory. Yet after 11 October 2002, a date which preceded the deportation order, the applicant no longer had a valid residence permit authorising his presence in Italy. He was therefore not “an alien lawfully resident in the territory” within the meaning of Article 1 of Protocol No. 7, which was accordingly not applicable. 178. The Government further observed that the deportation order had been issued in accordance with the rules established by the relevant legislation, which required a simple administrative decision. The law in question was accessible, its effects were foreseeable and it offered a degree of protection against arbitrary interference by the public authorities. The applicant had also had the benefit of “minimum procedural safeguards”. He had been represented before the justice of the peace and the Regional Administrative Court by his lawyer, who had been able to submit reasons why he should not be deported. A deportation order had also been issued against the applicant when he was sentenced to four years and six months ’ imprisonment, and hence after adversarial judicial proceedings attended by all the safeguards required by the Convention. 179. In any event, the Government submitted that the applicant ’ s deportation was necessary in the interests of national security and the prevention of disorder. They argued that these requirements were justified in the light of the information produced in open court during the criminal proceedings against the applicant and pointed out that the standard of proof required for the adoption of an administrative measure (a deportation order issued by the Minister of the Interior by virtue of Legislative Decree no. 144 of 2005) was lower than that required to ground a criminal conviction. In the absence of manifestly arbitrary conclusions, the Court should endorse the national authorities ’ reconstruction of the facts. 2. The Court ’ s assessment 180. The Court recalls its finding that the deportation of the applicant to Tunisia would constitute a violation of Article 3 of the Convention (see paragraph 1 49 above). Having no reason to doubt that the Government will comply with the present judgment, it considers that it is not necessary to decide the hypothetical question whether, in the event of expulsion to Tunisia, there would also be a violation of Article 1 of Protocol No. 7. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 181. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 182. The applicant requested in the first place 20,000 euros (EUR) for loss of income. He observed that the deportation order had caused him to fall into an irregular situation, that he had been detained unlawfully in the Milan temporary holding centre for three months and that this had prevented him from carrying on his occupation. 183. In respect of non-pecuniary damage, the applicant claimed EUR 50,000 and suspension and/or annulment of the deportation order. 184. The Government observed that the deportation had not been enforced, so that the applicant, an alien who had contravened the laws of the Italian State and been lawfully detained after 9 October 2002, was not entitled to claim any pecuniary damage or loss of income. 185. On the question of non-pecuniary damage, the Government submitted that there was no causal link between the conduct of the Italian authorities and the sufferings and inconvenience alleged by the applicant. In any event, the applicant had not indicated what criteria had been used for the calculation of the sum claimed. 186. The Court reiterates that it is able to make awards by way of the just satisfaction provided for in Article 41 where the loss or damage on which a claim is based has been caused by the violation found, but that the State is not required to make good damage not attributable to it (see Perote Pellon v. Spain, no. 45238/99, § 57, 25 July 2002). 187. In the present case, the Court has found that enforcement of the applicant ’ s deportation to Tunisia would breach Article 3 of the Convention. On the other hand, it has not found any violations of the Convention on account of the deprivation of the applicant ’ s liberty or the fact that his presence in Italy was unlawful. Consequently, it can see no causal link between the violation found in the present judgment and the pecuniary damage alleged by the applicant. 188. With regard to the non-pecuniary damage sustained by the applicant, the Court considers that the finding that his deportation, if carried out, would breach Article 3 of the Convention constitutes sufficient just satisfaction. B. Costs and expenses 189. The applicant did not request reimbursement of the costs and expenses incurred during the domestic proceedings. He did, however, request reimbursement of his costs relating to the proceedings before the Court, which, according to a bill from his lawyer, amounted to EUR 18,179.57. 190. The Government considered that amount excessive. 191. According to the Court ’ s established case-law, an award can be made in respect of costs and expenses incurred by the applicant only in so far as they have been actually and necessarily incurred and are reasonable as to quantum (see Belziuk v. Poland, 25 March 1998, § 49, Reports 1998-II). 192. The Court considers the amount claimed for the costs and expenses relating to the proceedings before it excessive and decides to award EUR 8,000 under that head. C. Default interest 193. 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 observed that it could not underestimate the danger of terrorism and noted that States were facing considerable difficulties in protecting their communities from terrorist violence. However, that should not call into question the absolute nature of Article 3 (prohibition of torture and inhuman or degrading treatment) of the Convention. In the present case, there were substantial grounds for believing that there was a real risk that the applicant would be subjected to treatment contrary to Article 3 if he were to be deported to Tunisia. The Court further noted that the Tunisian authorities had not provided the diplomatic assurances requested by the Italian Government. Lastly, even if the Tunisian authorities had given the diplomatic assurances, that would not have absolved the Court from the obligation to examine whether such assurances provided a sufficient guarantee that the applicant would be protected against the risk of treatment. Consequently, the Court found that the decision to deport the applicant to Tunisia would breach Article 3 if it were enforced. |
638 | Journalists and publishing companies | THE LAW I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 10. The applicant complained that his conviction represented an infringement of his right to freedom of expression as provided in Article 10 of the Convention, which reads as follows: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” 11. The Government contested that argument. A. Admissibility 12. The Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 13. The Government did not dispute that there had been an interference with the applicant’s right to freedom of expression. They argued however in essence that the impugned expression was so offensive that the applicant’s prosecution had corresponded to a pressing social need. In any event, his case had finished with only a reprimand; consequently, the interference could not be considered disproportionate. 14. The applicant submitted that he did not dispute that the interference was lawful and pursued a legitimate aim. He argued nevertheless that his conviction was not necessary in a democratic society, given that he was a journalist, the impugned statement was a value judgment concerning a matter of public interest, and the case concerned the reputation of a State-owned corporation. 15. The Court notes that it has not been disputed by the Government that there has been an interference with the applicant’s right to freedom of expression. It reiterates that an interference with the applicant’s rights under Article 10 § 1 will infringe the Convention if it does not meet the requirements of paragraph 2 of Article 10. It should therefore be determined whether it was “prescribed by law”, whether it pursued one or more of the legitimate aims set out in that paragraph and whether it was “necessary in a democratic society” in order to achieve those aims. 16. The Court observes that the lawfulness of the measure complained of was based on section 180(1)b of the Criminal Code. It is therefore satisfied that it was “prescribed by law”, and this has not been disputed by the parties. Moreover, it accepts that the interference pursued a legitimate aim, namely the protection of the reputation or rights of others, which again has not been in dispute between the parties. It remains to be determined whether the interference was “necessary in a democratic society”. 17. The test of “necessity in a democratic society” requires the Court to determine whether the interference complained of corresponded to a “pressing social need”. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a “restriction” is reconcilable with freedom of expression as protected by Article 10 (see, among many other authorities, Perna v. Italy [GC], no. 48898/99, § 39, ECHR 2003-V; Association Ekin v. France, no. 39288/98, § 56, ECHR 2001-VIII). There is little scope under Article 10 § 2 of the Convention for restrictions on political speech or on debate on questions of public interest (see Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 61, ECHR 1999-IV). Although freedom of expression may be subject to exceptions, they must be narrowly interpreted and the necessity for any restrictions must be convincingly established (see Observer and Guardian v. the United Kingdom, 26 November 1991, § 59, Series A no. 216). 18. The Court’s task in exercising its supervisory function is not to take the place of the competent domestic courts but rather to review under Article 10 the decisions they have taken pursuant to their margin of appreciation (see Fressoz and Roire v. France [GC], no. 29183/95, § 45, ECHR 1999-I). This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully or in good faith; the Court looks at the interference complained of in the light of the case as a whole, including the content of the statement held against the applicant and its context (see News Verlags GmbH & CoKG v. Austria, no. 31457/96, § 52, ECHR 2000-I). 19. In particular, the Court must determine whether the reasons adduced by the national authorities to justify the interference were “relevant and sufficient”, and whether the measure taken was “proportionate to the legitimate aims pursued” (see Chauvy and Others v. France, no. 64915/01, § 70, ECHR 2004-VI). 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 Zana v. Turkey, 25 November 1997, § 51, Reports of Judgments and Decisions 1997-VII). Article 10 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 Oberschlick v. Austria (no. 1), 23 May 1991, § 57, Series A no. 204). 20. The Court would add that offence may fall outside the protection of freedom of expression if it amounts to wanton denigration, for example where the sole intent of the offensive statement is to insult (see, e.g. Skałka v. Poland, no. 43425/98, § 34, 27 May 2003); but the use of vulgar phrases in itself is not decisive in the assessment of an offensive expression as it may well serve merely stylistic purposes. For the Court, style constitutes part of the communication as the form of expression and is as such protected together with the content of the expression. 21. The Court furthermore stresses the essential role which the press plays in a democratic society. Although it must not overstep certain bounds, in particular in respect of the reputation and rights of others, its duty is nevertheless to impart – in a manner consistent with its obligations and responsibilities – information and ideas on all matters of public interest (see, among many other authorities, Scharsach and News Verlagsgesellschaft v. Austria, no. 39394/98, § 30, ECHR 2003-XI). Journalistic freedom also covers possible recourse to a degree of exaggeration, or even provocation ( loc. cit. ). 22. In the present case, the Court observes that the impugned criminal charges were pressed by a company which undisputedly has a right to defend itself against defamatory allegations. In this context the Court accepts that, in addition to the public interest in open debate about business practices, there is a competing interest in protecting the commercial success and viability of companies, for the benefit of shareholders and employees, but also for the wider economic good. The State therefore enjoys a margin of appreciation as to the means it provides under domestic law to enable a company to challenge the truth, and limit the damage, of allegations which risk harming its reputation (see Steel and Morris v. the United Kingdom, no. 68416/01, § 94, ECHR 2005-II; Kuliś and Różycki v. Poland, no. 27209/03, § 35, ECHR 2009 ‑ ...). However, there is a difference between the commercial reputational interests of a company and the reputation of an individual concerning his or her social status. Whereas the latter might have repercussions on one’s dignity, for the Court interests of commercial reputation are devoid of that moral dimension. In the instant application, the reputational interest at stake is that of a State-owned corporation; it is thus a commercial one without relevance to moral character. 23. The Court notes that the expression used by the applicant is offensive. Nevertheless, the subject matter of the case is not a defamatory statement of fact but a value judgment or opinion, as was admitted by the domestic courts. The publication in question constituted a satirical denouncement of the company within the context of governmental economic policies and consumer attitudes (see paragraph 6 above). Taking the above facts into account, the Court finds that the applicant’s primary aim was to raise awareness about the disadvantages of State ownership rather than to denigrate the quality of the products of the company in the minds of the readers. The opinion was expressed with reference to government policies concerning the protection of national values and the role of private enterprise and foreign investment. It dealt therefore with a matter of public interest. 24. The Court considers that the domestic courts failed to have regard to the fact that the press had a duty to impart information and ideas on matters of public interest and in so doing to have possible recourse to a degree of exaggeration or even provocation, or in other words to make somewhat immoderate statements (see Mamère v. France, no. 12697/03, § 25, ECHR 2006–XIII, and Dąbrowski v. Poland, no. 18235/02, § 35, 19 December 2006). For the Court, the wording employed by the applicant was exaggerated but made in a public context; the expression used is, regrettably, a commonly used one in regard of low-quality wine and its vulgarity thus constituted a forceful part of the form of expression. 25. The Court finds that the above considerations are important in assessing the proportionality of criminal-law based interference with Article 10 of the Convention, but were not examined by the domestic courts. It finds that, in the absence of considering the above factors which are preponderant in the present case, the domestic authorities could not establish that the restriction was proportionate. 26. In view that of the fact that the necessity for the interference has not been not convincingly established by the domestic authorities, the Court cannot but conclude that there has been a violation of Article 10 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 27. 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 28. The applicant made no damages claim. B. Costs and expenses 29. The applicant claimed 3,580 euros (EUR) for the costs and expenses incurred before the Court. This amount corresponds to 35 hours of legal work billable by his lawyer as per the time-sheet submitted at an hourly rate of EUR 100 and additionally to EUR 80 of clerical costs. 30. The Government did not comment on this claim. 31. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the full sum claimed, i.e. EUR 3,580. C. Default interest 32. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 10 (freedom of expression) of the Convention, finding that the necessity for interfering with the applicant’s freedom of expression had not been convincingly justified. It noted in particular that there was a difference between damaging an individual’s reputation concerning his or her social status, with the repercussions that that could have on his or her dignity, and a company’s commercial reputation, which had no moral dimension. In addition, the article had expressed a value judgment or opinion whose primary aim was to raise awareness about the disadvantages of State ownership rather than to denigrate the quality of the company’s products. Lastly, raising as it did the question of government policies on the protection of national values and the role of private enterprise and foreign investment, it concerned a matter of public interest in respect of which the press had a duty to impart information and ideas, even if exaggerated or provocative. Since the domestic courts had failed to have regard to these considerations, Hungary could not establish that the restriction had been proportionate. |
544 | Violent acts by private individuals | II. RELEVANT DOMESTIC LAW Criminal Code 46. The relevant parts of the Criminal Code ( Kazneni zakon, Official Gazette no. 110/1997) provide : Article 8 “(1) Criminal proceedings in respect of criminal offences shall be instituted by the State Attorney ’ s Office in the interest of the Republic of Croatia and its citizens. (2) In exceptional circumstances the law may provide for criminal proceedings in respect of certain criminal offences to be instituted on the basis of a private prosecution or for the State Attorney ’ s Office to institute criminal proceedings following [a private] application.” BODILY INJURY Article 98 “ Anyone who inflicts bodily injury on another or impairs another ’ s health shall be fined or sentenced to imprisonment for a term not exceeding one year.” Article 102 “Criminal proceedings for the offence of inflicting bodily injury (Article 98) shall be instituted by means of a private prosecution.” TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT Article 176 “A public official, or another person acting at the instigation or with the explicit or tacit acquiescence of a public official, who inflicts on another person pain or grave suffering, whether physical or mental, for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, shall be sentenced to imprisonment for a term of one to eight years.” Code of Criminal Procedure 47. The relevant provisions of the Code of Criminal Procedure ( Zakon o kaznenom postupku, Official Gazette nos. 110/1997, 27/1998, 58/1999, 112/1999, 58/2002 and 62/2003) provide: Article 2 “(1) Criminal proceedings shall be instituted and conducted at the request of a qualified prosecutor only. ... (2) In respect of criminal offences subject to public prosecution the qualified prosecutor shall be the State Attorney and in respect of criminal offences to be prosecuted privately the qualified prosecutor shall be a private prosecutor. (3) Unless otherwise provided by law, the State Attorney shall undertake a criminal prosecution where there is a reasonable suspicion that an identified person has committed a criminal offence subject to public prosecution and where there are no legal impediments to the prosecution of that person. (4) Where the State Attorney finds that there are no grounds to institute or conduct criminal proceedings, the injured party as a subsidiary prosecutor may take his place under the conditions prescribed by this Act.” Articles 47 to 61 regulate the rights and duties of private prosecutors and of injured parties acting as subsidiary prosecutors. The Criminal Code distinguishes between these two roles. A private prosecutor ( privatni tužitelj ) is an injured party who brings a private prosecution in respect of criminal offences for which such prosecution is expressly prescribed by the Criminal Code (these are offences of a lesser degree). The injured party as a subsidiary prosecutor ( oštećeni kao tužitelj ) takes over criminal proceedings in respect of criminal offences subject to public prosecution where the relevant prosecuting authorities, for whatever reason, have decided not to prosecute. Pursuant to Article 47, where the prosecution is brought privately, the charge must be lodged with the relevant authority within three months after the qualified prosecutor has learnt of the offence and the identity of the perpetrator. Article 48 “(1) A request to prosecute shall be lodged with the competent State Attorney ’ s Office and a private prosecution with the competent court. (2) Where the injured party has lodged a criminal complaint ... he or she shall be considered to have thereby lodged a request to prosecute. (3) Where the injured party has lodged a criminal complaint or a request to prosecute but the [competent authorities] establish that the criminal offence in question should be prosecuted on the basis of a private prosecution, the criminal complaint or the request to prosecute shall be treated as a timely private prosecution if it has been submitted within the time-limit prescribed for [bringing] a private prosecution ... ” Pursuant to Article 55(1), the State Attorney is under a duty to inform the injured party within eight days of a decision not to prosecute and of that party ’ s right to take over the proceedings, as well as to instruct that party on the steps to be taken. Juvenile Courts Act 48. The relevant provisions of the Juvenile Courts Act ( Zakon o sudovima za mladež, Official Gazette nos. 111/1997, 27/1998 and 12/2002) read as follows: Section 2 “A minor is a person who, at the time of the offence, was at least fourteen but not older than eighteen. A young adult is a person who, at the time of the offence, was at least eighteen but not older than twenty-one.” Section 4 “(1) Sanctions in respect of minors who have committed criminal offences are educative measures, imprisonment of a minor and security measures. ... ” Section 6 “(1) Educative measures are: ... (2) special obligations ... ” Section 9 “(1) A court may order a minor to fulfil one or more special obligations where it finds that appropriate orders or injunctions are needed to influence the minor and his or her conduct. (2) A court may impose the following obligations: ... 7. to participate in the activities of humanitarian organisations or activities of communal or ecological interest. ... (7) In connection with the obligation under paragraph 2, point 7 of this section a court may impose a maximum of one hundred and twenty working hours within a period of six months, so as not to hinder the minor ’ s education or regular employment; (8) A competent Social Welfare Centre shall supervise the enforcement of the obligation ... ” Section 45 “(1) Criminal proceedings against minors shall be instituted at the request of the State Attorney in respect of all criminal offences. (2) Prosecution [of minors] in respect of criminal offences generally subject to private prosecution may be instituted if a person authorised [to initiate a private prosecution] has lodged an application for proceedings to be instituted with the competent State Attorney ’ s Office within three months of learning of the offence and the identity of the perpetrator.” Section 46 “In criminal proceedings against a minor [the] victim cannot take the role of prosecutor.” Section 62 “(1) Where the State Attorney has decided under section 45 of this Act that there is no ground to request that criminal proceedings be instituted against a minor (Article 174 of the Code of Criminal Procedure), he or she shall notify the victim of this and state the reasons for his or her decision ... (2) Within eight days after notification [under paragraph 1] has been served on the victim, he or she may request a competent juvenile council of a higher court to decide whether proceedings should be instituted. The division shall decide after it has obtained the opinion of the State Attorney. The division may decide that the proceedings should not be instituted at all or that they should be instituted before a juvenile judge. (3) Where the division has decided that proceedings should be instituted, the competent State Attorney ’ s Office shall take over the proceedings against a minor.” Section 63 “(1) In respect of criminal offences which carry a sentence of imprisonment not exceeding five years or a fine, the State Attorney may decide not to request that criminal proceedings be instituted, despite the existence of a reasonable suspicion that a minor has committed such an offence, where the State Attorney considers that the proceedings against the minor would not fulfil any purpose in view of the nature of the offence and the circumstances under which it was committed, as well as the previous life and personality of the minor in question. In order to establish these facts, the State Attorney may request information from the [minor ’ s] parents ... other persons and institutions ... or interview the minor in question ... (2) The State Attorney shall inform the competent Social Welfare Centre and the victim about his or her decision under paragraph 1 of this section and shall inform the latter of his or her right to bring any compensatory claim he or she might have in civil proceedings ... ” Section 65 “ (1) The State Attorney may make his or her decision not to institute proceedings (section 63) subject to the minor ’ s willingness to: ... (b) participate in the activities of humanitarian organisations or activities of communal or ecological interest (within the limits of section 9(2).22). ... ” Section 68 “(1) A request that preparatory proceedings be instituted shall be lodged with a competent juvenile judge by the State Attorney. (2) Where the juvenile judge agrees with the request she or he shall issue a decision that preparatory proceedings are to be instituted. ... ” Rules on the State Attorney ’ s Offices 49. The relevant part of the Rules on the State Attorney ’ s Offices ( Pravilnik o unutarnjem poslovanju u državnim odvjetništvima, Official Gazette no. 106/02) reads: Section 49 “A victim, a party represented by a State Attorney ’ s Office ... or an interested person, other than a suspect, an accused or an opposing party in the proceedings, may consult a criminal, civil or other case file held by the State Attorney. Such persons may also be allowed to copy the case file in whole or in part. Permission to consult or copy the case file shall be given by the State Attorney or the official in charge of a particular case file.” THE LAW I. ALLEGED VIOLATION OF ARTICLES 3 AND 13 OF THE CONVENTION 50. The applicant complained that the domestic authorities had not afforded him adequate protection against a serious act of violence and that he had had no effective remedy in respect thereof. The applicant relied on Article 3 of the Convention, taken alone and together with Article 13 of the Convention. The relevant Articles provide: Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Article 13 “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” 51. The Government contested that argument. A. Admissibility 52. The Government requested the Court to declare this part of the application inadmissible for failure to exhaust domestic remedies. Relying on the Court ’ s decision in the case of Duchonova v. the Czech Republic ( (dec. ), no. 29858/03, 2 October 2006), they submitted that the applicant ’ s civil action for damages in respect of the injuries and fears he had suffered was still pending. 53. The applicant argued that he had exhausted all remedies and that the only remedy capable of providing adequate redress for the ill-treatment sustained in violation of Article 3 of the Convention was of a criminal-law nature. 54. The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use first the remedies that are normally 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, in practice as well as in theory, failing which they will lack the requisite accessibility and effectiveness. However, Article 35 § 1 does not require that recourse should be had to remedies which are inadequate or ineffective (see Aksoy v. Turkey, 18 December 1996, §§ 51-52, Reports of Judgments and Decisions 1996-VI, and Barta v. Hungary, no. 26137/04, § 45, 10 April 2007 ). 55. As to the Government ’ s reference to the case of Duchonova, the Court notes that the criminal offences complained of by the applicant in that case were those of defamation and blackmail and that the application in that case concerned Article 8 of the Convention. Therefore, the case of Duchonova is not comparable to the present case, which concerns physical violence against the applicant. 56. The Court notes further that the applicant did indeed bring a civil action for damages against his assailants which is still pending. However, the Court is inclined to believe that effective deterrence against grave acts such as attacks on the physical integrity of a person, where fundamental values and essential aspects of private life are at stake, requires efficient criminal-law provisions (see, mutatis mutandis, X and Y v. the Netherlands, 26 March 1985, § 27, Series A no. 91; August v. the United Kingdom (dec.), no. 36505/02, 21 January 2003; and M.C. v. Bulgaria, no. 39272/98, § 1 50, ECHR 2003 ‑ XII ). 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 1998-VIII). In this connection the Court reiterates that an obligation for the State to apply adequate criminal-law mechanisms cannot be considered in principle to be limited solely to cases of ill-treatment by State agents (see M.C., cited above, § 151, and Šečić v. Croatia, no. 40116/02, § 53, 31 May 2007). 57. The Court finds that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further finds that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions (a) The applicant 58. The applicant argued that in view of the severity of the attack against him and the injuries he had sustained, Article 3 was applicable to the present case. As to the compliance of the State with its positive obligations under Article 3 of the Convention, the applicant argued that real and effective protection from the act of ill-treatment required effective investigation and prosecution. In this connection he stressed that the State ’ s positive obligation could not be limited to merely conducting an investigation. An investigation did not serve any purpose on its own, nor, alone, did it provide any protection against and redress for ill-treatment where it was not accompanied by effective follow - up. He maintained that the State authorities had failed to conduct an effective investigation into his case and that they had also failed to apply the relevant criminal-law mechanisms in an adequate manner. The investigating authorities had failed to act effectively and numerous mistakes and delays had occurred, causing the prosecution to become time-barred. In the applicant ’ s view, the time-barring itself amounted to a violation of Article 3 of the Convention. Although the assailants had admitted in their interviews with the police that they had hit the applicant, the State Attorney ’ s Office had brought a criminal prosecution against only one of them, B.B. 59. He also contended that he had not been allowed to take an active part in the proceedings because he had never been informed of the steps taken in the pre-trial proceedings, including the decision of 26 May 2003. The authorities had also failed to inform him of the medical report drawn up during the investigation stage. Thus, he had had no opportunity to challenge the medical reports. 60. In the applicant ’ s view the fact that the assailants had been charged on an individual basis rather than with participation in a group attack was in itself a violation of the State ’ s positive obligations under Article 3 of the Convention. He also referred to the erroneous instructions from the State Attorney ’ s Office in respect of the prosecution of B.B. He further argued that S.T. and D.E. had also been minors at the time of the offence and that therefore they too should have been prosecuted by the competent State Attorney ’ s Office, irrespective of the gravity of the applicant ’ s injuries. 61. The applicant also alleged that, contrary to Article 13, he had had no effective remedy in practice for his complaint under Article 3. He stressed that only a criminal-law remedy, that is, an official investigation, would have been appropriate in the circumstances of the present case. (b) The Government 62. The Government argued that Article 3 was not applicable to the present case since the applicant had suffered only bodily injuries of a lesser nature. Should the Court nonetheless find Article 3 applicable, the Government maintained that the procedural obligation under Article 3 of the Convention did not require a judgment convicting the perpetrators of a crime. Therefore, the Court ’ s assessment should be limited to the effectiveness of the investigation. In that connection the Government stressed that there had been an investigation into the applicant ’ s allegations of an attack against him and that the State Attorney ’ s Office and the police had established all the relevant facts. They had heard evidence from the applicant, the alleged assailants and two independent witnesses. These authorities had not found any indication that the attack on the applicant had been racially motivated. Since the alleged perpetrators had been either minors or young adults, special provisions were to be applied. The Government admitted that the criminal proceedings had been terminated owing to expiry of the statutory limitation period, but argued that that in itself could not amount to a violation of Article 3 of the Convention. 63. As regards the complaint under Article 13, the Government argued firstly that since Article 3 was not applicable, there could be no violation of Article 13. Furthermore, the applicant could have lodged a civil claim for damages and had been informed of the results of the investigation. 2. The Court ’ s assessment (a) Severity of the treatment 64. 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). 65. 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 ). 66. The Court notes that the applicant alleged that seven individuals had confronted him. They had attacked him by kicking him and hitting him all over his body. One of them had hit him in the head with a wooden plank, after which he had lost consciousness. The medical documentation shows that the applicant sustained numerous blows which caused contusions and lacerations on his head and body. The Court considers that acts of violence such as those alleged by the applicant in principle fall within the scope of Article 3 of the Convention. In this connection it stresses that the Convention is a living instrument which must be interpreted in the light of present-day conditions and that the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies (see, mutatis mutandis, Selmouni v. France, [GC], no. 25803/94, § 101, ECHR 1999-V, and Mayeka and Mitunga v. Belgium, no. 13178/03, § 48, ECHR 2006 ‑ XI ). Furthermore, Article 3 of the Convention also requires the authorities to investigate allegations of ill-treatment when they are “arguable” and “raise a reasonable suspicion”, even if such treatment is administered by private individuals (see, Ay v. Turkey, no. 30951/96, §§ 59-60, 22 March 2005, and Mehmet Ümit Erdem v. Turkey, no. 42234/02, § 26, 17 July 2008). 67. The Court has had special regard to the distinctive circumstances surrounding the attack on the applicant. It attaches particular importance to the fact that the applicant was physically attacked by seven individuals, in the evening and in an isolated place where any calls for help would appear to have been futile. Furthermore, the attack was premeditated, since the findings of the national authorities, including the statements made by the assailants, reveal that they had planned to find and attack the applicant in retaliation for his previous attack against three of them. The act of violence in question was an assault on the applicant ’ s physical integrity. Such behaviour must have caused the applicant anxiety and fear to a significant degree, and was obviously aimed at intimidating and injuring him. 68. In addition, the injuries sustained by the applicant cannot be said to have been of a merely trivial nature. In conclusion, having regard to the circumstances of the present case, the Court considers that the applicant ’ s allegations of ill-treatment were “arguable” and capable of “raising a reasonable suspicion” so as to attract the applicability of Article 3 of the Convention. It remains to be determined whether the authorities ’ response to the situation in respect of which the applicant sought their assistance was in line with their positive obligations flowing from Article 3 in conjunction with Article 1 of the Convention. (b) Compliance with the State ’ s positive obligations 69. Once the Court has found that the level of severity of violence inflicted by private individuals attracts protection under Article 3 of the Convention, its case-law is consistent and clear to the effect that this Article requires the implementation of adequate criminal-law mechanisms (see A. v. the United Kingdom; M.C.; and Šečić, all cited above). However, the scope of the State ’ s positive obligations might differ between cases where treatment contrary to Article 3 of the Convention has been inflicted through the involvement of State agents and cases where violence is inflicted by private individuals. The Court observes in the first place that no direct responsibility can attach to Croatia under the Convention for the acts of the private individuals in question. 70. The Court observes, however, that even in the absence of any direct responsibility for the acts of a private individual under Article 3 of the Convention, State responsibility may nevertheless be engaged through the obligation imposed by Article 1 of the Convention. In this connection the Court reiterates that the obligation on the High Contracting Parties under Article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment or punishment, including such ill-treatment administered by private individuals (see A. v. the United Kingdom, cited above, § 22). 71. Furthermore, Article 3 requires States to put in place effective criminal-law provisions to deter the commission of offences against personal integrity, backed up by law-enforcement machinery for the prevention, suppression and punishment of breaches of such provisions (see, mutatis mutandis, A. v. the United Kingdom, cited above, § 22, and Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 96, ECHR 2005-VII), and this requirement also extends to ill-treatment administered by private individuals (see Šečić, cited above, § 53). On the other hand, it goes without saying that the obligation on the State under Article 1 of the Convention cannot be interpreted as requiring the State to guarantee through its legal system that inhuman or degrading treatment is never inflicted by one individual on another or that, if it is, criminal proceedings should necessarily lead to a particular sanction. In order that a State may be held responsible it must in the view of the Court be shown that the domestic legal system, and in particular the criminal law applicable in the circumstances of the case, fails to provide practical and effective protection of the rights guaranteed by Article 3 (see X and Y, cited above, § 30, and A. v. the United Kingdom, cited above, opinion of the Commission, § 48). 72. As to the criminal-law mechanisms provided in the Croatian legal system in connection with the State ’ s obligations under Article 3 of the Convention, the Court notes at the outset that the only criminal offence that expressly prohibits torture or other cruel, inhuman and degrading treatment relates solely to the acts of a State official or another person acting with the acquiescence of such an official, whereas violent acts committed by private individuals are prohibited in a number of separate provisions of the Criminal Code. The Court observes further that Croatian criminal law distinguishes between criminal offences to be prosecuted by the State Attorney ’ s Office, either of its own motion or on a private application, and criminal offences to be prosecuted by means of a private prosecution. The latter category concerns criminal offences of a lesser nature. 73. The Court further observes that the Croatian legal system also allows the injured party to act as a subsidiary prosecutor. In respect of criminal offences for which the prosecution is to be undertaken by the State Attorney ’ s Office, either of its own motion or on a private application, where the Office declines to prosecute on whatever ground, the injured party may take over the prosecution as a subsidiary prosecutor. In contrast, a private prosecution is undertaken from the beginning by a private prosecutor. However, the prosecution of minors must always be undertaken by the State. 74. The Court will now examine whether or not the impugned regulations and practices, and in particular the domestic authorities ’ compliance with the relevant procedural rules, as well as the manner in which the criminal-law mechanisms were implemented in the instant case, were defective to the point of constituting a violation of the respondent State ’ s positive obligations under Article 3 of the Convention. 75. In respect of the duty to investigate, the minimum standards applicable, as defined by the Court ’ s case-law, include the requirements that the investigation be independent, impartial and subject to public scrutiny, and that the competent authorities act with diligence and promptness (see, for example, Çelik and İmret v. Turkey, no. 44093/98, § 55, 26 October 2004). In addition, for an investigation to be considered effective, the authorities must take whatever reasonable steps they can 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 (see, in particular, Batı and Others v. Turkey (nos. 33097/96 and 57834/00, § 134, ECHR 2004-IV (extracts)). 76. As regards the steps taken by the national authorities, the Court notes that the police promptly conducted interviews with all of the assailants, the applicant and two neutral witnesses. They also obtained a medical report on the applicant ’ s injuries and filed a criminal complaint against the assailants with the competent State Attorney ’ s Office. However, the further steps taken by the prosecuting authorities and the courts cannot be seen as satisfying the requirement of effectiveness of the criminal - law mechanisms for the purposes of Article 3 of the Convention. 77. The Court ’ s case-law shows that the requirements of Article 3 of the Convention may go beyond the stage of the investigation. So far the Court has addressed this issue in situations where the alleged ill-treatment was perpetrated by State officials. The relevant principles were stated as follows in its judgment in Ali and Ayşe Duran v. Turkey (no. 42942/02, 8 April 2008): “61. The requirements of Articles 2 and 3 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 and the prohibition of ill-treatment. While there is no absolute obligation for all prosecutions to result in conviction or in a particular sentence, the national courts should not under any circumstances be prepared to allow life-endangering offences and grave attacks on physical and moral integrity to go unpunished (see Öneryıldız, cited above, §§ 95 and 96; Salman v. Turkey [GC], no. 21986/93, § 104-109, ECHR 2000-VII; and Okkalı, cited above, § 65). 62. The important point for the Court to review, therefore, is 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 Articles 2 and 3 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 and the prohibition of ill-treatment are not undermined (see Okkalı, cited above, § 66).” 78. It must be stated at this juncture that it is not the Court ’ s task to verify whether the domestic courts correctly applied domestic criminal law; what is in issue in the present proceedings is not individual criminal-law liability, but the State ’ s responsibility under the Convention. The Court must grant substantial deference to the national courts in the choice of appropriate measures, while also maintaining a certain power of review and the power to intervene in cases of manifest disproportion between the gravity of the act and the results obtained at domestic level (see, mutatis mutandis, Nikolova and Velichkova v. Bulgaria, no. 7888/03, § 62, 20 December 2007, and Atalay v. Turkey, no. 1249/03, § 40, 18 September 2008). 79. In this connection the Court notes that the obligation on the State to bring to justice perpetrators of acts contrary to Article 3 of the Convention serves mainly to ensure that acts of ill-treatment do not remain ignored by the relevant authorities and to provide effective protection against acts of ill-treatment. 80. The Court notes that in the present case, the State authorities filed an indictment only against B.B., although the interviews conducted during the investigation clearly showed that the other six assailants were also actively involved in the attack on the applicant. In this connection and as regards the applicant ’ s arguments that his Convention rights could be secured only if the assailants were prosecuted by the State and that the Convention requires State-assisted prosecution, the Court firstly reiterates that its role is not to replace the national authorities and choose in their stead from among the wide range of possible measures that could suffice to secure adequate protection of the applicant from acts of violence. Within the limits of the Convention, the choice of the means to secure compliance with Article 3 in the sphere of the relations of individuals between themselves is in principle a matter that falls within the domestic authorities ’ margin of appreciation, provided that criminal-law mechanisms are available to the victim. However, the Court also notes that under the relevant domestic laws the prosecution of minors must always be undertaken by the State. In the present case only the criminal proceedings against B.B., in his capacity as a minor, were undertaken by the competent State Attorney ’ s Office. In this connection the Court notes that four other assailants, namely S.C., I.Š., F.P. and S.T. were also minors at the time of the attack on the applicant. However, the State Attorney ’ s Office failed to undertake a prosecution against them. 81. As regards the proceedings instituted by the State authorities, the Court notes that on 4 July 2000 the Zagreb Police Department lodged a criminal complaint against B.B. with the Zagreb State Attorney ’ s Juvenile Office. However, initially no further steps were taken by that Office. 82. On 12 June 2000 the applicant lodged a criminal complaint with the Zagreb State Attorney ’ s Office against six identified assailants, including B.B., and a seventh unknown individual. The Office remained inactive for eight months, until 12 March 2001, when it forwarded the complaint to the Velika Gorica State Attorney ’ s Office. The latter, however, decided not to institute criminal proceedings against B.B. on the ground that the injury he had allegedly inflicted on the applicant was only of a lesser nature and thus subject to private prosecution. This decision was in contravention of section 45 of the Juvenile Courts Act, which provides that criminal proceedings against minors are to be instituted at the request of the State Attorney in respect of all criminal offences. This error was eventually rectified only when the applicant brought a private prosecution against B.B. in the Juvenile Division of the Velika Gorica Municipal Court. Thus, the criminal proceedings against B.B. were properly instituted by the Zagreb County Court Juvenile Council only on 4 February 2002, almost two years after the incident, although the interviews conducted at the investigation stage had ended on 8 June 2000. 83. Even when the criminal proceedings against B.B. were eventually instituted before the competent court, the first hearing was scheduled only for 2 November 2002, only to be adjourned because counsel for the defendant failed to appear. Another significant period of inactivity occurred between 26 May 2003 and 12 February 2004, and two months later, on 23 April 2004, the prosecution for the offence with which B.B. had been charged became time-barred, although a decision to that effect was adopted only on 21 December 2005. 84. As to the criminal proceedings concerning the remaining six assailants, the Court notes that the applicant lodged a criminal complaint against them with the Velika Gorica State Attorney ’ s Office on 12 June 2000. However, this Office declared the complaint inadmissible only on 30 September 2002, again on the ground that a prosecution in respect of the criminal offence of inflicting bodily harm had to be brought privately by the victim. As stated above, this conclusion was contrary to section 45 of the Juvenile Courts Act in respect of four assailants, S.C., I.Š., F.P. and S.T., who were also minors at the time of the incident at issue. This error was actually never rectified and in the end it was the applicant who lodged a private subsidiary indictment against the five suspects (all the assailants but B.B. and the one unidentified assailant) with the Velika Gorica Municipal Court, on 11 November 2002. During these proceedings reports were prepared by the competent Social Welfare Centre, but no hearing was held prior to 23 April 2004, when the prosecution became time - barred. The first hearing was held after that date, on 28 October 2005, and on 11 May 2006 the proceedings were discontinued. 85. Thus, the facts of the case were never established by a competent court of law. In this connection the Court notes that the main purpose of imposing criminal sanctions is to restrain and deter the offender from causing further harm. However, these aims can hardly be obtained without having the facts of the case established by a competent criminal court. While the Court is satisfied that criminal sanctions against minors may in certain circumstances be replaced by such measures as community service, it cannot accept that the purpose of effective protection against acts of ill-treatment is achieved in any manner where the criminal proceedings are discontinued owing to the fact that the prosecution has become time-barred and where this occurred, as is shown above, as a result of the inactivity of the relevant State authorities. 86. In the Court ’ s view, the outcome of the criminal proceedings in the present case cannot be said to have had a sufficient deterrent effect on the individuals concerned, or to have been capable of ensuring the effective prevention of unlawful acts such as those complained of by the applicant. In conclusion, the Court considers that the above elements demonstrate that, in the particular circumstances of this case, the relevant State authorities did not fulfil their positive obligations under Article 3 of the Convention. 87. In the Court ’ s view, the impugned practices, in the circumstances of the present case, did not provide adequate protection to the applicant against an act of serious violence and, together with the manner in which the criminal-law mechanisms were implemented in the instant case, were defective to the point of constituting a violation of the respondent State ’ s procedural obligations under Article 3 of the Convention. 88. Having regard to the above the Court finds that there is no separate issue to be examined under Article 13 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 14 TAKEN IN CONJUNCTION WITH ARTICLE 3 OF THE CONVENTION 89. The applicant also complained that both his ill-treatment and the subsequent proceedings conducted by the authorities showed that he had been discriminated against on account of his ethnic origin. He relied on Article 14 of the Convention, taken in conjunction with Article 3 of the Convention. Article 14 reads as follows: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” A. The parties ’ submissions 90. The applicant maintained that the attack on him and the lack of action by the authorities had resulted from the fact that he was of Roma origin. He relied on the Nachova case and on the principle that a complaint of racist violence should be accorded utmost priority, as racist violence was particularly destructive of fundamental rights. In this respect the applicant pointed to the broader situation of the Roma population in Croatia as well as the recently published report of the European Commission against Racism and Intolerance (Third Report on Croatia, CRI (2005) 24, 14 June 2005). 91. The Government considered the applicant ’ s Article 14 complaint wholly unsubstantiated. They maintained that nothing in the conduct of the domestic authorities had indicated a difference in the treatment of the applicant on the basis of his Roma origin or a tendency to cover up events or encourage an attack to his detriment. The course of events had no connection with the ethnic origin of the applicant, but was the result of objective problems experienced by the prosecuting authorities during the proceedings. 92. In this connection the Government enumerated several cases in which the police had been successful in identifying and prosecuting persons who had committed crimes against individuals of Roma origin. They claimed that no systemic problems were encountered by the Roma population in Croatia other than their difficulties of integration into society, which were common also to other States signatory to the Convention. B. The Court ’ s assessment 93. The Court reiterates that when investigating violent incidents, State authorities have the additional duty to take all reasonable steps to unmask any racist motive and to establish whether or not ethnic hatred or prejudice may have played a role in the events. Admittedly, proving racial motivation will often be extremely difficult in practice. The respondent State ’ s obligation to investigate possible racist overtones to a violent act is an obligation to use best endeavours and is not absolute; the authorities must do what is reasonable in the circumstances of the case (see Nachova and Others, cited above, § 160 ). 94. The Court considers the foregoing to be necessarily true also in cases where the treatment contrary to Article 3 of the Convention is inflicted by private individuals. Treating racially induced violence and brutality on an equal footing with cases that have no racist overtones would be to turn a blind eye to the specific nature of acts that are particularly destructive of fundamental rights. A failure to make a distinction in the way in which situations that are essentially different are handled may constitute unjustified treatment irreconcilable with Article 14 of the Convention (see Nachova and Others, cited above, with further references). 95. In the present case, the Court observes that the police interviewed all the alleged assailants and well as the applicant in order to establish the relevant facts surrounding the attack on the applicant. Their statements revealed that the applicant and the assailants had belonged to the same group of friends until 8 December 1999, when the applicant and two other individuals had physically attacked three minors, D.E., S.C. and I.Š., and had also damaged a car owned by the mother of D.E. A few months later, the victims of that attack and their four friends decided to confront and attack the applicant. In the Court ’ s view these circumstances show that the attack on the applicant was rather an act of revenge for his previous attack, and provide no indication that the attack on the applicant was racially motivated. 96. As to the applicant ’ s contention that one of his assailant, I.Š., had referred to the applicant ’ s Roma origin in his interview with the police, the Court notes that while it is true that I.Š. did so, there is nothing in his statement to indicate that the applicant ’ s Roma origin had played any role in the attack on him. In this connection the Court notes that I.Š. gave no indication that the assailants had attacked the applicant on account of his ethnic origin. The Court also notes that none of the other assailants mentioned the applicant ’ s origin in any way. 97. Lastly, the Court notes that neither in his interview with the police conducted soon after the attack, on 8 June 2000, nor in his evidence given before the Velika Gorica Municipal Court on 13 January 2003 did the applicant himself indicate that any of his assailants had made reference to his Roma origin. The facts of the case reveal that the applicant and his assailants had actually belonged to the same circle of friends, and there is no indication that the applicant ’ s race or ethnic origin played a role in any of the incidents. 98. In conclusion, the Court considers that there is no evidence that the attack on the applicant was racially motivated. Therefore, in the circumstances of the present case there has been no violation of Article14 of the Convention read in conjunction with Article 3 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 99. 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 100. The applicant claimed 10,000 euros (EUR) in respect of non-pecuniary damage. 101. The Government argued that the applicant had submitted the same claim in the civil proceedings pending against his assailants and that his claim for non-pecuniary damage should therefore be rejected. In any event, they deemed the claim excessive. 102. Having regard to all the circumstances of the present case, the Court accepts that the applicant has suffered non-pecuniary damage which cannot be compensated solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards the applicant EUR 1 ,000 in respect of non-pecuniary damage, plus any tax that may be chargeable to him. B. Costs and expenses 103. The applicant also claimed EUR 12,975 for the costs and expenses incurred before the domestic courts and before the Court and attached detailed documentation in support of his claim. This included the costs of the lawyer representing the applicant in the domestic proceedings (EUR 1,250), counsel ’ s fees and secretarial expenses. The hourly rates charged by the lawyers were as follows: EUR 70 in respect of the European Roma Rights Centre staff lawyer and EUR 80 in respect of Mrs Kušan. 104. The Government opposed the reimbursement of the applicant ’ s costs and expenses in the domestic proceedings. Furthermore, they argued that he had not submitted any proof of payment of any costs. 105. 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. As to the criminal proceedings instituted by the applicant against his assailants before the national authorities, the Court agrees that, as they were essentially aimed at remedying the violation of the Convention alleged before the Court, these domestic legal costs may be taken into account in assessing the claim for costs (see Scordino v. Italy (no. 1) [GC], no. 36813/97, § 284, ECHR 2006-...). In the present case, regard being had to the information in its possession and the above criteria, the Court awards the applicant a sum of EUR 1,250 for costs and expenses in the proceedings before the national authorities. As to the Convention proceedings, making its assessment on an equitable basis and in the light of its practice in comparable cases, the Court considers it reasonable to award the applicant, who was legally represented, the sum of EUR 5,000, plus any tax that may be chargeable to the applicant on these amounts. C. Default interest 106. 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 3 (prohibition of inhuman or degrading treatment) of the Convention, finding that the Croatian authorities’ practices had not protected adequately the applicant from an act of serious violence and, together with the manner in which the criminal-law mechanisms had been implemented in the present case, had been defective. The Court further held that there had been no violation of Article 14 (prohibition of discrimination) of the Convention in conjunction with Article 3, on account of the lack of evidence that the attack on the applicant had been racially motivated. The facts of the case had revealed that the applicant and his assailants had actually belonged to the same circle of friends, and there had been no indication that the applicant’s race or ethnic origin had played a role in any of the incidents. |
728 | Exposure to environmental hazards | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Civil actions by servicemen against the Crown 1. Prior to 1947 73. It was a well-established and unqualified common- law rule that the Crown was neither directly nor vicariously liable in tort. 74. The rule was counterbalanced in several ways. Actions against the errant serviceman would be permitted in which case the Crown would invariably (if the defendant was acting in the course of his duty) accept responsibility for any damages awarded. In cases where the individual author of the injury could not be identified, a nominee defendant would be appointed to enable the claim to proceed. In addition, from 1919 a serviceman injured in the course of war service was entitled to a disability pension and his spouse to a pension. The scope of these entitlements later widened to include disability or death caused by injury attributable to any service in the armed forces (war service or not). A feature of these successive schemes was that entitlement to a pension did not depend on proof of fault against the Crown. 75. Further to strong criticism of the Crown's position as litigant, in the 1920s legislation was envisaged that would make the Crown liable in tort. The 1924 terms of reference of the drafting committee were to prepare a bill to provide, inter alia, that the Crown should become liable to be sued in tort. Clause 11 of the draft bill produced in 1927 (and never adopted) provided, under the heading “Substantive Rights”, that : “Subject to the provisions of this Act, the Crown shall, notwithstanding any rule of law to the contrary, be liable in tort. ” This provision was made subject to clause 29(1 ) ( g) which read: “Except as therein otherwise expressly provided, nothing in this Act shall– ... (g) entitle any member of the armed forces of the Crown to make a claim against the Crown in respect of any matter relating to or arising out of or in connection with the discipline or duties of those forces or the regulations relating thereto, or the performance or enforcement or purported performance or enforcement thereof by any member of those forces, or other matters connected with or ancillary to any of the matters aforesaid ... ” 2. The Crown Proceedings Act 1947 (“the 1947 Act”) 76. The 1947 Act made far-reaching changes, both substantive and procedural, to the Crown's liability to be sued. 77. The 1947 Act was divided into four parts: Part I “Substantive law” (sections 1-12 of the Act); Part II “Jurisdiction and procedure”; Part III “Judgments and execution”; and Part IV “ Miscellaneous”. 78. Section 1 provides for the Crown to be sued as of right rather than by a petition of right sanctioned by Royal fiat. 79. Section 2 of the 1947 Act provides: “ Liability of the Crown in tort (1) Subject to the provisions of this Act, the Crown shall be subject to all those liabilities in tort to which, if it were a private person of full age and capacity, it would be subject :– (a) in respect of torts committed by its servants or agents; (b) in respect of any breach of those duties which a person owes to his servants or agents at common law by reason of being their employer; and (c) in respect of any breach of the duties attaching at common law to the ownership, occupation, possession or control of property: Provided that no proceedings shall lie against the Crown by virtue of paragraph (a) of this subsection in respect of any act or omission of a servant or agent of the Crown unless the act or omission would, apart from the provisions of this Act, have given rise to a cause of action in tort against that servant or agent or his estate.” 80. Members of the armed forces were to be treated differently. If they died or were injured in the course of their duties, the Crown could not be sued in tort once the Secretary of State certified that the death or injury would be treated as attributable to service for the purposes of entitlement to a war pension. In particular, section 10 of the 1947 Act was entitled “Provisions relating to the armed forces” and provided as follows: “(1) Nothing done or omitted to be done by a member of the armed forces of the Crown while on duty as such shall subject either him or the Crown to liability in tort for causing the death of another person, or for causing personal injury to another person, in so far as the death or personal injury is due to anything suffered by that other person while he is a member of the armed forces of the Crown if – (a) at the time when that thing is suffered by that other person, he is either on duty as a member of the armed forces of the Crown or is, though not on duty as such, on any land, premises, ship, aircraft or vehicle for the time being used for the purposes of the armed forces of the Crown; and (b) the [Secretary of State] certifies that his suffering that thing has been or will be treated as attributable to service for the purposes of entitlement to an award under the Royal Warrant, Order in Council or Order of His Majesty relating to the disablement or death of members of the force of which he is a member: Provided that this subsection shall not exempt a member of the said forces from liability in tort in any case in which the court is satisfied that the act or omission was not connected with the execution of his duties as a member of those forces. (2) No proceedings in tort shall lie against the Crown for death or personal injury due to anything suffered by a member of the armed forces of the Crown if – (a) that thing is suffered by him in consequence of the nature or condition of any such land, premises, ship, aircraft or vehicle as aforesaid, or in consequence of the nature or condition of any equipment or supplies used for the purposes of those forces; and (b) the [ Secretary of State] certifies as mentioned in the preceding subsection; nor shall any act or omission of an officer of the Crown subject him to liability in tort for death or personal injury, in so far as the death or personal injury is due to anything suffered by a member of the armed forces of the Crown being a thing as to which the conditions aforesaid are satisfied. (3) ... a Secretary of State, if satisfied that it is the fact : – (a) that a person was or was not on any particular occasion on duty as a member of the armed forces of the Crown; or (b) that at any particular time any land, premises, ship, aircraft, vehicle, equipment or supplies was or was not, or were or were not, used for the purposes of the said forces; may issue a certificate certifying that to be the fact; and any such certificate shall, for the purpose of this section, be conclusive as to the fact which it certifies.” The words in section 2 of the 1947 Act “subject to the provisions of this Act” rendered section 2 subject to the provisions of section 10 of the 1947 Act. 3. The Crown Proceedings (Armed Forces) Act 1987 (“the 1987 Act”) 81. The exception contained in section 10 of the 1947 Act was removed by the 1987 Act. This removal was not retrospective. Accordingly, after 1987 claims in tort by members of the armed forces (or their estates) who had died or been injured as a result of conduct that took place prior to 1987 could not proceed if the Secretary of State issued the relevant certificate. The reasons the law was prospective only were explained by the member of parliament introducing the bill as follows (Hansard, HC, 13 February 1987, col. 572): “Successive Governments have resisted retrospective legislation as a basic concept, especially where such legislation imposes a retrospective liability on others. Secondly, it would be clearly wrong to impose retrospective liability on a serviceman for past actions, even if the Crown, his employer, were to stand behind him. That would involve individuals who are alleged to be guilty of negligence over the years being brought to book in a court of law for actions [for] which, at the time they were committed, they were not liable under the law. That is a strong argument against retrospective legislation. Thirdly, ... where should the line be drawn in dealing with past claims so as to be fair and just towards all claimants? How could there be a logical cut-off point for considering claims either by the [MOD] or the courts. How could those whose claims which fell on the wrong side of the arbitrary line be satisfied? How could the [MOD], and ultimately the courts, be expected to assess old cases where the necessary documentary evidence or witnesses are no longer available? Those are practical questions to which, sadly, there are no ready answers. For that reason, I believe that the only reasonable course of action is to legislate for the repeal of section 10 from the date of enactment.” 4. The Limitation Act 1980 82. Section 11 of this Act provides that any action for damages for personal injury must be brought within three years of the cause of action arising. B. The case of Matthews v. Ministry of Defence 83. Mr Matthews served in the Royal Navy between 1955 and 1968. In 2001 he brought proceedings in negligence against the MOD (alleging the MOD's negligence and breach of statutory duty and its vicarious liability for the negligence and breach of duty of his fellow servicemen) claiming that he had suffered personal injury as a result of his exposure to asbestos fibres and dust while performing his duties as a serviceman. 1. The High Court's judgment of 22 January 2002 ( [2002] EWHC 13 (QB) ) 84. On the preliminary issue of whether the MOD could be sued under section 10 of the 1947 Act, the High Court found that provision to be incompatible with Article 6 § 1 of the Convention. 85. In deciding whether section 10 amounted to a procedural or substantive limitation on his rights, the High Court considered that the issue turned on whether a section 10 certificate extinguished not only Mr Matthews'right to sue for damages but also his primary right arising from the Crown's duty of care: “If, after the passing of the 1947 Act, he had the primary right not to be exposed to asbestos in circumstances amounting to negligence or breach of statutory duty, section 10 merely extinguished his secondary right to claim damages for its breach, and that would amount merely to a procedural bar on his secondary right to claim his preferred remedy for breach of his primary right. ” In concluding that section 10 amounted to a procedural bar to an existing right of action in tort and in thus finding Article 6 applicable, the High Court relied, in particular, on Tinnelly & Sons Ltd and Others and McElduff and Others v. the United Kingdom (judgment of 10 July 1998, Reports 1998-IV) and Fogarty v. the United Kingdom ([GC], no. 37112/97, ECHR 2001-XI). 86. The limitation therefore had to be subjected to a proportionality test. In this respect, the High Court concluded that the disadvantages of a pension scheme were such that access to it was an “exceptionally, indeed an unacceptably” high price to pay for the advantage of not having to prove fault, an advantage that would only apply when the question of the fault of the other party was in doubt. Neither was the High Court convinced that the choice to repeal the 1947 Act prospectively was proportionate, considering, inter alia, that the finding of liability for conduct that was not a basis for liability when it took place was far less pernicious a solution than denying proper damages to persons injured as a result of negligence. 2. The Court of Appeal's judgment of 29 May 2002 ( [2002] EWCA Civ 773 ) 87. The Court of Appeal allowed the MOD's appeal. Section 10 had a substantive and not procedural effect and the High Court's reliance on Fogarty, cited above, was mistaken. The Master of the Rolls stated that: “The requirement in section 10 for a certificate from the Secretary of State as a precondition to defeating a claimant's cause of action is an unusual one and not easily analysed, and it cannot be treated simply as an option to impose a procedural bar on the claim. ” 88. In so finding, the Court of Appeal rejected the MOD's objection, based on Pellegrin v. France ([GC], no. 28541/95, ECHR 1999 ‑ VIII ) and, more recently, R. v. Belgium (no. 33919/96, 27 February 2001), to the applicability of Article 6 § 1, the Court of Appeal finding that Pellegrin was concerned solely with “disputes raised by servants of the State over their conditions of service” whereas the proceedings before the Court of Appeal concerned the nature and effect of section 10 of the 1947 Act on a claim in tort against the MOD. 3. The House of Lords'judgment of 23 February 2003 ( [2003] UKHL 4 ) 89. The applicant appealed, arguing that the Court of Appeal had ignored a clear principle established by Fogarty. The MOD did not pursue the Pellegrin argument. 90. The House of Lords (Lord Bingham of Cornhill, Lord Hoffmann, Lord Hope of Craighead, Lord Millett and Lord Walker of Gestingthorpe) unanimously rejected the appeal. The House of Lords considered the maintenance of the distinction between procedural and substantive limitations on access to a court to be a necessary one since Article 6 was concerned with procedural fairness and the integrity of a State's judicial system rather than with the substantive content of its national law. However, the House of Lords acknowledged the difficulty in tracing the borderline between the substantive and procedural, considering the Convention jurisprudence to be indicative of some difficulty in this respect. Drawing on the text, historical context, legislative intent and the actual operation of section 10 of the 1947 Act and, further, on a comprehensive analysis of the Convention jurisprudence and applicable principles, the House of Lords concluded that section 10 of the 1947 Act maintained the existing lack of liability in tort of the Crown to service personnel for injury suffered that was attributable to service and served to ease servicemen towards the no-fault pension option by taking away the need to prove attributability. It amounted therefore to a substantive limitation on the liability of the Crown in tort to servicemen for service injury to which Article 6 § 1 did not apply. 91. Having reviewed the Convention jurisprudence, Lord Bingham noted that, whatever the difficulty in tracing the dividing line between procedural and substantive limitations of a given entitlement under domestic law, an accurate analysis of a claimant's substantive rights in domestic law was, nonetheless, an essential first step towards deciding whether he had, for the purposes of the autonomous meaning given to the expression by the Convention, a “civil right” such as would engage Article 6. Lord Bingham went on to outline the historical evolution of section 10, considering it clear that there was no parliamentary intention to confer any substantive right to claim damages. “Few common- law rules were better-established or more unqualified”, he began, “than that which precluded any claim in tort against the Crown” and because “there was no wrong of which a claimant could complain (because the King could do no wrong) relief by petition of right was not available”. Claims referred to as “exempted claims” against the Crown for damages for, inter alia, injury sustained by armed forces personnel while on duty were “absolutely barred”. When proposals for reform were put forward in the 1920s, “no cause of action was proposed in relation to the exempted claims”. When the Crown Proceedings Bill was introduced into Parliament in 1947 it again provided that the exempted claims should be “absolutely barred”, but those fulfilling the qualifying condition would be compensated by the award of a pension on a no-fault basis. When what was to become section 10(1) was amended uncontentiously in the House of Commons, the intention was not to alter the “essential thrust of the provision as previously drafted”. The object of the new certification procedure was to “ease the path of those denied any right to a common - law claim towards obtaining a pension, by obviating the need to prove attributability, an essential qualifying condition for the award of a pension”. Whereas the issue of a certificate under section 10(3) of the 1947 Act was discretionary as shown by the permissive “may”, no such permissive language applied to the issuance of a certificate under section 10(1)(b). “It was plainly intended that, where the conditions were met, the Secretary of State should issue a certificate as was the invariable practice of successive Secretaries of State over the next forty years. ” Although different language had been used over the years, “the English courts had consistently regarded section 10(1) as precluding any claim at common law”. It was in fact the “absolute nature of the exclusion imposed by section 10(1)” (coupled with the discrepancy, by 1987, between the value of a pension and of a claim for common- law damages) which fuelled the demand for the revocation of section 10 and led to the 1987 Act. In deciding whether section 10(1) imposed a procedural bar or denied any substantive right, regard had to be had to the practical realities and, in that respect, the Secretary of State's practice had been “uniform and unvarying” so that any practitioner would have advised Mr Matthews that a section 10 certificate was “bound to be issued”. Lord Bingham found Fogarty to be “categorically different” from Matthews and concluded, for reasons closely reflecting those of the Court of Appeal and of Lord Walker (see below), that the appeal was to be rejected. 92. As regards the distinction between substantive and procedural bars to a judicial remedy, Lord Walker conducted a comprehensive analysis of the Convention jurisprudence, highlighting what he considered to be inconsistencies and the difficulties in applying it: “127. The distinction between substantive and procedural bars to a judicial remedy has often been referred to in the Strasbourg jurisprudence on Article 6 § 1, but the cases do not speak with a single clear voice. That is hardly surprising. The distinction, although easy to grasp in extreme cases, becomes much more debatable close to the borderline, especially as different legal systems draw the line in different places ... ... 130. I have already referred to several of the most important Strasbourg cases, but it is useful to see how two contrasting themes have developed since the seminal Golder decision in 1975. Some cases emphasise the importance of avoiding any arbitrary or disproportionate restriction on a litigant's access to the court, whether or not the restriction should be classified as procedural in nature. Others attach importance to the distinction between substance and procedure. 131. The first case to note is Ashingdane v. the United Kingdom ... Section 141 (1) [of the Mental Health Act 1959] imposed substantive restrictions on his rights of action (requiring bad faith or negligence) and subsection (2) imposed a procedural restriction (the need for the Court's permission for the commencement of proceedings). The Commission ... agreed with the parties that'it is immaterial whether the measure is of a substantive or procedural character. It suffices to say that section 141 acted as an unwaivable bar, which effectively restricted the applicant's claim in tort'. But the Commission considered that the restrictions were not arbitrary or unreasonable, being intended to protect hospital staff from ill-founded or vexatious litigation. The Court ... took a similar view. 132. In Pinder v. the United Kingdom ... (from which Ketterick and Dyer are not significantly different) the Commission took the view ... that section 10 of the 1947 Act brought about the substitution of a no-fault system of pension entitlement for the right to sue for damages, and that that removed the claimant's civil right:'It follows, therefore, that the State does not bear the burden of justifying an immunity from liability which forms part of its civil law with reference to “ a pressing social need ” as contended by the applicant .'However the Commission then ... referred to its report in Ashingdane and stated:'These principles apply not only in respect of procedural limitations such as the removal of the jurisdiction of the court, as in the Ashingdane case, but also in respect of a substantive immunity from liability as in the present case. The question, therefore, arises in the present context, whether section 10 of the 1947 Act constitutes an arbitrary limitation of the applicant's substantive civil claims. ' 133. The Commission held that section 10 was not arbitrary or disproportionate ... 134. Powell and Rayner v. the United Kingdom ... was concerned with the effect of section 76(1) of the Civil Aviation Act 1982 on persons complaining of noise from aircraft travelling to and from Heathrow Airport. Section 76(1) excludes liability for any action in trespass or nuisance so long as the height of the aircraft was reasonable in all the circumstances, and its flight was not in breach of the provisions of the Act or any order made under it. In unanimously rejecting the claimants'claim under Article 6 § 1 the European Court of Human Rights simply relied on the fact that the applicants had no substantive right to relief under English law. It rejected a subsidiary argument that the claimants'residuary entitlement to sue (in cases not excluded by section 6(1)) was illusory. 135. The Court's approach in Fayed v. the United Kingdom ... was much less straightforward. ... The Court's discussion of the relevant principles contained ... the following passage ... :'Whether a person has an actionable domestic claim may depend not only on the substantive content, properly speaking, of the relevant civil right as defined under national law but also on the existence of procedural bars preventing or limiting the possibilities of bringing potential claims to court. In the latter kind of case Article 6 § 1 may have a degree of applicability. Certainly the Convention enforcement bodies may not create by way of interpretation of Article 6 § 1 a substantive civil right which has no legal basis in the State concerned. However, it would not be consistent with the rule of law in a democratic society or with the basic principle underlying Article 6 § 1 – namely that civil claims must be capable of being submitted to a judge for adjudication – if, for example, a State could, without restraint or control by the Convention enforcement bodies, remove from the jurisdiction of the courts a whole range of civil claims or confer immunities from civil liability on large groups or categories of persons. ' 136. It is hard to tell how far the last sentence of this passage goes. The Court then referred ... to the distinction between substantive and procedural restrictions:'It is not always an easy matter to trace the dividing line between procedural and substantive limitations of a given entitlement under domestic law. It may sometimes be no more than a question of legislative technique whether the limitation is expressed in terms of the right or its remedy .'The Court did not go any further in attempting to resolve this problem on the ground that it might in any case have had to consider issues of legitimate aim and proportionality for the purposes of Article 8 (respect for private life), even though there was in fact no complaint under Article 8. 137. In Stubbings v. the United Kingdom ... and Tinnelly & Sons Ltd v. the United Kingdom ..., the Court considered whether restrictions on access to the court (in section 2 of the Limitation Act 1980 and section 42 of the Fair Employment ( Northern Ireland ) Act 1976 respectively) were justifiable without adverting expressly to the distinction between substantive and procedural bars. In Waite and Kennedy v. Germany ..., the Commission ... described the immunity as merely a procedural bar, and as such requiring justification. The Court took the same view, regarding ... the claimants'access to some unspecified procedures for alternative dispute resolution as being a material factor. 138. The two most recent cases are of particular importance. In Z [ and Others ] v. the United Kingdom ..., the Court ... held that there had been no breach of Article 6 § 1 in your Lordships'decision in X v. Bedfordshire County Council [1995] 2 AC 633 as to the responsibility of a local authority for children who had suffered neglect and abuse over a period of five years while their suffering was known to the local authority (but they were not the subject of any care order). ... The whole of the Court's judgment on Article 6 § 1 ... merits careful study, but its essence appears from the following passages ... : ...'The Court is led to the conclusion that the inability of the applicants to sue the local authority flowed not from an immunity but from the applicable principles governing the substantive right of action in domestic law. There was no restriction on access to court of the kind contemplated in the Ashingdane judgment .'In reaching these conclusions the majority of the Court stated in plain terms that its decision in Osman had been based on a misunderstanding of the English law of negligence. 139. Finally there is Fogarty v. the United Kingdom ... That case was decided about six months after Z and by a constitution of the Court several of whose members had sat (and some of whom had dissented) in Z. In Fogarty the Court repeated verbatim ... the passage from Fayed which I have already quoted. It rejected ... the United Kingdom's argument that because of the operation of State immunity the claimant did not have a substantive right under domestic law. The Court attached importance to the United States'ability to waive (in fact the judgment said'not choose to claim') immunity as indicating that the bar was procedural. Nevertheless, the Court concluded ... that:'measures taken by a High Contracting Party which reflect generally recognised rules of public international law on State immunity cannot in principle be regarded as imposing a disproportionate restriction on the right of access to court as embodied in Article 6 § 1. Just as the right of access to court is an inherent part of the fair trial guarantee in that Article, so some restrictions on access must likewise be regarded as inherent, an example being those limitations generally accepted by the community of nations as part of the doctrine of State immunity. ' 140. In trying to reconcile the inconsistencies in the Strasbourg jurisprudence it might be tempting to suppose that the Court's wide and rather speculative observations in Fayed (which were not its grounds for decision) marked a diversion which proved, in Z, to be a blind alley. But that explanation immediately runs into the difficulty that in Fogarty, six months after Z, the Court (constituted by many of the same judges) chose to repeat, word for word, the observations made in Fayed. The uncertain shadow of Osman still lies over this area of the law. 141. Nevertheless [Mr Matthews'counsel] conceded that in order to succeed on the appeal, he had to satisfy your Lordships that section 10 of the 1947 Act constituted a procedural bar. He equated this task with satisfying your Lordships that Mr Matthews had at the commencement of his proceedings a cause of action against the [MOD], and that that cause of action was cut off (or defeated) by the [MOD's] invocation of the section 10 procedure. He treated this event as indistinguishable from the United States government's invocation, in Fogarty, of the defence of State immunity (to be precise, its decision not to waive State immunity). In each case, [Mr Matthews'counsel] argued, the defendant was relying on a procedural bar to defeat a substantive claim which was valid when proceedings were commenced. 142. In my view, [Mr Matthews'counsel's] concession was rightly made. Although there are difficulties in defining the borderline between substance and procedure, the general nature of the distinction is clear in principle, and it is also clear that Article 6 is, in principle, concerned with the procedural fairness and integrity of a State's judicial system, not with the substantive content of its national law. The notion that a State should decide to substitute a no-fault system of compensation for some injuries which might otherwise lead to claims in tort is not inimical to Article 6 § 1, as the Commission said in Dyer ... (in a report, specifically dealing with section 10 of the 1947 Act, which has been referred to with approval by the Court in several later cases). 143. In the circumstances [Mr Matthews'] argument clings ever more closely to the bare fact that Mr Matthews had a cause of action when he issued his claim form, and that his claim could not be struck out as hopeless unless and until the Secretary of State issued a certificate under section 10. But European human rights law is concerned, not with superficial appearances or verbal formulae, but with the realities of the situation ( Van Droogenbroeck v. Belgium ... ). [Mr Matthews'] argument does, with respect, ignore the realities of the situation. It is common ground that the Secretary of State does in practice issue a certificate whenever it is (in legal and practical terms) appropriate to do so. He does not have a wide discretion comparable to that of a foreign government in deciding whether or not to waive State immunity (which may be by no means a foregone conclusion, especially in politically sensitive employment cases). The decision whether or not to waive immunity in Fogarty really was a decision about a procedural bar, but I am quite unpersuaded that it provides a parallel with this case. The fact is that section 10 of the 1947 Act did in very many cases before 1987, and still does in cases of latent injury sustained before 1987, substitute a no-fault system of compensation for a claim for damages. This was and is a matter of substantive law and the provision for an official certificate (in order to avoid or at least minimise the risk of inconsistent decisions on causation) does not alter that. Section 10(1)(b), taken on its own, is a provision for the protection of persons with claims against the [MOD]. I respectfully agree with Lord Bingham's analysis of the legislative history of the 1947 Act and with the conclusions which he draws from it. 144. In these circumstances I do not consider it necessary or desirable to attempt to assess whether section 10, if tested as a procedural bar, would meet the test of proportionality. There would be serious arguments either way and as it is not necessary to express a view I prefer not to do so.” 93. Lord Hoffmann agreed with Lord Walker's reasoning and conclusions and made certain additional observations. He noted that Mr Matthews'counsel (also counsel for the present applicant) had conceded that, if the 1947 Act simply said that servicemen had no right of action, it would not have infringed Article 6. Mr Matthews argued, however, that the structure of the 1947 Act was such that he had a civil right (a cause of action in tort) until a section 10 certificate was issued; if no certificate had been issued he would have been able to prosecute his action before the courts; and section 10 therefore gave the Secretary of State a power at his discretion to cut off the applicant's action and prevent him from bringing it before the courts. Lord Hoffmann pointed out that, if the purpose of section 10(1 )( b) and (2)(b) had been to give the Secretary of State a discretionary power “to swoop down and prevent people with claims against the Crown from bringing them before the courts”, he would have agreed since such executive interference would run counter to the rule of law and the principle of the separation of powers. However, referring to the historical analysis of Lord Bingham, he considered it clear that section 10 delimited the substantive cause of action and the section 10 certificate was no more than a binding acknowledgment by the Secretary of State of the “attributable to service” requirement for an award of a pension, the quid pro quo for the inability to sue in tort. He too considered distinguishable Tinnelly & Sons Ltd and Others and McElduff and Others ( Matthews did not involve any encroachment by the executive upon the functions of the judicial branch) and Fogarty (having regard to the discretion available to the foreign government to submit or not to jurisdiction). 94. Lord Hope analysed in some detail the Convention jurisprudence and principles, the history of the 1947 Act, the text and operation of section 10 and the section 10 certification process. He noted: “72. The overall context is provided by the fact that section 10 falls within the same Part [I] of the Act as section 2. Section 2, by which the basic rules for the Crown's liability in tort are laid down, is expressed to be'subject to the provisions of this Act'. Section 10 is an integral part of the overall scheme of liability which is described in Part I of the Act. This was all new law. None of the provisions in this Part which preserved the Crown's immunity from suit in particular cases could be said, when the legislation was enacted, to be removing from anybody a right to claim which he previously enjoyed. 73. As for section 10 itself, ... [i]t proceeds on the assumption that if a claim is made under section 2 of the Act the Secretary of State will have to form a view, on the facts, as to whether or not the case is covered by the immunity. The Secretary of State is told that he cannot have it both ways. He is not allowed to assert the immunity without making a statement in the form of a certificate in the terms which the condition lays down. This has the effect of preventing him, as the minister responsible for the administration of the war pension scheme, from contesting the issue whether the suffering of the thing was attributable to service for the purposes of entitlement to an award under that scheme. This is a matter of substantive law. It is an essential part of the overall scheme for the reform of the law which the 1947 Act laid down. It does not take anything away from the claimant which he had before. On the contrary, it has been inserted into the scheme of the Act for his benefit.” Lord Hope concluded, in full agreement with the reasons expressed by Lord Walker, that section 10 amounted to a substantive limitation on the right to sue the Crown in tort. 95. Lord Millett's judgment also contained a comprehensive assessment of the Court's jurisprudence, the historical context and text of section 10 and the consequent purpose of the section 10 certificate. He noted: “ If the serviceman brought proceedings against the Crown for damages, the question at once arose whether his injury was sustained in circumstances which qualified him for a pension, for if it was the Crown was not liable in damages. Sometimes the Secretary of State had already conceded, or the Tribunal had already found, that whatever the serviceman claimed to be the cause of his injury was attributable to service in the armed forces of the Crown. If so he would grant a certificate to that effect and the action would be struck out on the ground that it disclosed no cause of action. ... In such circumstances the Secretary of State had no discretion whether to grant or withhold a certificate. He was called on to certify an existing state of facts which prevented the proceedings from having any chance of success. It was his duty as a public servant to ascertain the facts and certify or not accordingly.” Lord Millett considered it plain that the section 10 certificate did not operate as a procedural bar to prevent the serviceman from having his civil right judicially determined. As regards Fogarty, and unlike the other Law Lords, he considered that immunities claimed by a State which conformed to generally accepted norms of international law fell outside Article 6 entirely. For the reasons outlined by each of their Lordships with which he agreed, he would also dismiss the appeal. C. Service pensions 1. Entitlement to a service pension 96. The scheme currently in force for the payment of a service pension in respect of, inter alia, illnesses and injuries attributable to service is contained in the Naval, Military and Air Forces Etc. (Disablement and Death) Service Pensions Order 1983 (“the Pensions Order”). 97. The basic condition for the award of a pension is that “the disablement or death of a member of the armed forces is due to service” (Article 3 of the Pensions Order). “Disablement” is defined as “physical or mental injury or damage, or loss of physical or mental capacity” (Schedule 4 to the Pensions Order). Where claims are made more than seven years after the termination of service, Article 5(1)(a) provides that the disablement or death is to be treated as “due to service” if it is due to an injury which is either attributable to service after 2 September 1939 or existed before or arose during such service and was and continues to be aggravated by it. 98. The Pensions Order provides that where, upon reliable evidence, a reasonable doubt exists whether the above conditions are fulfilled, the benefit of that doubt must be given to the claimant (Article 5(4)). 2. The procedure for pension claims and appeals 99. The scheme for the payment of pensions is administered by a specialised agency of the DSS, formerly the War Pensions Agency (“WPA”) and now the Veterans Agency (“VA”). On receipt of an application, the VA, inter alia, obtains the claimant's service records (including service medical records) from the MOD and, with the assistance of additional medical evidence if required, assesses whether the claimant is suffering from a disability attributable to service. The Secretary of State decides on the basis of this assessment whether to award a service pension. 100. A claimant who is refused a war pension by the Secretary of State may appeal to the PAT (see the Pensions Appeal Tribunals Act 1943) in accordance with the PAT Rules. This body is composed of a lawyer, a doctor and a serviceman or ex-serviceman of the same sex and rank as the claimant. 101. The VA provides the PAT with a Statement of Case, which includes, inter alia, a transcript of the claimant's service records including service medical records, civilian medical records and reports including those prepared at the request of the VA and a statement outlining the Secretary of State's reasons for refusing the application. The claimant may submit an answer to the Statement of Case and/or adduce further evidence. A hearing then takes place. The PAT examination is de novo so that the appellant does not have to show that the Secretary of State's decision was wrong. A further appeal lies to the High Court on a point of law with leave from the PAT or the High Court. 3. Disclosure of documents before the PAT 102. Rule 6 of the PAT Rules (“the Rule 6 procedure”) is entitled “Disclosure of official documents and information” and provides as follows: “(1) Where for the purposes of his appeal an appellant desires to have disclosed any document, or part of any document, which he has reason to believe is in the possession of a government department, he may, at any time not later than six weeks after the Statement of Case was sent to him, apply to the President for the disclosure of the document or part and, if the President considers that the document or part is likely to be relevant to any issue to be determined on the appeal, he may give a direction to the department concerned requiring its disclosure (if in the possession of the department) in such manner and upon such terms and conditions as the President may think fit : ... (2) On receipt of a direction given by the President under this rule, the Secretary of State or Minister in charge of the government department concerned, or any person authorised by him in that behalf, may certify to the President – (a) that it would be contrary to the public interest for the whole or part of the document to which the direction relates to be disclosed publicly; or (b) that the whole or part of the document ought not, for reasons of security, to be disclosed in any manner whatsoever; and where a certificate is given under sub-paragraph (a), the President shall give such directions to the tribunal as may be requisite for prohibiting or restricting the disclosure in public of the document, or part thereof, as the case may be, and where a certificate is given under sub-paragraph (b) the President shall direct the tribunal to consider whether the appellant's case will be prejudiced if the appeal proceeds without such disclosure, and, where the tribunal are of the opinion that the appellant would be prejudiced if the appeal were to proceed without such disclosure, they shall adjourn the hearing of the appeal until such time as the necessity for non-disclosure on the ground of security no longer exists.” D. The Access to Health Records Act 1990 (“the 1990 Act”) 103. Prior to 1991 all medical records (civilian or service) were only disclosed on a “medical in confidence” basis. It was a matter for the doctor to decide if it was in the patient's best interests to see his or her records. The 1990 Act came into force on 1 November 1991 and it sets down the rights of persons to access, inter alia, their service and civilian medical records. It applies only to records compiled after the date of its entry into force and to records compiled “in connection with the care of the applicant”. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 104. The applicant complained that section 10 of the Crown Proceedings Act 1947 (“the 1947 Act”) violated his right of access to a court guaranteed by Article 6 § 1 of the Convention, the relevant parts of which provide 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. ... ” A. The applicant's submissions 105. The applicant maintained that the essential point, emphasised by the earlier jurisprudence ( see, notably, Golder v. the United Kingdom, judgment of 21 February 1975, Series A no. 18, and Ashingdane v. the United Kingdom, judgment of 28 May 1985, Series A no. 93 ), was the constitutional protection of the domestic courts against executive control and the assumption of arbitrary power by the State. The Commission's decisions in Ketterick v. the United Kingdom (no. 9803/82, Commission decision of 15 October 1982, unreported), Pinder v. the United Kingdom (no. 10096/82, Commission decision of 9 October 1984, unreported), and Dyer v. the United Kingdom (no. 104 75/83, Commission decision of 9 October 1984, Decisions and Reports 39, p. 246), and the Court's judgment in Fayed v. the United Kingdom ( judgment of 21 September 1994, Series A no. 294 ‑ B, pp. 49-50, § 65) accepted this core constitutional safeguard. Accordingly, whether section 10 of the 1947 Act could be described as a substantive limitation on his right of access to a court or a procedural one, paragraph 65 of Fayed (as cited in Fogarty, cited above ) meant that it should be subjected to a proportionality test. Lord Walker of the House of Lords had recognised in Matthews the difficulty in suggesting that the principle laid down in Fayed had been qualified by the judgment in Z and Others v. the United Kingdom ( [GC], no. 29392/95, ECHR 2001 ‑ V ) and the applicant considered that there was nothing inconsistent in the latter case with the decision in Dyer or judgment in Fayed. 106. Alternatively, section 10 was a procedural limitation on his right of access to a court for a determination of his civil rights. He had a “civil right” (a cause of action recognised by national law) within the meaning of Article 6 § 1 which was extinguished by the issuance of a section 10 certificate. The concept of civil rights was, and rightly so in the applicant's view, an autonomous Convention notion not solely dependent on domestic classifications. This ensured that a State could not legislate to divest itself of its Article 6 responsibilities and implied that a “civil right ” could have a meaning or content different to domestic law. However, the House of Lords in Matthews analysed the existence of a “civil right” solely by reference to domestic law. It was true that there was an unresolved tension between, on the one hand, the principle that the expression “civil rights” had an autonomous meaning and, on the other, the principle that Article 6 applied only to disputes about civil rights which could be said at least on arguable grounds to be recognised under domestic law. The answer was to view domestic law as regulating whether a right had “some legal basis” in domestic law but not as determining whether there was, in fact, a civil right. Accordingly, the fact that the applicant had, until the issuance of the section 10 certificate, a civil cause of action recognised by domestic law was sufficient to conclude that he had a “civil right” for the purposes of Article 6 of the Convention. While the applicant did not contest the historical analysis of Lord Bingham in Matthews, he maintained that the actual operation of section 10 was also pertinent. He had a cause of action until the Secretary of State had, in the exercise of his discretion, issued the section 10 certificate, thereby extinguishing it. It was the existence of this discretion that distinguished his case from Z and Others and rendered it indistinguishable from Fogarty. Section 10 may not have accorded a wide discretion, but it existed and, if not exercised, the cause of action subsisted. Indeed, it took nine months after the issuance of proceedings for the certificate to be issued. 107. Having regard to the material sent by the Porton Down Veterans to the MOD on 7 February 2005 (see paragraph 72 above) and the Government submissions thereon (paragraph 115 below), the applicant considered that the only relevant point was that, as the Government had recognised, the MOD's change of policy as regards his civil action had no impact on the issues or submissions before the Court except to undermine the Government's assertion that section 10 certificates were invariably granted. 108. The applicant further rejected the contention, based on Pellegrin, that Article 6 did not apply. Noting that the MOD had not pursued this argument before the House of Lords, he pointed out that the principles laid down in Pellegrin were relevant only to disputes “raised by employees in the public sector over their conditions of service” as was later confirmed in Fogarty. In so far as it was suggested that R. v. Belgium laid down a rule that any dispute between a serviceman and the services fell outside the scope of Article 6, that would be both inconsistent with Pellegrin and wrong in principle. If it was to be maintained that Pellegrin had laid down such a broad rule, that judgment was incorrect. 109. According to the applicant, the restriction on his right of access to a court was also disproportionate. The legitimate aim pursued by restricting access was identified by the High Court (operational efficiency and discipline during training). However, in 1987 Parliament had clearly considered that any such aim was no longer worth pursuing, it had little to do with someone volunteering for tests and there was no rational connection between section 10 and the aim it purported to pursue, since a section 10 certificate was so broad as to potentially cover situations having no connection with that legitimate aim. Even with the pension alternative, the restriction was disproportionate to any such legitimate aim. The breadth of the restriction was greater than necessary to achieve its objective. The pension scheme was manifestly inadequate and this was an exceptionally high price to pay for the advantage of not having to prove fault. The fundamental injustice of section 10 of the 1947 Act was recognised by its repeal in 1987 and, further, service personnel who now discover an injury that was sustained prior to 1987 will be treated less favourably than those with a similar injury sustained after 1987. B. The Government's submissions 110. The Government relied on the judgments of the Court of Appeal and the House of Lords in Matthews, cited above. Both courts had considered in some detail the Convention case-law and decided (the House of Lords unanimously) that Article 6 was inapplicable because section 10 of the 1947 Act was a substantive element of national tort law delimiting the extent of the civil right in question. 111. Even if difficult, the distinction between substantive and procedural provisions remained necessary. The oft-quoted paragraph 65 of the judgment in Fayed, cited above, provided no basis for ignoring this distinction and the Court of Appeal and the House of Lords convincingly explained why it should be maintained. Any creation of a sort of hybrid category would expand the applicability of Article 6 beyond its proper boundaries, turning it from a provision guaranteeing procedural rights to one creating substantive ones, which would, in turn, go against the well-established principle that Article 6 applied only to civil rights which could be said on arguable grounds to be recognised under domestic law. In addition, the Government considered it vital to bear in mind the rationale underlying Article 6: the protection of the rule of law and the proper separation of powers from any threat ( see Golder, cited above, and Lord Hoffmann in Matthews ). A provision entitling the executive to exercise arbitrary discretion to prevent otherwise valid claims from being decided by the courts would threaten the rule of law, whereas section 10 brought with it no such threat as it simply defined the circumstances in which a no-fault pension scheme would replace a claim in tort for damages. Moreover, it was essential to analyse accurately an individual's substantive rights in domestic law taking into account the history and legislative context of the provision and its purpose (as did Lord Bingham). The purpose of the provision could then be measured against the underlying rationale of Article 6 of the Convention. 112. The core question was therefore the actual characterisation to be given (procedural or substantive) to the relevant limitation. The essential starting - point was an accurate analysis of domestic law and considerable respect had to be shown to the analysis of the restriction by the higher domestic courts. The Government suggested caution as regards the terminology used so that, for example, the use of the word “immunity” was not determinative of the question: indeed, domestic law recognised an immunity from liability (substantive) and immunity from suit (procedural). The Government further considered, for the reasons outlined in the judgments in Matthews, that section 10 was a substantive limitation. The uncontroversial starting - point was that, prior to the 1947 Act, there was no common- law right to claim damages in tort from the Crown: section 10 could not therefore have removed or taken away any pre-existing right. The 1947 Act created such a right in section 2 but did so expressly subject to section 10 which preserved the preclusion from claiming damages in cases concerning servicemen. In short, the parliamentary intention behind the 1947 Act was to maintain the pre-existing preclusion in so far as servicemen were concerned. Both sections 2 and 10 were contained in Part I of the Act entitled “Substantive Law”, a title which accurately reflected the nature of Part I which was a composite of provisions laying down the basic rules for the Crown's liability in tort. Both the prior common law and the 1947 Act were rules of general application marking the limits of tortious liability in domestic law: they were expressed in the language of rules of substantive law and the circumstances in which there was no right to claim (the section 10 exception to the section 2 right to claim) were of general application and clearly set out in the statute. The certification provisions, properly understood in context, did not indicate the existence of a right to claim removed by some broad discretion of the executive. There was no such right in the first place and the discretion was a narrow one: in this latter respect, the circumstances in which Parliament intended that no action could be brought were fully defined (sections 10(1)(a) and (2)(b)), the narrow discretion therein can be contrasted with the broad discretion in section 10(3) of the 1947 Act, and the discretion was uniformly and invariably exercised. The purpose of the certification provisions was not to confer a broad discretion to take away an existing cause of action but rather to ease the path of servicemen towards an alternative pension by taking away the need to prove a causal link between the injury and service. If a certificate was not issued, a cause of action continued but under section 2 of the 1947 Act. Accordingly, the certification process did not have any purpose or effect that threatened the rule of law or the separation of powers or was inimical to the rationale behind Article 6. For these reasons, the Government maintained that the Court of Appeal and the House of Lords correctly concluded in Matthews that section 10 was a substantive provision limiting the scope of the civil right. 113. Alternatively, the Government submitted that Article 6 was not applicable given the “functional” principles outlined in Pellegrin (§ 66) as applied in R. v. Belgium. 114. In the further alternative, the Government argued that, even if Article 6 applied, any interference with the applicant's access to a court was proportionate having regard, on the one hand, to the vagaries, costs and other difficulties of an uncertain fault- based action (where the task of determining whether it was just and reasonable to impose a duty of care would be especially difficult) and, on the other, to the certainty and relative efficiency of a no-fault needs-based system. The Commission (in Ketterick, Dyer and Pinder, all cited above ) concluded (as recently as 1984) that the creation of the no-fault pension entitlement was an adequate alternative to the right to sue in negligence. The fact that the State decided in 1987 that the bar on service personnel suing in tort was no longer necessary for claims thereafter did not mean that the prior restriction was inappropriate or disproportionate. 115. Following receipt of the letter of the Porton Down Veterans of 7 February 2005 (see paragraph 72 above), the Government Agent caused urgent inquiries to be made. In submitting this correspondence to this Court, the Government pointed out that neither they nor the Secretary of State in 1995 (in issuing the section 10 certificate) were aware of these Treasury Solicitor letters until the above-noted letter of 7 February 2005. A policy decision had been taken by the MOD not to “take a section 10(1) point” as regards certain civil claims mounted by some Porton Down volunteers because at least some of the tests (including those conducted on Mr Maddison to which the Treasury Solicitor's letters related) had been conducted by or under the direction and control of civilian personnel and not solely by members of the armed forces. While it was not clear precisely which type of personnel were involved in tests on the applicant, “there appear to have been some armed forces personnel and some civilians involved” in the applicant's tests. The MOD stated that it would be prepared to treat the applicant as falling within the above-noted policy decision. The applicant could now sue for damages in tort given this decision of the MOD. He retained, in addition, the separate right to continue with his claim for a pension in the PAT since the section 10 certificate remained valid for the purpose of those proceedings. When the section 10 certificate was issued in 1995, the Minister believed section 10 to be applicable and, until the Treasury Solicitor's letters of advice were recently produced, that was the belief of the Government Agent. They concluded that it was “at least arguable” that, if the applicant had commenced a civil negligence action following his section 10 certificate (of August 1995), the action would have been barred. According to the Government, therefore, the Article 6 issues he raised before the Court remained live. C. The Court's assessment 1. General principles 116. The right of access to a court guaranteed by Article 6 in issue in the present case was established in Golder ( cited above, pp. 13 - 18, §§ 28-36). In that case, the Court found the right of access to a court to be an inherent aspect of the safeguards enshrined in Article 6, referring to the principles of the rule of law and the avoidance of arbitrary power which underlay much of the Convention. Thus, Article 6 § 1 secures to everyone the right to have a claim relating to his civil rights and obligations brought before a court (see, more recently, Z and Others, cited above, § 91). 117. Article 6 § 1 does not, however, guarantee any particular content for those ( civil ) “ rights” in the substantive law of the Contracting States : the Court may not create through the interpretation of Article 6 § 1 a substantive right which has no legal basis in the State concerned ( see Fayed, cited above, pp. 49 -50, § 65). Its guarantees extend only to rights which can be said, at least on arguable grounds, to be recognised under domestic law ( see James and Others v. the United Kingdom, judgment of 2 1 February 1986, Series A no. 98, and Z and Others, § 81, and the authorities cited therein, together with McElhinney v. Ireland [GC], no. 31253/96, § 23, 21 November 2001 ). 118. The applicant maintained that there was a certain tension between this aforementioned principle, on the one hand, and, on the other, the established autonomous meaning accorded by the Court to the notion of “civil rights and obligations”. Connected to this, he questioned the distinction between a restriction which delimits the substantive content properly speaking of the relevant civil right, to which the guarantees of Article 6 § 1 do not apply ( see Powell and Rayner v. the United Kingdom, judgment of 21 February 1990, Series A no. 172, pp. 16-17, § 36, and Z and Others, cited above, § 100), and a restriction which amounts to a procedural bar preventing the bringing of potential claims to court, to which Article 6 could have some application ( see Tinnelly & Sons Ltd and Others and McElduff and Others, p. 1657, § 62; Al-Adsani v. the United Kingdom [GC], no. 35763/97, §§ 48-49, ECHR 2001 ‑ XI; Fogarty, § 26; and McElhinney, § 25 ). The applicant argued that it was not necessary to maintain that distinction (relying on the Commission decisions in Ketterick, Pinder and Dyer, cited above, together with paragraph 65 (p. 49) of Fayed, as cited in Fogarty, § 25) : any restriction should be subjected to a proportionality test because the important point was to protect the courts from the assumption of arbitrary power and control on the part of the executive. 119. The Court cannot agree with these submissions of the applicant. It does not find any inconsistency between the autonomous notion of “civil” ( see König v. Germany, judgment of 28 June 1987, Series A no. 27, p. 30, § 89, and, more recently, Ferrazzini v. Italy [GC], no. 44759/98, §§ 24-31, ECHR 2001 ‑ VII) and the requirement that domestic law recognises, at least on arguable grounds, the existence of a “right” ( see James and Others, cited above, pp. 46-47, § 81; Lithgow and Others v. the United Kingdom, judgment of 8 July 1986, Series A no. 102, p. 70, § 192; and The Holy Monasteries v. Greece, judgment of 9 December 1994, Series A no. 301-A, pp. 36-37, § 80 ). In addition, the Commission decisions in Ketterick, Pinder and Dyer must be read in the light, inter alia, of the judgment in Z and Others (cited above) and, in particular, in the light of the Court's affirmation therein as to the necessity to maintain that procedural/substantive distinction: fine as it may be in a particular case, this distinction remains determinative of the applicability and, as appropriate, the scope of the guarantees of Article 6 of the Convention. In both these respects, the Court would reiterate the fundamental principle that Article 6 does not itself guarantee any particular content of substantive law of the Contracting Parties (see, amongst other authorities, Z and Others, cited above, § 87). No implication to the contrary can be drawn, in the Court's view, from paragraph 6 7 of Fayed. The fact that the particular circumstances of, and complaints made in, a case may render it unnecessary to draw the distinction between substantive limitations and procedural bars ( see, for example, A. v. the United Kingdom, no. 35373/97, § 65, ECHR 2002 ‑ X ) does not affect the scope of Article 6 of the Convention which can, in principle, have no application to substantive limitations on the right existing under domestic law. 120. In assessing therefore whether there is a civil “ right” and in determining the substantive or procedural characterisation to be given to the impugned restriction, the starting - point must be the provisions of the relevant domestic law and their interpretation by the domestic courts ( see Masson and Van Zon v. the Netherlands, judgment of 28 September 1995, Series A no. 327 ‑ A, p. 19, § 49). Where, moreover, the superior national courts have analysed in a comprehensive and convincing manner the precise nature of the impugned restriction, on the basis of the relevant Convention case-law and principles drawn therefrom, this Court would need strong reasons to differ from the conclusion reached by those courts by substituting its own views for those of the national courts on a question of interpretation of domestic law ( see Z and Others, cited above, § 101) and by finding, contrary to their view, that there was arguably a right recognised by domestic law. 121. Finally, in carrying out this assessment, it is necessary to look beyond the appearances and the language used and to concentrate on the realities of the situation ( see Van Droogenbroeck v. Belgium, judgment of 24 June 1982, Series A no. 50, pp. 20-21, § 38). The Court must not be unduly influenced by, for example, the legislative techniques used ( see Fayed, pp. 50-51, § 67) or by the labels put on the relevant restriction in domestic law: as the Government noted, the oft-used word “immunity” can mean an “immunity from liability” (in principle, a substantive limitation) or an “immunity from suit” (suggestive of a procedural limitation). 2. Application to the present case 122. The Court has therefore taken as a starting - point the assessment of, and conclusions concerning, section 10 of the 1947 Act by the House of Lords in Matthews, cited above. Drawing on the historical context, the text and purpose of, in particular, sections 2 and 10 of the 1947 Act, the House of Lords concluded that section 10 was not intended to confer on servicemen any substantive right to claim damages against the Crown but rather had maintained the existing (and undisputed) absence of liability in tort of the Crown to servicemen in the circumstances covered by that section. The Lords made it clear that prior to 1947 no right of action in tort lay against the Crown on the part of anyone. The doctrine that “the King could do no wrong” meant that the Crown was under no liability in tort at common law. Section 2 of the 1947 Act granted a right of action in tort for the first time against the Crown but the section was made expressly subject to the provisions of section 10 of the Act. Section 10 (which fell within the same part of the 1947 Act as section 2 entitled “ Substantive law” – see Lord Hope in Matthews, paragraph 94 above) provided that no act or omission of a member of the armed forces of the Crown while on duty should subject either that person or the Crown to liability in tort for causing personal injury to another member of the armed forces while on duty. Section 10 did not therefore remove a class of claim from the domestic courts'jurisdiction or confer an immunity from liability which had been previously recognised: such a class of claim had never existed and was not created by the 1947 Act. Section 10 was found therefore to be a provision of substantive law which delimited the rights of servicemen as regards damages claims against the Crown and which provided instead as a matter of substantive law a no-fault pension scheme for injuries sustained in the course of service. 123. As to whether there exist strong reasons to depart from this conclusion, the applicant mainly argued that the section 10 certificate issued by the Secretary of State operated as a procedural restriction to prevent him from pursuing a right of action which he enjoyed under the 1947 Act from the moment he suffered significant injury. The Court is unable to accept this argument. It finds that section 10 must be interpreted in its context and with the legislative intent and purpose in mind. As explained in detail in the judgments of Lord Bingham and Lord Hope in Matthews, the object of the certification procedure introduced by section 10(1)(b) was not to alter the essential thrust of section 10 as originally drafted – namely, to exclude the Crown's liability altogether – but was rather to facilitate the grant of a pension to injured service personnel by obviating the need to prove that the injury was attributable to service. Moreover, Lord Bingham pointed out that the “realities of the situation” were that it was “plainly intended” that the section 10 certificate would be issued where the relevant conditions had been fulfilled and he noted that that had indeed been the uniform and unvarying practice of successive Secretaries of State for forty years, to the extent that any practitioner would have advised Mr Matthews that a section 10 certificate was bound to be issued (see also Lord Walker in Matthews, paragraph 92 above ). This narrow discretion conferred by section 10(1)(b) was to be contrasted with the broader discretion for which section 10(3) of the 1947 Act provided. For the reasons set out in paragraph 126 below, this finding as to the narrow discretion of the Secretary of State is not altered by the fact that the latter has now decided not to maintain “a section 10(1) point” against the applicant. The Court finds this discretion conferred on the Secretary of State by section 10 to be fundamentally different in character from the unfettered discretion enjoyed by a foreign government, which was the subject of the Court's examination in Fogarty, not to waive State immunity and thereby to prevent a claim otherwise well-founded in domestic law from being entertained by a domestic court. The certification procedure provided for by section 10 is similarly to be distinguished from that considered by the Court in Tinnelly & Sons Ltd and Others and McElduff and Others. In that case, the Fair Employment ( Northern Ireland ) Act 1976 clearly granted a right in national law to claim damages for religious discrimination when tendering for public contracts. Section 42 of the 1976 Act was not aimed at creating an exception for cases in which Parliament (when adopting the 1976 Act) considered discrimination justified but rather allowed the Secretary of State by a conclusive certificate, based on an assertion that the impugned act was done to protect national security, to stop court proceedings that would otherwise have been justified. As observed by Lord Hoffmann, section 10 did not involve such encroachment by the executive into the judicial realm but rather concerned a decision by Parliament in 1947 that, in a case where injuries were sustained by service personnel which were attributable to service, no right of action would be created but rather a no-fault pension scheme was to be put in place, the certificate of the Secretary of State serving only to confirm that the injuries were attributable to service and thereby to facilitate access to that scheme. 124. Accordingly, this Court finds no reason to differ from the unanimous conclusion of the Court of Appeal and the House of Lords as to the effect of section 10 in domestic law. It considers that the impugned restriction flowed from the applicable principles governing the substantive right of action in domestic law ( see Z and Others, § 100). In such circumstances, the applicant had no ( civil ) “ right” recognised under domestic law which would attract the application of Article 6 § 1 of the Convention ( see Powell and Rayner, cited above, pp. 16-17, § 36). It is not therefore also necessary to examine the parties'submissions as to the proportionality of that restriction. It is further unnecessary to examine the Government's argument that Article 6 was inapplicable on the basis of the above-cited judgments in Pellegrin and R. v. Belgium. 125. The Court concludes that Article 6 of the Convention is not applicable and that there has not therefore been a violation of that provision. 126. Finally, the Court has noted the submissions of the parties concerning the recent discovery of the Treasury Solicitor's letters of advice from 1953 concerning another test participant ( see paragraphs 72, 107 and 115 above). The fact that the Secretary of State has now decided to no longer “take a section 10(1) point” in any civil action of the applicant, does not alter or otherwise affect the above conclusion in respect of section 10 in the applicant's case. That decision merely serves to resolve in the applicant's favour a doubt which has recently emerged (not commented upon by the applicant and remaining unclarified) as to whether the applicant in fact belonged to a category of persons to which the provisions of section 10 applied. Further, it is a decision which concerns the future, the Government having confirmed that the section 10 certificate remains valid for the purposes of the ongoing PAT appeal. The Court has, however, returned to these submissions in the context of Article 8 of the Convention below. II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 127. The applicant further complained that section 10 of the 1947 Act had also violated his right to the peaceful enjoyment of his possessions guaranteed by Article 1 of Protocol No. 1, the relevant part of 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. ... ” 128. For the reasons outlined in the context of Article 6, the applicant maintained that he had a “possession” (a claim in negligence against the MOD) until deprived of it, in an unjustified manner, when the Secretary of State issued the section 10 certificate ( see Pressos Compania Naviera S.A. and Others v. Belgium, judgment of 20 November 1995, Series A no. 332, p. 21, § 31). The Government pointed out that, while Article 1 of Protocol No. 1 recognised a vested cause of action as a possession, any claim the applicant might otherwise have had in tort was always subject to section 10 of the 1947 Act and was defeasible. There had been, therefore, no interference with the applicant's rights under that provision. Indeed, Mr Matthews ( see Matthews, cited above ) did not pursue this argument before the House of Lords. 129. The Court reiterates that a proprietary interest in the nature of a claim can only be regarded as a possession where it has a sufficient basis in national law, including settled case-law of the domestic courts confirming it ( see Kopecký v. Slovakia [GC], no. 44912/98, § 52, ECHR 2004 ‑ IX ). The applicant argued that he had a “possession” on the same grounds as he maintained that he had a “civil right” within the meaning of Article 6 § 1. For the reasons outlined under Article 6 § 1 above (see paragraphs 122- 24), the Court considers that there was no basis in domestic law for any such claim. The applicant had no “possession” within the meaning of Article 1 of Protocol No. 1 and the guarantees of that provision do not therefore apply. 130. Accordingly, there has been no violation of Article 1 of Protocol No. 1. III. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 6 OF THE CONVENTION AND ARTICLE 1 OF PROTOCOL No. 1 131. The applicant further argued under Article 14 of the Convention ( taken in conjunction with Article 6 of the Convention and Article 1 of Protocol No. 1) that section 10 of the 1947 Act was discriminatory. 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.” 132. He maintained, for the reasons set out above in the context of Article 6 of the Convention and Article 1 of Protocol No. 1, that the impugned facts fell within the ambit of those Convention provisions. He further argued that he had been treated less favourably than other persons in an analogous position: he referred to other employees who had suffered injury as a result of the negligence or lack of foresight of their employers or, alternatively, to other servicemen injured as a result of activities after 1987. He also considered that difference in treatment to be disproportionate on the same grounds as he maintained the interference with his right of access to a court was unjustified. The Government disagreed. 133. In the light of its findings ( see paragraphs 124 and 129 above) that the applicant had no “civil right” or “possession” within the meaning of Article 6 § 1 and Article 1 of Protocol No. 1 so that neither Article was applicable, the Court considers that Article 14 is equally therefore inapplicable ( see, amongst many other authorities, Petrovic v. Austria, judgment of 27 March 1998, Reports 1998-II, p. 585, § 22 ). 134. There has therefore been no violation of Article 14 of the Convention. IV. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 6 OF THE CONVENTION AND/OR ARTICLE 1 OF PROTOCOL No. 1 135. The applicant also complained under Article 13 of the Convention taken in conjunction with Article 6 of the Convention and Article 1 of Protocol No. 1 that he was left without an effective remedy for the unlawful barring of his claim or, alternatively, the unlawful deprivation of his possessions. 136. The Government contended that there was no arguable claim of a violation of Article 1 of Protocol No. 1 or, consequently, of 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.” 137. The Court notes that the applicant's complaints under Article 6 and Article 1 of Protocol No. 1 are clearly directed against the provisions of section 10 of the 1947 Act. In this respect, the Court reiterates that Article 13 does not go so far as to guarantee a remedy allowing a Contracting State's primary legislation to be challenged before a national authority on the ground that it is contrary to the Convention ( see James and Others, cited above, p. 47, § 85). 138. Accordingly, there has been no violation of Article 13 of the Convention. V. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 139. The applicant complained about inadequate access to information about the tests performed on him in Porton Down. He considered that his access to information to allay his fears about the tests was sufficiently linked to his private and family life to raise an issue under Article 8 of the Convention, the relevant parts of which 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.” A. The applicant's submissions 140. The applicant's primary submission was that the State failed to provide him with information about his test participation in breach of its positive obligation to respect his private and family life. 141. Relying mainly on the Court's judgments in Gaskin v. the United Kingdom (judgment of 7 July 1989, Series A no. 160), Guerra and Others v. Italy (judgment of 19 February 1998, Reports 1998 ‑ I) and McGinley and Egan ( cited above ), he maintained that he had a right to information under Article 8 to allow him to understand and react to the risks and dangers to which he had been exposed. This was a free-standing obligation (unattached to any judicial or other process) to provide an “effective” and “accessible” means for an individual to “seek all relevant and appropriate information”. His particular need for information, and for the means of obtaining it, first arose in 1987 when he initially began to seek his records, well before and separate from any PAT appeal. In any event, attaching the positive obligation to the PAT process was absurd as it would effectively require someone (whether or not he or she was entitled to, or was interested in, a pension) : to engage in a litigious process and, in particular, to apply for a pension and/or threaten litigation under section 2 of the 1947 Act; to hope that any pension application would be unsuccessful at first instance so that he/she could appeal to the PAT; and, before the PAT, to discharge a burden of proof and demonstrate the relevance of the documents to the litigation issues before he/she could obtain an order for disclosure under Rule 6 of the PAT Rules. Rule 6 is designed for the contentious litigation process and not to assuage fear by providing information : the applicants in McGinley and Egan had not relied on the general right to information and their case was therefore distinguishable on the facts. 142. The applicant maintained that the State did not secure his right to an effective and accessible procedure to obtain the necessary information. 143. Prior to the 1998 Scheme (see paragraph 69 above) and his PAT appeal, he had made significant attempts, apart from any litigation, to obtain information. The first information disclosed was to his doctor on a “medical in confidence” basis so he did not see it until 1994. It was not, in any event, useful as it contained errors and gaps (it did not mention the mustard gas tests) and was unsubstantiated by underlying records. He obtained some meaningful disclosure in December 1997 and March 1998 but this too was inadequate and it came via extraordinary channels (a meeting with a Minister of State and in the context of his application to this Court ). It did not amount to “all relevant and appropriate information”: there was no mention of the 1962 tests and no information about the 1963 mustard gas test; the standards of record generation (at the time) and maintenance (thereafter) were recognised to be lacking; while it was stated that all documents had been disclosed, this was obviously not the case given later disclosure; and the letter of December 1997 contained assertions unsubstantiated by any records. 144. The subsequent 1998 Scheme could not remedy this and was itself an inadequate means of obtaining information. The 1998 Scheme began more than ten years after he had begun to seek information and subsequent to his introduction of the present application. The reassurances in the information pamphlet were unconvincing as they were not backed up by an epidemiological study and the pamphlet promised only a summary of records and the possibility of going to Porton Down to inspect records. Indeed, the applicant considered that the 1998 Scheme confirmed the lack of adequate and effective means of obtaining information. 145. Similarly, the subsequent Rule 6 procedure did not cure this earlier lack of information and it was, in any event, neither effective nor accessible since it was a cumbersome, unwieldy and long procedure allowing incomplete and drip- feed disclosure (the latest being in April 2005). The procedure could be conditioned and limited as the President of the PAT wished, Rule 6 providing that the President “may” order disclosure only if the information “is likely to be relevant to any issue to be determined on appeal”. In addition, the applicant considered the Rule 6 procedure to lack effective control: there were no time-limits on disclosure and disclosure was allowed on a piecemeal basis. There were also significant delays in the procedure. The applicant accepted that some delay was attributable to him and he explained the reasons for his delay in responding to the PAT's letter of 25 July 2001 and for applying to adjourn the October 2002 hearing. However, he argued that those delays did not, in any event, lead to the overall delay in the procedure: the MOD continued to make disclosure thereafter and the hearing adjournment was attributable also to the VA which was not ready, to the reasonable confusion as to the scope of the appeal and to the need to put further questions to Dr H. The uncontrolled certification by the MOD of records as undisclosable “departmental minutes or records” also undermined the ability of the Rule 6 procedure to fulfil the positive obligation under Article 8, as did the power to withhold documents on “national security” grounds. The whole Rule 6 procedure was, in the applicant's view, marked by errors, contradictory statements and admissions that certain documents could no longer be found with the consequence that the information at the end of the disclosure process was incomplete. Had Mr McGinley and Mr Egan used the Rule 6 procedure, the Court would have inevitably concluded in its judgment as to the inability, both in principle and in practice, of that procedure to satisfy the positive obligation to provide an accessible and effective means of obtaining information. 146. Moreover, the applicant maintained that all “relevant and appropriate information” had not been disclosed to him. Apart from the conclusion that could be drawn from the piecemeal disclosure to date, accompanied by unsubstantiated assurances (later contradicted) that all disclosure had been made, the applicant considered that two other factors demonstrated that all relevant and appropriate documents had not been disclosed. In the first place, there was, in the applicant's view, an unacceptable failure to create and maintain records which rendered compliance with the Article 8 positive obligation impossible from the outset. Secondly, the Government had, until recently, refused to carry out a long-term follow-up study which was the only effective way to provide information. He considered unconvincing the reasoning and conclusion of the feasibility study report ( see paragraph 55 above), while the recently commissioned study ( see paragraph 70 above) had still not been completed and, further, begged the question as to why it was not done earlier. 147. As to the proportionality of the State's position, the applicant noted that the Government did not plead a national security justification but rather one based on quite narrow “medical in confidence” grounds. While withholding information on “medical in confidence” grounds could serve a legitimate aim (the interests of health professionals compiling medical records and, consequently, the interests of patients), the applicant was not convinced of this in the present case since the only persons who stood to gain by the Porton Down scientists expressing themselves freely were the scientists themselves. In any event, the “medical in confidence” approach was abandoned generally (in 1991 with the entry into force of the Access to Health Records Act 1990) and specifically as regards Porton Down participants (with the introduction of the 1998 Scheme). This defence to full disclosure was clearly not proportionate having regard to the enormous importance of the information for the applicant; the paucity of the information disclosed and the piecemeal manner in which that had been done; the need for actual and original records to make a proper risk assessment; the anxiety and stress caused by the absence of such a risk assessment; the facts that the tests were in secret, that the participants were forbidden to speak of them and that there were no safeguards against abuse put in place; the toxic and hazardous material to which the participants were exposed; and the lack of an adequate follow-up study which might have generated conclusions to clarify the issue for test participants one way or the other. 148. Relying on the detailed legal submissions made, and shortcomings highlighted, in the context of his primary Article 8 submission, the applicant advanced two alternative and secondary arguments. In the first place, he maintained that the procedures and systems surrounding the tests did not fulfil the procedural requirements inherent in respect for private life, so that the Government had failed adequately to secure and respect his Article 8 interests ( see W. v. the United Kingdom, judgment of 8 July 1987, Series A no. 121, and McMichael v. the United Kingdom, judgment of 24 February 1995, Series A no. 307 ‑ B). Secondly, he argued that the Government had failed to secure his Article 8 rights in that they had failed to adequately investigate and research (or, alternatively, to put in place an adequate system to investigate and research) the potential risks to which they had chosen to expose him. Just as Articles 2 and 3 implied an investigatory requirement ( see McCann and Others v. the United Kingdom, judgment of 27 September 1995, Series A no. 324; Hugh Jordan v. the United Kingdom, no. 24746/94, 4 May 2001; Paul and Audrey Edwards v. the United Kingdom, no. 46477/99 ECHR 2002-II; and Menson v. the United Kingdom (dec.), no. 47916/99, ECHR 2003 ‑ V), so a similar obligation arose under Article 8 of the Convention. B. The Government's submissions 149. While the Government considered that there was no evidence that the tests had had a negative impact on his health, the key answer to the applicant's complaint was, as found in McGinley and Egan, cited above, that the positive obligation under Article 8 to provide an effective and accessible procedure giving access to all relevant and appropriate information had been fulfilled by the Rule 6 procedure. This was a conclusion of principle not altered by, and indeed confirmed by, the facts of the present case. 150. The procedure was demonstrably accessible to the applicant and he had successfully relied on and used it. It had been available to him at all relevant times since the illnesses in respect of which he claimed a pension manifested themselves in the late 1980s. He had not appealed to the PAT until November 1998 or made the Rule 6 request until July 1999. Accordingly, the period prior to July 1999 could not be relied upon to assess the accessibility (or indeed the effectiveness) of the Rule 6 procedure. In addition, should the current State epidemiological study provide evidence to support the applicant's case, he could begin his pension claim again. 151. The Rule 6 procedure was also capable of being effective and, on the facts of the present case, was effective in producing the relevant documents for the applicant in a reasonable period of time. 152. It was in principle effective since it allowed disclosure of documents directly corresponding to the positive obligation under Article 8. The retention of certain documents on national security or public interest grounds did not undermine its effectiveness and was compatible with the Convention, as it enabled a balance to be struck between the competing interests involved and was not without statutory safeguards (the text of Rule 6 itself). There was no systematic delay or “lack of control” over the Rule 6 procedure. It was also effective in the present case. Pursuant to the applicant's request, a Rule 6 order was made setting out in broad terms the simple categories of document to be disclosed. The Secretary of State approached compliance in a timely manner, thoroughly and with an evident disposition to conduct an extensive and wide - ranging search in order to disclose the maximum documents possible. A wide range of test documentation was disclosed: nothing of significance was withheld on national security grounds. The applicant made no further request under Rule 6 for disclosure to the PAT. 153. If there was some delay attributable to the State after July 1999, it did not undermine the effectiveness of the process and there was no tangible evidence of prejudice to the applicant's case. The applicant had the “responsive documents” well in advance of the PAT hearing and was able to make use of them as he considered appropriate. The delay in furnishing the fifth category of documents (see paragraphs 53 and 55 above) was not surprising given the width of that category, the need to ensure completeness, the time that had elapsed since the tests and the “need to consider serious classification issues”. Moreover, any delay by those authorities was to be measured against the applicant's own delays: Rule 6 was only relied on in July 1999 although it had been available since the late 1980s when the applicant began to look for documents; he caused confusion, and consequently delay, as regards the breadth of the PAT appeal; and, indeed, the Government attributed to the applicant any delay after the Secretary of State's letter of 6 July 2001. Furthermore, and other than the timely disposal of the PAT proceedings, there were no time - sensitive issues as in, for example, the preventative measures in issue in Guerra and Others, cited above. Disclosure in stages was not unexpected (given the broad category of documents requested, their age and the numerous checks required) and it was a better option than holding all documents until all had been located. As to the suggestion that the documentation was not complete, the Government pointed out that, as in McGinley and Egan, the State could not be held responsible for any allegation concerning the failure to make or maintain records prior to the State's acceptance of the right of individual petition in 1966. As to the complaint about a refusal to carry out a follow-up study, the Government argued that there was no positive obligation to do so, that on no view could such an obligation arise without compelling evidence that there was a material problem and that, in any event, there was at the time an ongoing epidemiological study to assuage the fears of the servicemen. 154. Finally, the Government also referred to the medical responses in 1987 and 1989, to meetings and correspondence with the Secretary of State in 1997, to the 1998 Scheme and to the ongoing epidemiological study, to conclude that the applicant had had access to all relevant information. C. The Court's assessment 1. Applicability of Article 8 155. The Government were not definitive about the applicant's participation in tests in 1962 despite the findings of the PAT. The Court considers that it is not necessary for current purposes to resolve this dispute since, in any event, it is accepted that the applicant attended the Chemical and Biological Defence Establishment at Porton Down in 1963 to participate in testing on armed forces personnel of mustard and nerve gas. The tests are described in paragraphs 15 and 16 above and involved the applicant's exposure to small doses of both of these agents for research purposes. In the case of mustard gas, the PAT expressly found that the aim was to test the suitability of military clothing to exposure (the PAT finding of fact – see paragraph 63 above) and it would appear from the inhalation of nerve gas, that the aim was to test the reaction of service personnel to it. Even accepting the Government's clarifications about the manner in which those tests were conducted, the Court considers that the issue of access to information, which could either have allayed the applicant's fears or enabled him to assess the danger to which he had been exposed, was sufficiently closely linked to his private life within the meaning of Article 8 as to raise an issue under that provision ( see McGinley and Egan, cited above, pp. 1362-63, § 97). It is not necessary to examine whether the case also gives rise to a separate issue under the family life aspect of this Article. 156. It follows that Article 8 of the Convention is applicable. 2. Compliance with Article 8 157. The applicant considered that the State had failed to provide him with access to information in violation of his rights under Article 8. The Court observes that, in addition to the primarily negative undertakings in Article 8 of the Convention, there may be positive obligations inherent in effective respect for private life. In determining whether or not such a positive obligation exists, it will have regard to the fair balance that has to be struck between the general interest of the community and the competing interests of the individual concerned, the aims in the second paragraph of Article 8 being of a certain relevance ( see Gaskin, cited above, p. 17, § 42). 158. In Gaskin, a file existed containing details of the applicant's childhood history that he had no opportunity of examining in its entirety. The Court found (p. 20, § 49) that the United Kingdom, in handling his requests for access to those records, was in breach of a positive obligation flowing from Article 8 of the Convention: “ ... persons in the situation of the applicant have a vital interest, protected by the Convention, in receiving the information necessary to know and to understand their childhood and early development. On the other hand, it must be borne in mind that confidentiality of public records is of importance for receiving objective and reliable information, and that such confidentiality can also be necessary for the protection of third persons. Under the latter aspect, a system like the British one, which makes access to records dependent on the consent of the contributor, can in principle be considered to be compatible with the obligations under Article 8, taking into account the State's margin of appreciation. The Court considers, however, that under such a system the interests of the individual seeking access to records relating to his private and family life must be secured when a contributor to the records either is not available or improperly refuses consent. Such a system is only in conformity with the principle of proportionality if it provides that an independent authority finally decides whether access has to be granted in cases where a contributor fails to answer or withholds consent. No such procedure was available to the applicant in the present case.” 159. In the later judgment in Guerra and Others (cited above, p. 228, § 60 ), the Court ascertained whether the national authorities had taken the necessary steps to provide the applicants with information concerning risks to their health and well-being : “The Court reiterates that severe environmental pollution may affect individuals'well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely (see, mutatis mutandis, the Lόpez Ostra judgment cited above, p. 54, § 51). In the instant case the applicants waited, right up until the production of fertilisers ceased in 1994, for essential information that would have enabled them to assess the risks they and their families might run if they continued to live at Manfredonia, a town particularly exposed to danger in the event of an accident at the factory. The Court holds, therefore, that the respondent State did not fulfil its obligation to secure the applicants'right to respect for their private and family life, in breach of Article 8 of the Convention.” 160. Subsequently, in McGinley and Egan, cited above, the Court also examined whether the State had fulfilled a positive obligation to provide information to the applicant servicemen who had participated in armed forces atmospheric tests of nuclear weapons. It distinguished the judgment in Guerra and Others since, in that case, it was not disputed that the applicants were at risk from the neighbouring factory or that the State had in its possession information which would have enabled them to assess this risk and take steps to avert it, whereas Mr McGinley and Mr Egan had only demonstrated that one set of relevant records remained in the hands of the authorities (radiation level records). It went on (pp. 1363-64) : “ 100. ... the Government have asserted that there was no pressing national security reason for retaining information relating to radiation levels ... following the tests. 101. In these circumstances, given the applicants'interest in obtaining access to the material in question and the apparent absence of any countervailing public interest in retaining it, the Court considers that a positive obligation under Article 8 arose. Where a Government engages in hazardous activities, such as those in issue in the present case, which might have hidden adverse consequences on the health of those involved in such activities, respect for private and family life under Article 8 requires that an effective and accessible procedure be established which enables such persons to seek all relevant and appropriate information. 102. As regards compliance with the above positive obligation, the Court recalls its findings in relation to the complaint under Article 6 § 1, that Rule 6 of the Tribunal Rules provided a procedure which would have enabled the applicants to have requested documents relating to the MOD's assertion that they had not been dangerously exposed to radiation, and that there was no evidence before it to suggest that this procedure would not have been effective in securing disclosure of the documents sought ... However, neither of the applicants chose to avail themselves of this procedure or, according to the evidence presented to the Court, to request from the competent authorities at any other time the production of the documents in question. For these reasons the present case is different from that of Gaskin ..., where the applicant had made an application to the High Court for discovery of the records to which he sought access. 103. The Court considers that, in providing the above Rule 6 procedure, the State has fulfilled its positive obligation under Article 8 in relation to these applicants. It follows that there has been no violation of this provision.” 161. The present applicant's uncertainty, as to whether or not he had been put at risk through his participation in the tests carried out at Porton Down, could reasonably be accepted to have caused him substantial anxiety and stress ( see McGinley and Egan, p. 1363, § 99). Indeed, the clear evidence is that it did. From the onset of his medical problems in 1987, he single-mindedly pursued through various means ( detailed in paragraphs 17 - 33 above) any relevant information that could inform him about his test participation and assuage his anxiety as to the consequences. While the PAT found, relying on its expert's report, that there was no reliable evidence to suggest a causal link between the tests and the applicant's claimed medical conditions, that was not until 2004 and, in any event, the High Court has since allowed his appeal and sent the matter back to the PAT, before which the matter is pending. Moreover, as is now clear, a significant number of “relevant records” of the 1963 tests were still in existence in 1966, the date of the respondent State's declarations under Article 25 and 46 of the Convention ( see McGinley and Egan, p. 1360, § 88): the documents included with the letter of 2 December 19 9 7 from the Minister of State for Defence; those documents referred to in the letter of 3 May 2001 from Porton Down; the records submitted with the Government's observations in the present case (on 9 March 1998 and 5 April 2001); and the additional documents disclosed to the PAT on 6 July 2001, 23 August 2002, 2 and 21 October 2002 and on 18 April 2005. On the other hand, the Government have not asserted that there was any pressing reason for withholding the above-noted information although they commented on the vagaries of locating old records that had inevitably become dispersed. Reasons of “medical confidence” were not pleaded by the Government and such reasons would, in any event, be inconsistent with the dilution of the notion in the 1990 Act and the apparent decision not to raise it in the context of the 1998 Scheme and Porton Down records. Following certain revisions of their position and declassification of documents (see paragraphs 53, 55, 57, 59 and 68 above), the Government submitted that, “nothing of significance” had been withheld on national security grounds ( see paragraph 152 above). 162. In such circumstances, the Court considers that a positive obligation arose to provide an “effective and accessible procedure” enabling the applicant to have access to “all relevant and appropriate information” ( see McGinley and Egan, cited above, pp. 1363-64, § 101) which would allow him to assess any risk to which he had been exposed during his participation in the tests ( see Guerra and Others, p. 228, § 60). 163. As to compliance with this positive obligation, the Government mainly relied on the Court's conclusion in McGinley and Egan that the Rule 6 procedure before the PAT fulfilled this obligation. 164. The Court considers that that conclusion does not apply in the present case since the essential complaints of Mr McGinley and Mr Egan and the present applicant are not comparable. The search for documents by the former was inextricably bound up with their domestic applications for pensions in respect of illnesses they maintained were caused by their participation in nuclear tests. In contrast, the present applicant had made numerous attempts to obtain the relevant records (outlined in paragraphs 17 ‑ 33 above) independently of any litigation and, in particular, of a pension application. Indeed, even when he applied for a pension in 1991, he continued to seek documents in parallel with that application since the Rule 6 procedure was not, in any event, available at first instance. If the present applicant appealed to the PAT it was because he felt constrained to do so in order to make his Rule 6 request for documents following the judgment of this Court in McGinley and Egan in June 1998. 165. The Court's judgment in McGinley and Egan did not imply that a disclosure procedure linked to litigation could, as a matter of principle, fulfil the positive obligation of disclosure to an individual, such as the present applicant, who has consistently pursued such disclosure independently of any litigation. Consistently with judgments in Guerra and Others and Gaskin and as the applicant argued, it is an obligation of disclosure (of the nature summarised in paragraph 162 above) not requiring the individual to litigate to obtain it. 166. The Government also relied more generally upon the disclosure that had been made through the “medical” and “political” channels and upon the other information services and health studies ( see paragraphs 17-33 and 69-71 above). However, the Court does not consider that, either individually or collectively, these could constitute the kind of structured disclosure process envisaged by Article 8. In any event, it is evident that those processes resulted in partial disclosure only given the later disclosure of relevant records, notably during the present application and the PAT appeal. In particular, the applicant's doctor was given information in 1987 and 1989. However, the applicant did not see it until 1994 given the “medical in confidence” basis of disclosure, the information did not refer to the mustard gas tests, it was not accompanied by the underlying records and it was, in any event, incorrect as regards certain matters (see paragraphs 19 and 36 above). Having been refused disclosure of further information, the applicant was given access for the first time to original records in 1997: this was an ad hoc procedure adopted in response to his tenacious pursuit of the information (see paragraphs 1 9 -33 above) and it constituted but the first of many instalments. Moreover, none of the processes described as “ information services and health studies” ( see paragraphs 69-71 above) began until almost ten years after the applicant had commenced his search for records and, further, after he had introduced his application to the Court. As to the 1998 Scheme, the Court notes the difficulties experienced by the authorities, even in a judicial context before the PAT, in providing records pursuant to the Rule 6 order of the President of the PAT. Even taking into account only the period following the making of the Rule 6 order by the President in February 2001, the disclosure has been piecemeal (over five occasions listed in paragraph 161 above, the most recent being in April 2005), the State reviewed its position on the classification of certain material on several occasions during that period (see paragraphs 53, 55, 57, 59 and 68 above ) and, over four years after the Rule 6 order, disclosure remains incomplete (see the letter of 18 April 2005, paragraph 68 above). Indeed, the PAT described as “disquieting” the difficulties experienced by the applicant in obtaining the records produced to the PAT. In the same vein, it is also illustrative that none of the authorities dealing with the Rule 6 procedure or the present application was aware until recently of the Treasury Solicitor's letters from 1953 (see paragraph 72 above). These demonstrated difficulties in making comprehensive and structured disclosure to date undermines, in the Court's view, any suggestion that an individual going to Porton Down to review records retained there (the 1998 Scheme) could lead to the provision of all relevant and appropriate information to that person. It is undoubtedly the case that certain records (existing after 1996) were, given their age and nature, somewhat dispersed so that the location of all relevant records was, and could still be, difficult. However, it is equally the case that the absence of any obligation to disclose and inform facilitates this dispersal of records and undermines an individual's right to obtain the relevant and appropriate disclosure. Finally, the Porton Down Volunteers Medical Assessment Programme involved only 111 participants and no control group whereas 3, 000 service personnel had participated in nerve gas tests and 6, 000 in mustard gas tests, with some having been involved in both types of test. The full-scale epidemiological study did not begin until 2003 and has not yet been completed. 167. In such circumstances, the Court considers that the State has not fulfilled the positive obligation to provide an effective and accessible procedure enabling the applicant to have access to all relevant and appropriate information that would allow him to assess any risk to which he had been exposed during his participation in the tests. 168. It is not therefore necessary to examine the applicant's additional submission that the positive obligation required the completion of a “long - term follow - up study” ( see paragraph 146 above) or the applicant's alternative and secondary arguments outlined in paragraph 148 above. 169. In conclusion, there has been a violation of Article 8 of the Convention. VI. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 170. The applicant also complained about the inadequate provision of information under Article 10 of the Convention, the relevant parts of which read as follows: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. ... 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, ... for preventing the disclosure of information received in confidence ... ” 171. While the applicant acknowledged that the Court had preferred to examine such questions under Article 8 to date, he maintained that as a matter of principle the right to seek access to information was an important and inherent part of the protection of Article 10 of the Convention. The Government did not agree. 172. The Court reiterates its conclusion in Leander v. Sweden ( judgment of 26 March 1987, Series A no. 116, p. 29, § 74) and in Gaskin ( cited above, p. 21, § 52) and, more recently, confirmed in Guerra and Others ( cited above, p. 226, § 53), that the freedom to receive information “prohibits a Government from restricting a person from receiving information that others wish or may be willing to impart to him” and that that freedom “cannot be construed as imposing on a State, in circumstances such as those of the present case, positive obligations to ... disseminate information of its own motion ”. It sees no reason not to apply this established jurisprudence. 173. There has thus been no interference with the applicant's right to receive information as protected by Article 10 of the Convention. VII. APPLICATION OF ARTICLE 41 OF THE CONVENTION 174. 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 175. As regards pecuniary loss, the applicant considered that the failure to disclose information and the application to him of the section 10 certificate denied him the opportunity to bring proceedings in tort against the MOD armed with the necessary evidence to establish the relevant causal link. Access to the PAT did not assist since the pension system was not an adequate substitute for a civil claim and since the PAT was constrained by the limited evidence available to it which resulted, in turn, from the State's failure to create and properly retain records, to carry out proper short and long- term monitoring of participants and to commission follow-up work and epidemiological studies. While he did not specify the level of damages sought for this loss of opportunity, he indicated that it represented his loss of earnings due to ill-health resulting from his test participation. As to his alleged non-pecuniary loss, he claimed to have been denied access to the relevant information for a very long time. This coupled with unsubstantiated assertions by the authorities that no harm was done by the tests only served to cause him substantial anxiety, stress and uncertainty. He made considerable efforts (medical, political and judicial) to obtain the information over almost twenty years. He did not believe that the Rule 6 procedure was the answer and, in any event, he maintained that he still had not had access to all information. The finding of a violation would not adequately compensate him and he considered that it warranted a substantial award, although he did not specify a sum. 176. The Government observed, as regards both the pecuniary and non-pecuniary loss alleged, that the applicant had access, at all material times, to a pension scheme ( in substitution for a civil action), the PAT and the Rule 6 procedure. He had obtained information under Rule 6, his entitlement to a pension remained open and he would obtain a pension if he were to meet the threshold for an award. 177. The Court notes that it has not found a violation of Article 6 as regards the impugned section 10 certificate. In addition, the Court's finding of a violation was based on the applicant's right per se to information about his test participation independently of any litigation. In any event, it is not possible to speculate as to the applicant's prospects of establishing a causal link between his test participation and ill-health had he been provided with an “effective and accessible procedure” giving access to “all relevant and appropriate information”. 178. Nonetheless, the Court considers that the applicant must have suffered feelings of frustration, uncertainty and anxiety: the tests concerned substances which, in theory, were military weapons; he had been ill with chronic respiratory problems since 1987 when he began his search for information; he made substantial and determined efforts to obtain this information through various channels (medical, political and judicial) over a long period of time; disclosure has been gradual and is apparently not complete ( see paragraphs 161 and 166 above). The Court considers that this non-pecuniary loss cannot be compensated solely by the finding of violation. 179. Having regard to awards made in similar cases, the Court awards, on an equitable basis, 8, 000 euros (EUR), which sum is to be converted into pounds sterling at the date of settlement. B. Costs and expenses 180. The applicant claimed a total sum ( inclusive of value - added tax – VAT) of 100,109.67 pounds sterling (GBP ) in legal costs and expenses for the PAT proceedings and the present application, including the anticipated costs of the hearing before this Court in October 2004. In particular, he claimed GBP 86,663.84 as regards the present application, including the fees of a solicitor and a trainee solicitor (almost 100 hours work) and of three counsel (including one Queen's Counsel). The legal costs and expenses of the domestic PAT proceedings amounted to GBP 13, 445.83, including the fees of a solicitor and trainee (for approximately 40 hours work) and of two counsel (one of whom had not been involved in the present application). The relevant fee notes and vouchers were submitted detailing the costs. The applicant did not claim the costs and expenses of his appeal to the High Court from the PAT since Rule 28 of the PAT Rules provided that he was entitled to his costs once leave to appeal was granted. 181. The Government considered the claims concerning the proceedings before this Court to be excessive. They considered unnecessary the appointment of three counsel (for the present proceedings) and contended that the solicitors'fees should, in any event, have been lower. Certain items of work were vaguely described and counsels'fee rates had not been included. They challenged the necessity for the applicant's lengthy submissions before the Grand Chamber. They maintained that GBP 29,000 would be a reasonable sum in legal costs and expenses for the Convention proceedings. The Government did not comment on the costs and expenses claimed for the PAT proceedings. 182. The Court reiterates that only legal costs and expenses found to have been actually and necessarily incurred (in the case of domestic proceedings, in seeking redress for the violations of the Convention found or preventing a violation occurring ) and which are reasonable as to quantum are recoverable under Article 41 of the Convention (see, for example, Stašaitis v. Lithuania, no. 47679/99, § § 102- 03, 21 March 2002 ). 183. On the one hand, the present application was of some complexity. It required an examination in a Chamber and in the Grand Chamber including several rounds of observations and an oral hearing. It was adjourned for a number of years pending the applicant's PAT appeal. During the adjournment, the applicant kept the Court informed of progress and thereafter continued the PAT proceedings at the same time as the present application. It is reasonable to accept as necessarily incurred the PAT costs to date (excluding the High Court appeal costs which are not claimed), despite the finding under Article 8 above, given not least that those proceedings have led to disclosure of much documentation as recently as April 2005. Further costs, both in terms of the present application and the PAT proceedings, have been incurred since the date of the oral hearing, the date to which the applicant had estimated his costs and expenses. 184. On the other hand, the Court considers excessive the appointment of three counsel as well as a solicitor (and a trainee solicitor) to the present application and two counsel (together with a solicitor and trainee) to the PAT proceedings. It is not explained why one of the counsel working on the PAT appeal was not involved in the application to this Court: this would have led to some duplication of work. In addition, and as the Government pointed out, certain items of work in counsels'fee notes are not clearly explained and they have not noted their rates. Moreover, the estimated fees for the hearing before this Court (approximately GBP 37,000 including the travel, accommodation and legal fees of three counsel as well as of a solicitor) are unreasonably high. Furthermore, the applicant's claim under Article 6, which was a significant part of the application, was unsuccessful so that the costs and expenses allowed should be reduced ( see Z and Others, cited above, § 134). 185. Making its assessment on an equitable basis, the Court awards the sum of EUR 47,000 in respect of the costs and expenses of the PAT proceedings and the present application (which sum is to be converted into pounds sterling at the rate applicable on the date of settlement and is inclusive of any VAT which may be chargeable) less EUR 3,228.72 in legal aid already paid by the Council of Europe. C. Default interest 186. 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 a violation of Article 8 (right to private and family life) of the Convention, because a procedure had not been available to the applicant making it possible to obtain information about the risks related to his participation in the tests organised by the army. |
1,088 | Freedom of expression in the employment context | II. RELEVANT DOMESTIC LAW 17. Article 61 of the Constitution, as in force at the material time, provided as follows: “1. In the Republic of Hungary everyone shall have the right to freely express his opinion and to access to and to disseminate information of public interest.” Section 96 of Act no. XXII of 1992 on the Labour Code, as in force at the material time, read as follows: “(1) An employer or employee may terminate an employment relationship by summary dismissal /resignation in the event that the other party: a) wilfully or by gross negligence commits a grave violation of any substantive obligations arising from the employment relationship ... ” THE LAW I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 18. The applicant complained that his dismissal from the State television company on the ground of publishing a book including internal documents of his employer amounted to a breach of his right to freedom of expression and in particular his right to impart information and ideas to third parties. He relied on Article 10 of the Convention, which reads as follows: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” The Government contested this view. A. Admissibility 19. 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 20. The applicant submitted that his right to freedom of expression had been breached in that he had been dismissed from employment because of a publication. As a journalist and chairman of the trade union at the public television broadcaster he had had the right and obligation to inform the public about alleged censorship at the television company. He emphasised that the statements in his book had never been refuted and that he had acted in good faith, in compliance with the ethics of his profession. 21. He further submitted that no consideration had been given to his rights under the Convention by the domestic courts reviewing his dismissal. He pointed to the fact that the domestic courts had formally accepted that freedom of expression might be lawfully limited in labour relations, regardless of the nature and the circumstances of the case. 22. The Government submitted that the applicant, as an employee at the State television company, had been bound by a labour contract and in particular by a duty of confidentiality. The fact that he was the chairman of a trade union had not exempted him from complying with the obligations flowing from the employment contract. By publishing the impugned book without prior authorisation and revealing confidential information, he had breached his duties, leading to his summary – and justified – dismissal. 23. The Government further argued that the applicant had published the statements and correspondence of persons identified by name. Any disclosure of such personal data would have required prior authorisation of the persons concerned, which the applicant had failed to obtain. 24. The Government also contended that there had been no interference with the applicant ’ s freedom of expression, since his book about the presumed censorship at the State television had actually been published and its content had become accessible to anyone. The applicant contested this view. 2. The Court ’ s assessment a. Existence of an interference 25. The Court observes that the decision to dismiss the applicant from the television company was prompted by the publication of his book, without further examination of the applicant ’ s professional ability. Accordingly, the measure complained of essentially related to the exercise of freedom of expression (see Wille v. Liechtenstein [GC], no. 28396/95, § 50, ECHR 1999 ‑ VII, and Kudeshkina v. Russia, no. 29492/05, § 79, 26 February 2009). 26. The Court reiterates that the protection of Article 10 of the Convention extends to the workplace in general. It notes at this juncture that the applicant was at the service of the State-owned television company, albeit under a Labour Code statute. In this regard, the Court recalls that Article 10 of the Convention applies not only to employment relationships governed by public law, but also those under private law. In addition, in certain cases, the State has a positive obligation to protect the right to freedom of expression even in the sphere of relations between individuals (see Fuentes Bobo v. Spain, no. 39293/98, § 38, 29 February 2000). 27. The Court considers that the disciplinary measure dismissing the applicant for publishing a book containing confidential information about his employer, as endorsed by the Hungarian courts, constituted an interference with the exercise of the right protected by Article 10 of the Convention 28. An interference with the applicant ’ s rights under Article 10 § 1 will infringe the Convention if it does not meet the requirements of paragraph 2 of Article 10. It should therefore be determined whether it was “prescribed by law”, whether it pursued one or more of the legitimate aims set out in that paragraph and whether it was “necessary in a democratic society” in order to achieve those aims. b. Whether the interference was “prescribed by law” 29. The Court observes, and it is common ground between the parties, that the applicant was dismissed on the basis of section 96(1) of the Labour Code for having breached his obligations under point 10 of his labour contract. c. Whether the interference pursued a legitimate aim 30. The Court accepts that the legitimate aim pursued by the impugned measure was the prevention of the disclosure of confidential information as well as “ the protection of the reputation or rights of others ” within the meaning of Article 10 § 2. d. Whether the interference was necessary in a democratic society i. The principles established by the Court ’ s case-law 31. The central issue which falls to be determined is whether the interference was “necessary in a democratic society”. The fundamental principles in that regard are well established in the Court ’ s case-law and have been summarised as follows (see, among other authorities, Vogt v. Germany, 26 September 1995, § 52, Series A no. 323; Hertel v. Switzerland, 25 August 1998, § 46, Reports of Judgments and Decisions 1998 ‑ VI; and Steel and Morris v. the United Kingdom, no. 68416/01, § 87, ECHR 2005 ‑ II): ( α ) Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and each individual ’ s self-fulfilment. Subject to paragraph 2 of Article 10, it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb; such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society”. Freedom of expression, as enshrined in Article 10, is subject to a number of exceptions which, however, must be narrowly interpreted and the necessity for any exceptions must be convincingly established. ( β ) The adjective “necessary”, within the meaning of Article 10 § 2 implies the existence of a “pressing social need”. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with a European supervision, embracing both the law and the decisions applying it, even those given by independent courts. The Court is therefore empowered to give the final ruling on whether a “restriction” is reconcilable with freedom of expression as protected by Article 10. ( γ ) The Court ’ s task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully or in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether it is “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 10 and, moreover, that they based their decisions on an acceptable assessment of the relevant facts. 32. The Court also observes that the present case bears a certain resemblance to the cases Fuentes Bobo ( cited above) and Wojtas-Kaleta v. Poland ( no. 20436/02, 16 July 2009) in which it found violations of Article 10 in respect of journalists who had publicly criticised the public television broadcaster. Likewise, in the present case, the applicant, a journalist, wrote a book in criticism of the conduct of his supervisors and employer. Therefore this case also raises the problem of how the limits of loyalty of journalists working for such companies should be delineated and, in consequence, what restrictions can be imposed on them in public debate. In this context the Court is also mindful that employees owe to their employer a duty of loyalty, reserve and discretion (see Vogt v. Germany, 26 September 1995, § 53, Series A no. 323; and Ahmed and Others v. the United Kingdom, 2 September 1998, § 55, Reports 1998 ‑ VI). Accordingly, the measure by which the applicant was dismissed from his position for the breach of confidence is not as such incompatible with the requirements of Article 10 of the Convention. 33. For the Court, the position of the applicant in the present case – that is, him being a journalist employed by the State television company under the general labour law – might be distinguishable from that of an employee in the public sector proper signalling illegal conduct or wrongdoing in the workplace in a situation where the employee or civil servant concerned is the only person, or part of a small category of persons, aware of what is happening at work and is thus best placed to act in the public interest by alerting the employer or the public at large (see Marchenko v. Ukraine, no. 4063/04, § 46, 19 February 2009; Heinisch v. Germany, no. 28274/08, §§ 63-64, ECHR 2011 (extracts); and Bucur and Toma v. Romania, no. 40238/02, § 93, 8 January 2013). However, there is no need to decide on whether the applicant, an employee of the State television company which plays a crucial role in societal communication, falls into the same category, from the perspective of Article 10, as civil servants. This is so because the public interest attaching to the transparent editing of programs of the State television would have required in any case a domestic scrutiny of the proportionality of the impugned measure. 34. Where the right to freedom of expression of a person bound by professional confidentiality is being balanced against the right of employers to manage their staff, the relevant criteria have been laid down in the Court ’ s case-law as follows (see Guja v. Moldova [GC], no. 14277/04, §§ 74-78, ECHR 2008): (a) public interest involved in the disclosed information; (b) authenticity of the information disclosed; (c) the damage, if any, suffered by the authority as a result of the disclosure in question; (d) the motive behind the actions of the reporting employee; (e) whether, in the light of duty of discretion owed by an employee toward his or her employer, the information was made public as a last resort, following disclosure to a superior or other competent body; and ( f ) severity of the sanction imposed. 35. Moreover, in order to assess the justification of an impugned measure, it must be borne in mind that the fairness of proceedings and the procedural guarantees afforded (see, mutatis mutandis, Steel and Morris, cited above, § 95 ) are factors to be taken into account when assessing the proportionality of an interference with the freedom of expression guaranteed by Article 10. The absence of an effective judicial review of the impugned measure may also lead to a violation of Article 10 (see Saygılı and Seyman v. Turkey, no. 51041/99, §§ 24-25, 27 June 2006, and Lombardi Vallauri v. Italy, no. 39128/05, §§ 45-56, 20 October 2009). If the reasoning of the national court demonstrates a lack of sufficient engagement with the general principles of the Court under Article 10 of the Convention, the degree of margin of appreciation afforded to the authorities will necessarily be narrower. Indeed, as the Court has previously held in the context of Article 10, “the quality of ... judicial review of the necessity of the measure is of particular importance in this respect, including the operation of the relevant margin of appreciation” (see Animal Defenders International v. the United Kingdom [GC], no. 48876/08, § 108, ECHR 2013 (extracts)). ii. Application of the above principles in the present case 36. The applicant argued in his book that the changes suggested by the cultural director of the television company did not sit well with the principles of journalistic freedom. He expressed the opinion that the modifications and cuts put through by the cultural director regarding his programme constituted censorship. The introduction of the book called on readers to decide whether they perceived the published documents as pieces of evidence of censorship or as a supervisor ’ s valid instructions to his colleagues. 37. In such circumstances, and also bearing in mind the importance of the independence of public service broadcasters, the Court considers that even if the book contained information on third persons (see the Government ’ s related submission in this respect in paragraph 23), it essentially concerned a matter of public interest. It is to be observed in this context that there is no information in the case file as to any claims or complaints formulated by any third party about the impugned publication. 38. The Court notes the applicant ’ s submission that he as a journalist and chairman of the trade union had the right and obligation to make public the documents in question and to comment on matters of public interest, notwithstanding the fact that his labour contract contained a confidentiality clause. 39. The Court is of the view that the applicant ’ s combined professional and trade-union roles must be taken into consideration for the purposes of examining whether the interference complained of was necessary in a democratic society. It considers that, having regard to the role played by journalists in society and to their responsibilities to contribute to and encourage public debate, the obligation of discretion and confidentiality constraints cannot be said to apply with equal force to journalists, given that it is in the nature of their functions to impart information and ideas. Furthermore, in the particular context of the applicant ’ s case, his obligations of loyalty and restraint must be weighed against the public character of the broadcasting company he worked for (see Wojtas-Kaleta, cited above, §§ 45-47 ). 40. Given the presence of these elements in the applicant ’ s situation, the Court considers that the domestic authorities should have paid particular attention to the public interest attached to the applicant ’ s conduct. 41. As to the criterion of accuracy, it was not asserted by the employer or later established by the courts that the documents published by the applicant were not authentic or were distorted or that his comments had been devoid of factual basis. Moreover, some of the applicant ’ s statements amounted to value judgments, the truth of which is not susceptible of proof (see, for instance, Lingens v. Austria, 8 July 1986, § 46, Series A no. 103). 42. Regarding the question as to whether the publication could be considered detrimental, the Court is mindful of the Regional Court ’ s judgment referring to the potential damage to the television company ’ s reputation which the book might have caused (see paragraph 14 above). 43. Nonetheless, the issue arises as to whether there was any need to prevent the disclosure of information that was already available to the public (see Weber v. Switzerland, 22 May 1990, § 51, Series A no. 177; and Vereniging Weekblad Bluf! v. the Netherlands, 9 February 1995, § 41, Series A no. 306-A) and might already have been known to a large number of people. The Court notes that on 9 June 2003, before the publication of the applicant ’ s book, an article appeared in an online newspaper containing information about the alleged censorship (see paragraph 8 above). Thus, although the publication of the documents in the impugned book was a breach of confidentiality – an element which brings into play the notion of “duties and responsibilities” within the meaning of paragraph 2 of Article 10 of the Convention – their substance in general had already been made accessible through an online publication and was known to a number of people. 44. In so far as the motives for making the impugned documents public may be relevant, the applicant ’ s assertion is that he acted in good faith, in order to draw public attention to censorship at the State television. For the Government, this course of action was nothing more than a wilful breach of employment obligations. 45. An act motivated by a personal grievance or a personal antagonism or the expectation of personal advantage, including pecuniary gain, would not justify a particularly strong level of protection (see Kudeshkina, cited above, § 95 ). 46. In the instant case, the Court notes that the applicant ’ s account of his motives was not called into question before the domestic courts. Nor was it suggested that he had included the confidential documents in the book with any other intention than to corroborate his arguments on censorship. There was no appearance of any gratuitous personal attack, either. 47. Furthermore, for the Court, the applicant ’ s decision to make the impugned information and documents public was based on the experience that neither his complaint to the president of the television company nor the editor-in-chief ’ s letter to the board had prompted any response (see paragraphs 7 and 8 above). Thus, the Court is satisfied that the publication of the book took place only after the applicant had felt prevented from remedying the perceived interference with his journalistic work within the television company itself – that is, for want of any effective alternative channel. 48. The Court also notes that a rather severe sanction was imposed on the applicant, namely the termination of his employment with immediate effect. 49. Finally, as to the manner in which the applicant ’ s labour case was reviewed, the domestic courts found that the mere fact that the applicant had published the book was sufficient to conclude that he had acted to his employer ’ s detriment. However, they paid no heed to the applicant ’ s argument that he had been exercising his freedom of expression in the public interest, and limited their analysis to finding that he had breached his contractual obligations. Moreover, the Supreme Court ’ s judgment explicitly stated that the subject matter of the case was limited to an employment dispute and did not concern the applicant ’ s fundamental rights (see paragraph 16 above). As a result, they did not examine whether and how the subject matter of the applicant ’ s book and the context of its publication could have affected the permissible scope of restriction on his freedom of expression, although it is such an approach that, in principle, would have been compatible with the Convention standards (see Sokołowski v. Poland, no. 75955/01, § 47, 29 March 2005; and Ungváry and Irodalom Kft. v. Hungary, no. 64520/10, § 57, 3 December 2013). 50. Being mindful of the importance of the right to freedom of expression on matters of general interest, of the applicant ’ s professional obligations and responsibilities as a journalist on the one hand, and of the duties and responsibilities of employees towards their employers on the other, and having weighed the different interests involved in the case, the Court concludes that the interference with the applicant ’ s right to freedom of expression was not “necessary in a democratic society”. 51. Accordingly, there has been a violation of Article 10 of the Convention. 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. The applicant claimed 32,250 euros (EUR) in pecuniary damage. This sum comprises compensation for lost income which would have been awarded to him in case of success in the domestic proceedings. He moreover claimed EUR 10,000 in respect of non-pecuniary damage. 54. The Government contested these claims. 55. The Court considers that the applicant must have suffered some pecuniary and non-pecuniary damage as a result of his dismissal. Making its assessment on the basis of equity, it awards him EUR 5,000 under both heads combined. B. Costs and expenses 56. The applicant claimed EUR 1,440 for the costs and expenses incurred before the domestic courts. This amount corresponds to the court fees incurred on three levels of judicial instances and the legal expenses paid to the respondent. 57. The Government contested these claims. 58. 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 awards the full sum claimed in respect of the proceedings before the domestic courts incurred in an attempt to prevent the violation, that is, EUR 1,440. 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 10 (freedom of expression) of the Convention. It noted in particular that the sanction imposed on the applicant – termination of the employment with immediate effect – was rather severe. Furthermore, the Hungarian courts had found against the applicant solely on the ground that publication of the book breached his contractual obligations, without considering his argument that he was exercising his freedom of expression in the public interest. They had thus failed to examine whether and how the subject matter of the applicant’s book and the context of its publication could have affected the permissible scope of restriction on his freedom of expression. |
506 | Unavailability of widows’ allowances to widowers | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Widow's Pensions 1925-2001 15. The following history of the Widow's Pension (“WP”) is taken from Lord Hoffmann's speech in R. v. Secretary of State for Work and Pensions ex parte Hooper and Others [2005] UKHL 29, paragraphs 18-30 : “[WP was] first introduced by the Widows', Orphans'and Old Age Contributory Pension Act 1925. The Act provided a pension of 10 shillings a week to any widow whose husband had paid sufficient contributions. There was no age qualification or time limit on payment. Widows were as such entitled to support. But during the Second World War, large numbers of women worked in the armed forces or civilian employment, replacing men on active service. Public attitudes to widowhood changed. Sir William Beveridge said in his 1942 Report on Social Insurance and Allied Services ( Cmd 6404, paragraph 153) that there was no reason why a childless widow should get a pension for life. If she was able to work she should do so. He recommended that all widows should be paid a 13 week transitional allowance to help them adjust to their new circumstances but that longer term pensions should be confined to widows with dependent children. The Government did not accept this advice in full. It considered that an older widow, who had in accordance with convention stayed at home during a long marriage to look after husband and children, would often be severely disadvantaged if she was required to earn her own living. The National Insurance Act 1946 therefore not only gave effect to Beveridge's recommendations by introducing [Widowed Mother's Allowance:'WMA'] and a widow's allowance for 13 weeks after bereavement but also provided WP for widows who were over 50 at the date of the husband's death or who ceased to qualify for WMA when they were over 40. The secular trend in the position of women in employment over the next half century reinforced Beveridge's view that being a widow should not, as such, entitle one to a pension. More and more women entered the labour market. But the trend was a slow one and crude comparisons of the numbers of economically active men and women are misleading. Far more women than men worked part-time and the great majority of women were (and remain) unable to escape from the traditional low-paid activities of cooking, caring and cleaning. So the trend to equality was counteracted by political pressure from groups representing widows who claimed that, as the United Kingdom became more prosperous, benefits for widows should be increased rather than reduced. The policies pursued by successive governments were therefore not entirely consistent. The Family Allowances and National Insurance Act 1956 raised to 50 the age at which a woman could claim WP after ceasing to be entitled to WMA. On the other hand, the National Insurance (Old persons'and widows'pensions and attendance allowance) Act 1970 reduced to 40 the age at which WP would be payable (at a reduced rate), whether as a result of bereavement or the cessation of WMA. In 1985 the government published a Green Paper on Social Security Reform which pointed out (in paragraph 10.9) that the current system of benefits dated from days when far fewer married women worked: ' Today two thirds of all married women with children over school age, and over a half of widows between 40 and 60, go to work. The present pattern of benefits nonetheless provides support without regard to widows'other income, in many cases long after they have ceased to be responsible for bringing up children. The Government's view is that it is right to give greater emphasis to providing for widows of working age who have children to support, and for older widows less able to establish themselves in work.' Despite this acknowledgement of changes in social conditions, the Social Security Act 1986 made relatively modest adjustments to the system. The 26 week transitional widow's allowance was abolished and the lump sum [Widow's Payment:'WPt'] of £1,000 substituted. The age at which WP became payable, whether on bereavement or cessation of WMA, was raised to 45 and entitlement to the full rate postponed until 55. These provisions were subsequently consolidated in the 1992 Act. The 1986 changes were opposed by a strong lobby on behalf of widows. But no one suggested in the course of the Parliamentary debates that WP should be extended to men. It is true that Cruse, a non-governmental organisation for'the widowed and their children', which had taken widowers on board in 1980, said in their 1986-87 annual report: ' We ... continued to press for a widower's pension, based on his wife's national insurance contributions, and for an allowance to be paid to widowed fathers.' But this pressure does not appear to have persuaded anyone to raise the question of WP for widowers in Parliament. The first serious suggestion that widowers should in principle be paid the same benefits as widows came from the European Commission. There had been a Council Directive 79/7/EEC in 1978 on'the progressive implementation of the principle of equal treatment for men and women in matters of social security'which expressly excluded survivors'benefits. In 1987 the Commission produced a proposal for a new Directive (Com (87) 494 Final). It drew attention in an explanatory memorandum to a statement of the Court of Justice in Razzouk and Beydoun v Commission of the European Communities (Cases 75/82 and 117/82), [1984] ECR 1509, 1530, para 16 (a case concerning survivors'pensions under the Community's own Staff Regulations) that the principle of equal treatment of men and women'forms part of the fundamental rights the observance of which the court has a duty to ensure.'Article 4 of the draft Directive provided that there should be no discrimination on grounds of sex in the payment of survivorship benefits: ' and to this end: ( a) either the recognition on the same terms for widowers of entitlement to the pensions and other benefits provided for widows; ( b ) or the replacement of widows'benefits by the creation or extension of a system of individual rights open to all surviving spouses regardless of sex.' The House of Lords Select Committee on the European Communities (Sub-Committee C) held an inquiry into the proposal in 1989. Miss Joan C. Brown, a writer on social security matters, said in evidence to the Committee that there was no case for paying older widowers the same pensions as older widows. The only way to produce equality was to level down. But hasty action would cause real hardship to large numbers of older widows who had chosen many years earlier to follow the conventional path of staying home to look after husband and children: ' the effect of earlier social patterns on women still have to be worked through. This suggests the need to phase out the older widow's pension over a long period —in the order of 10-15 years. Without this, there would be a serious risk of poverty among older widows who had followed the social norms of their day and now find themselves at a severe disadvantage in a changed world as a result.' The Select Committee accepted Miss Brown's evidence and reported (Session 1988-89, 10th Report, HL Paper 51): ' In the United Kingdom ... there might be reluctance to reproduce for widowers the pension a childless widow can receive under the national insurance scheme, irrespective of her earnings, if she is aged 45 or more when her husband dies. This is in recognition of the difficulty the widow may find in re-establishing herself in the labour market —whereas a widower's earning ability would not ordinarily be prejudiced in this way. The Committee consider that, despite these difficulties, the concept of equal treatment must require that, eventually, men and women should be provided with survivors'benefits on the same terms. Employment patterns are changing and, if it becomes the norm for married couples to be dependent on the earnings of both partners for most of their working lives, it will make sense for equal survivors'benefits to be available. There is also a need to avoid putting families at a disadvantage if the mother, rather than the father, becomes the principal breadwinner. It would, however, be perverse to deprive widows of benefits they still need in the interests of sex equality. To reduce this danger, a substantial period should be allowed —at least 15 years —before Member States are obliged to equalise survivors'benefits. Community law recognises a principle of'legitimate expectation'which would support this approach.' The Government published its response on 4 April 1990 (Cm 1038). It said at para 15: ' Within the state social security system the Government do not think there is any merit in introducing a universal state insurance benefit for widowers on a par with those currently provided for widows. To extend the current provisions for widows to widowers would cost about £350 million a year. The available evidence indicates that widowers are more likely to be in full time work than widows, are more likely to have higher earnings than widows and are less likely to have dependent children. As a consequence the Government have made it clear to the Commission that the equalisation of survivors'benefits should be removed from this draft directive entirely.' In 1991 the Commission withdrew the draft directive pending further consultation with Member States and there has been no further European Union initiative on the question. ... [O] ver the next few years the question of paying WMA to widowed fathers was raised on more than one occasion (see, for example, a Private Member's Bill introduced by Mr Hartley Booth MP on 13 April 1994 ( Hansard HC Debates (6th Series) vol 241, cols 212-213) and a Written Answer by the Secretary of State for Social Security ( Hansard HC Deb (6th Series) vol 255, 1 March 1995, col 621)). No one suggested paying WP to widowers or, unsurprisingly, abolishing WP for widows. Cruse said in evidence in these proceedings that Mr Hartley Booth's decision to confine his Private Member's Bill to WMA was'tactical'but the need for such tactics suggests that there would have been little support for anything more. The abolition of WP came as part of a wider reform of survivorship and other social security benefits in the 1999 Act. It was preceded in 1998 by a Consultation Paper which drew attention to the fact that, in 1995, 7 out of 10 married women worked compared with 1 in 8 in 1946. Half of widows under 60 worked and 47% of widows now had income from occupational pension schemes. The Government took the view that widows without dependent children no longer needed long term support. The extension of WP to men was'not acceptable': it would cost another £250 million a year and would mean giving help to people who were, as a class, unlikely to need it. But the abolition of WP was strongly opposed by some members of Parliament, partly on the ground that elderly widows were still disadvantaged compared with men or younger widows and partly on the ground that WP was a contributory benefit and that it would be a breach of faith to deny it to the widows of men who had made contributions and arranged their affairs on the assumption that it would be available. An opposition amendment deferring the abolition of WP until 2020 was defeated but the Government agreed that the changes should not come into force until 9 April 2001 and that the rights of women bereaved before that date should be preserved. ” B. WP under the Social Security and Benefits Act 1992 16. Under Section 38 of the 1992 Act, a woman who had been widowed was entitled to a WP if her husband satisfied the contribution conditions set out in a Schedule to the Act; and ( i ) at the date of her husband's death she was over the age of 45 (40 for deaths occurring before 11 April 1988 ), but under the age of 65; or ( ii) she ceased to be entitled to a WMA at a time when she was over the age of 45 (40 for deaths occurring before 11 April 1988), but under the age of 65. 17. This benefit was not payable for any period after the widow remarried or in which she and a man to whom she was not married were living together as husband and wife, or for any period in which she was entitled to a WMA. C. The position from 9 April 2001 18. The Welfare Reform and Pensions Act 1999 (“the 1999 Act”) came into force on 9 April 2001. Section 54 introduced the Bereavement Payment which replaced the Widow's Payment. The same conditions applied, except that the new payment was available to both widows and widowers whose spouse died on or after 9 April 2001. Section 55 introduced the Widowed Parent's Allowance. Identical conditions applied as for Widowed Mother's Allowance, except that the new allowance was available to ( i ) widows and widowers whose spouse died on or after 9 April 2001 and who were under pensionable age (60 for women and 65 for men) at the time of the spouse's death, and (ii) widowers whose wife died before 9 April 2001, who had not remarried and were still under pensionable age on the that day. 19. Section 55 replaced WP with a Bereavement Allowance for widows and widowers over the age of 45 but under pensionable age at the spouse's death, where no dependent children existed. The deceased spouse had to have satisfied the relevant contribution conditions and died on or after 9 April 2001. The Bereavement Allowance is payable for 52 weeks from the date of bereavement, but is not payable for any period after the survivor reaches pensionable age or remarries or lives with another person as husband and wife, or for any period for which the survivor was entitled to Widowed Parent's Allowance. 20. Widows (but not widowers) whose husbands died before 9 April 2001, and who fulfilled the other conditions of entitlement, continued to be eligible for WP. D. Other survivors'benefits under the 1992 and 1999 Acts 21. For details of the relevant legislative provisions, see Hobbs, Richard, Walsh and Geen v. the United Kingdom, nos. 63684/00, 6 3475/00, 63484/00 and 63468/00, judgment of 14 November 2006, §§ 29-35 and 38-40. E. The House of Lords'judgment in Hooper and Others 22. On 5 May 2005 the House of Lords delivered a unanimous judgment (cited in paragraph 15 above), in which it found, inter alia, that the difference in treatment between men and women as regards WP from 2 October 2000 (when the Human Rights Act 1998 came into force) onwards was objectively justified and involved no breach of Convention rights. 23. Lord Hoffmann, with whom the other Law Lords agreed, observed that WP had, for reasons of administrative economy, never been means-tested, but had been paid to older widows because it was thought that, as a class, they were likely to be disadvantaged because it had been the custom for women to give up work when they got married. The same did not apply to widowers. The question was not, therefore, whether there was justification for not paying WP to men, but rather whether there was justification for not having moved faster in abolishing its payment to women. The history of WP ( set out in paragraph 15 above) demonstrated that the decision to achieve equality between men and women by levelling down survivors'benefits, subject to vested rights, was by no means easy or obvious. It was true that by 2000 the proportion of older women (50-59) who were “economically active” was 65.9% against 72.5% for men. But those figures had to be adjusted to reflect greater part-time working by women (44% as against 9%) and the concentration of women in low-paid occupations. The comparative disadvantage of women in the labour market had by no means disappeared. 24. It was permissible under Article 14 of the Convention for States to treat groups unequally in order to correct “factual inequalities” between them, and the State enjoyed a wide margin of appreciation in determining social and economic policy. Once it was accepted that older widows were historically an economically disadvantaged class which merited special treatment but were gradually becoming less disadvantaged, the question of the precise moment at which such special treatment was no longer justified was a matter of legislative judgment. THE LAW I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 8 OF THE CONVENTION AND/OR ARTICLE 1 OF PROTOCOL No. 1 25. Article 14 of the Convention provides: “The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” Article 8 of the Convention provides: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 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. Widow's Pension 1. The parties'arguments (a) The applicants 26. The applicants argued that their complaints fell within the ambit of both Article 8 and Article 1 of Protocol No. 1, and that Article 14 applied since they had been treated less favourably than women in an analogous situation. The difference in treatment, moreover, lacked objective and reasonable justification. 27. The Court had repeatedly applied a strict test, requiring very weighty reasons to justify sexual discrimination, even in cases concerning inequalities in a welfare system and thus involving issues of social and economic strategy (see, for example, Van Raalte v. the Netherlands, judgment of 21 February 1997, Reports of Judgments and Decisions 1997-I; Wessels-Bergervoet v. the Netherlands, no. 34462/97, ECHR 2002-IV; Willis v. the United Kingdom, no. 36042/97, ECHR 2002-IV). It would be retrograde and would seriously weaken the protection given to the fundamental principle of equality of treatment between the sexes were the Court now to adopt an approach allowing a broad margin of appreciation to States which maintain sex discrimination in the operation of their social security systems, and the House of Lords in Hooper had been wrong to allow such a broad margin (see paragraphs 22 -2 4 above). 28. Even where the difference in treatment pursued the aim of positive discrimination, it would still be necessary for the State to show that the discriminatory means were reasonably necessary and proportionate to the aim pursued. The existence of “factual inequalities” between the sexes, even if proved, did not without more justify the blanket and unqualified discrimination at issue, where every widower was excluded from entitlement to the pension, and every widow who met the qualifying conditions was entitled, regardless of the individual's financial circumstances. It was fundamental to the principle of equal treatment that every individual was entitled to respect as an individual, and should not be treated as a “statistical unit” on the basis of a personal characteristic, such as race or sex. 29. The justifications for the inequality found by the Grand Chamber to apply in Stec did not apply in the present case, since, despite the fact that there was now no significant factual difference between the working lives of men and women, the 1998 Act preserved the discriminatory treatment of widowers bereaved before 1 April 2001. Moreover, the overwhelming majority of Contracting States provided social security benefits to bereaved spouses without sex discrimination, and did so at the time the applications were lodged. 30. It was accepted that Mr Runkee, who was in receipt of means-tested social security benefits, would not, in his current financial circumstances, have received more money had he been entitled to WP (see paragraph 10 above). However, if his circumstances were to improve and his entitlement to means-tested benefits cease, he would be less well-off than a woman in his position, who would retain the right to WP. (b) The Government 31. The Government asked the Court to follow the House of Lords in Hooper and Others and its own reasoning in Stec and Others v. the United Kingdom [GC], nos. 65731/01 and 65900/01, ECHR 2006- ..., to find that the difference in treatment between men and women as regards WP was reasonably and objectively justified. 32. They also pointed out that a woman receiving the Income Support and other benefits paid to Mr Runkee would not have been entitled to WP. 2. The Court's assessment 33. The Court considers that the applicants'complaints about the non-payment to them of WP fall within the scope of Article 1 of Protocol No. 1 (see Stec and Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01, § 54, ECHR 2006 - ... ). Since Article 14 therefore applies, it is not necessary to decide whether the complaints also raise an issue under Article 14 taken in conjunction with Article 8 (see also Willis v. the United Kingdom, § 53, ECHR 2002-IV). 34. The Court recalls that Article 1 of Protocol No. 1 does not include 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 State does decide to create a benefits or pension scheme, it must do so in a manner which is compatible with Article 14 of the Convention (see the Stec and Others decision, cited above, §§ 54-55). 35. 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. A difference of 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 a different treatment ( see the Stec and Others judgment, cited above, § 51). 36. The scope of this margin will vary according to the circumstances, the subject-matter and the background. 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. On the other hand, a wide margin is usually allowed 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” ( op. cit., § 52 ). 37. The Court notes that the history of WP, as recounted by Lord Hoffmann in the Hooper and Others judgment (see paragraph 15 above), is not disputed by the parties to the instant case. The benefit was first introduced in 1925, in recognition of the fact that older widows, as a group, faced financial hardship and inequality because of the married woman's traditional role of caring for husband and family in the home rather than earning money in the workplace. Despite the increase in women entering the workforce over the next sixty years, in 1985, when the Government proposed reforms to the social security system, it was still considered necessary by Parliament to provide support to older widows, only half of whom were in paid employment of any kind. It was not until 1998 that the Government, in a Consultation Paper, proposed the abolition of WP in view of the increasing numbers of women in employment or receiving income from an occupational pension scheme. Even then, the proposal was strongly opposed by some members of Parliament, partly on the ground that elderly widows were still disadvantaged compared with men or younger widows, and partly on the ground that WP was a contributory benefit and that it would be “a breach of faith” to deny it to widows of men who had made contributions and arranged their affairs on the assumption that it would be available. In response to these views, the draft legislation was amended to preserve the rights of women widowed before 9 April 2001 (see paragraph 20 above). 38. It does not appear that at any stage evidence was presented to the Government or Parliament showing that older widowers without dependent children, as a group, were similarly disadvantaged and in need of special financial help, nor has any such evidence been presented to the Court. 39. Since WP was not means-tested, it is no doubt true, as the applicants contend, that the pension has been paid to certain widows who were less in need than individual widowers who were denied it. However, means-testing can be uneconomical, and any welfare system, to be workable, may have to use broad categorisations to distinguish between different groups in need (see, mutatis mutandis, Lindsay v. the United Kingdom, no. 11098/84, Commission decision of 11 November 1986, Decisions and Reports 49, p. 181). 40. At its origin, therefore, and until its abolition in respect of women whose spouses died after 9 April 2001, WP was intended to correct “factual inequalities” between older widows, as a group, and the rest of the population. The Court considers that, in the light of all the evidence presented to it, this difference in treatment was reasonably and objectively justified (cf. Willis v. the United Kingdom, ECHR 2002-IV, where the benefits in question were designed to ease the financial hardship faced by a spouse in the immediate aftermath of bereavement and to assist the surviving spouse bringing up dependent children alone). 41. Given the slowly evolving nature of the change in women's working lives and the impossibility of pinpointing a precise date at which older widows as a class were no longer in need of extra help – a topic debated by Parliament on several occasions during the 1980s and 1990s, whenever reform was proposed – the Court does not consider that the United Kingdom can be criticised for not having abolished WP earlier (see, mutatis mutandis, the Stec judgment, cited above, § 64). Moreover, since it was decided to bring about equality through “levelling down”, it was not unreasonable of the legislature to decide to introduce the reform slowly, by preserving the rights of women widowed before 9 April 2001 ( ibid., § 65). 42. It follows that there has been no violation of Article 14 taken in conjunction with Article 1 of Protocol No. 1 in respect of the non-payment to the applicants of Widow's Pension or equivalent. 43. In the light of this conclusion, it is not necessary for the Court to determine whether or not, given the sums he receives in means-tested benefits, Mr Runkee can claim to be directly affected by the non-payment of WP (but see Bland v. the United Kingdom (dec.), no. 52301/99, 19 February 2002). B. Widow's Payment 44. Mr Runkee and Mr White complained in addition about the non-payment to them of Widow's Payment. 45. The Court has already held that the non-payment to a widower of Widow's Payment breaches Article 1 of Protocol No. 1 taken in conjunction with Article 14 of the Convention (see Willis, cited above, §§ 37-43 ). The Government have not sought to argue that the difference in treatment between men and women as regards entitlement to this one-off, lump sum payment intended to assist with additional expenses in the immediate aftermath of the spouse's death, was based on any “objective and reasonable justification”, and the Court sees no reason to distinguish the present applications from Willis. 46. Again, it is not, therefore, necessary to consider whether any issue also arises under Article 14 taken in conjunction with Article 8 ( op. cit ., § 53 ). 47. In conclusion, there has been a violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 48. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Pecuniary damage 49. In respect of pecuniary damage Mr Runkee claimed the following amounts in pounds sterling (GBP): ( i ) GBP 1,000 for Widow's Payment; (ii) simple interest at 8%, based on the current statutory rate of interest applicable in the United Kingdom, on arrears of all widow's benefits found owing to him from 1 5 March 1998 until the date of judgment; Mr White claimed as follows: ( i ) GBP 1,000 for Widow's Payment; (ii) GBP 12,167.17 for WP from 16 March 1999 to July 2005, and continuing; (iii) simple interest at 8%, based on the current statutory rate of interest applicable in the United Kingdom, on arrears of all widow's benefits found owing to him from 8 March 1999 until the date of judgment. 50. The Government accepted that they should pay GBP 1,000 to each applicant in respect of Widow's Payment, but rejected Mr White's claim for WP. They submitted that, as a matter of domestic practice, the Department of Work and Pensions applied an interest rate based on the yearly Average Retail Shares and Deposits rate supplied by the Building Societies Commission when, exceptionally, a welfare clamant had lost the use of a sum of money as a result of a departmental error. These rates varied from 4.881%, being the highest, in 1998–1999 and 2.691%, being the lowest, in 2003-2004. The Government calculated that Mr Runkee should be awarded interest of GBP 266.15 and Mr White should receive GBP 209.51, to cover the period between the refusal of each of their claims and the Government's Observations of 26 July 2005, continuing at the rate of GBP 0.09 per day until the date of judgment or payment, whichever was sooner. 51. The Court, which has found violations in respect of the denial of Widow's Payment, but no violation because of the lack of WP, awards each applicant the principal sum of GBP 1,000. 52. In addition, interest can be claimed from the dates on which each recoverable element of past pecuniary damage accrued (see Willis, § 69). In the present cases, since under national law at the relevant time a widow was not automatically paid the benefit, but had to claim it and to wait for the Benefits Agency to process her claim, the Court takes as the starting point for interest the date of the Benefit's Agency's letter to each applicant informing him that the claim had been refused. An award of pecuniary damages under Article 41 of the Convention is intended to put the applicant, as far as possible, in the position he would have enjoyed had the breach not occurred (see, mutatis mutandis, Kingsley v. the United Kingdom [GC], no. 35605/97, § 40, ECHR 2002-IV). The interest rate applied, which is intended to compensate for loss of value of the award over time, should therefore reflect national economic conditions, such as levels of inflation and rates of interest available to investors nationally during the relevant period (see, for example, Akkuş v. Turkey, judgment of 9 July 1997, Reports 1997-IV, § 35; Romanchenko v. Ukraine, no. 5596/03, 22 November 2005, § 30, unpublished; Prodan v. Moldova, no. 49806/99, § 73, ECHR 2004-III (extracts)). In the light of these considerations, the Court considers that the rate proposed by the Government is the more realistic. 53. It therefore awards EUR 2,0 25 to Mr Runkee and EUR 1,8 70 to Mr White in respect of pecuniary damage. B. Non-pecuniary damage 54. The applicants did not claim non pecuniary-damage, and the Court does not award any. C. Costs and expenses 55. The applicants jointly claimed GBP 21,237.63 in respect of costs and expenses, inclusive of value added tax (“VAT”). 56. The Government submitted that it could not be shown that such costs had indeed been incurred and therefore that the claim should be dismissed in its entirety. They noted that the applicant's legal representatives were a campaigning non-governmental organisation, and that it was unlikely that the applicants would be made to pay such high fees. In any case, they submitted that the sums put forward were excessive and unreasonable. Given that the matters at issue had been extensively aired in domestic proceedings, it was doubtful whether so many hours had been needed to prepare the case and whether it had been necessary to instruct a QC for the purposes of these proceedings. 57. According to its settled case-law, the Court will award costs and expenses in so far as these relate to the violation found and to the extent to which they have been actually and necessarily incurred and are reasonable as to quantum (see, among other authorities, Schouten and Meldrum v. the Netherlands, judgment of 9 December 1994, Series A no. 304, pp. 28-29, § 78 and Lorsé and Others v. the Netherlands, no. 52750/99, § 103, 4 February 2003). Taking into account all the circumstances, in particular that it has found no violation as regards WP, and that the issues concerning Widow's Payment were established in Willis and were not contested by the Government, it awards the applicants jointly EUR 2 ,000 for legal costs and expenses, in addition to any VAT that may be payable. D. Default interest 58. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank to which should be added three percentage points. | The Court observed that Widow’s Pension, at its origin and until its abolition on 9 April 2001 (except for women whose spouses had died before that date), was intended to correct inequality between older widows, as a group, and the rest of the population. It considered that difference to have been reasonably and objectively justified. Given the slowly evolving nature of the change in women’s working lives and the impossibility of pinpointing a precise date at which older widows as a class had no longer been in need of help, the Court did not consider that the United Kingdom could be criticised either for not having abolished the pension earlier. It followed 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 in connection with non-entitlement to a Widow’s Pension. However, as in similar cases raising the same issue under the Convention (see above, Willis v. the United Kingdom), the Court decided that there had been a violation of Article 14 taken in conjunction with Article 1 of Protocol No. 1 concerning non-entitlement to a Widow’s Payment. |
69 | Filiation | II. RELEVANT DOMESTIC LAW A. The action for disavowal brought by the husband 36. Before the 1993 amendments, the relevant Articles of the Maltese Civil Code read as follows: Article 67 “A child conceived in wedlock is held to be the child of the mother ’ s husband. ” Article 70 “The husband can repudiate a child conceived in wedlock (a) if he proves that during the time from the three hundredth day to the one - hundred - and - eightieth day before the birth of the child, he was in the physical impossibility of cohabiting with his wife on account of his being away from her, or some other accident; or (b) if he proves that during the said time he was legally separated from his wife ...” Article 72 § 1 “The husband may not repudiate a child on the ground of adultery, except where the birth shall have been concealed from him, in which case he shall be allowed to prove, even in the action for disavowal, both the adultery and the concealment, as well as all other circumstances tending to show that he is not the father of the child ...” Article 73 “Where it is competent to the husband to bring an action to disown a child, he must bring such action (a) within three months from the day of the birth, if he was then in Malta; (b) within three months of his return to Malta, if he was absent at the time of the birth; (c) within three months of the discovery of the fraud, if the birth was concealed from him ...” 37. From 1 December 1993 (see Act XXI of 1993) a number of amendments were made to the Civil Code. In particular, to the cases in which the husband may repudiate a child conceived in wedlock was added the following (Article 70 § 1 (d) of the Civil Code): “if he proves that during the ... time [from the three hundredth day to the one hundred and eightieth day before the birth of the child] the wife had committed adultery or that she had concealed the pregnancy and the birth of the child, and further produces evidence of any other fact (which may also be genetic and scientific tests and data) that tends to exclude such paternity. ” 38. Moreover, the periods set down in Article 73 of the Civil Code were raised to six months. B. Impeachment of the legitimacy of a child by other persons 39. By Article 77 of the Civil Code, the legitimacy of a child born in wedlock may be impeached by any interested person if he or she proves that, during the time from the three hundredth day to the one hundred and eightieth day before the birth of the child, it was physically impossible for the husband to have been cohabiting with his wife. This action is not subject to any time-limit. 40. According to the case-law of the domestic courts, a child has the right to challenge his or her paternity without restrictions when the status attributed by the birth certificate conflicts with the factual reality (see the judgment of the Court of Appeal of 14 January 1952 in the case of Antonio Scerri Gauci v. Dr G. Scicluna ). C. The inheritance and maintenance rights of legitimate children 41. By Articles 616 and 620 of the Civil Code, the applicant ’ s daughter is entitled, as a legitimate descendant, to inherit at least one - third of the applicant ’ s estate, which is due in full ownership and cannot be encumbered by any burden or condition. As a consequence of the amendments introduced in the Civil Code by Act XVIII of 2004, which entered into force on 1 March 2005, if the applicant dies without having made a will or if his will is declared invalid for any reason, Y, as his only child, will be entitled to his entire estate. 42. Until the child ’ reached the age of majority, the applicant was obliged to provide maintenance for his daughter. Should the latter in future become unable to maintain herself, alone or with the help of her husband and children, the applicant would once again become liable to the obligation of maintenance. THE LAW I. THE GOVERNMENT ’ S PRELIMINARY OBJECTIONS 43. In their observations of 29 March 2005 on the merits the Government submitted that the application was out of time, that the applicant ’ s complaints under Articles 6 and 14 of the Convention had not been properly brought before the domestic courts, that the applicant had failed to adduce evidence showing his interest in the case and that he could not claim to be a “victim”, within the meaning of Article 34 of the Convention, of the facts complained of. 44. The Government alleged, in particular, that the applicant should have lodged his application within six months from 30 April 1987, the date of the entry into force of the European Convention Act. Moreover, the applicant had carried out acts which were incompatible with the wish to disavow Y. He had acknowledged that he was the father of the child born of his wife and had agreed to have access rights and to pay his former wife a monthly sum “for their common daughter”. 45. The applicant challenged the Government ’ s arguments. He alleged that the situation complained of was a continuing one, that the application had been lodged within six months from the date of the delivery of the final domestic decision, that he had raised all his complaints in substance before the domestic courts and that by reason of a legal presumption the authorities had been obliged to enter his name on Y ’ s birth certificate. Furthermore, he considered it “surprising” that these objections had not been raised by the Government in their main submissions on the admissibility and merits of the case. 46. The Court reiterates that, in accordance with Rule 55 of the Rules of Court, any plea of inadmissibility must, in so far as its character and the circumstances permit, be raised by the respondent Contracting Party in its written or oral observations on the admissibility of the application submitted under Rule 51 or 54, as the case may be (see K. and T. v. Finland [GC], no. 25702/94, § 145, ECHR 2001-VII, and N.C. v. Italy [GC], no. 24952/94, § 44, ECHR 2002-X ). In the present case, in their written observations at the admissibility stage the Government objected that the applicant had lodged his constitutional application more than six months after the adoption of the 1993 amendments and that he had failed to bring an action to determine the paternity of Y. In its decision of 9 December 2004 on admissibility the Court held that the final decision, within the meaning of Article 35 § 1 of the Convention, was the Constitutional Court ’ s judgment of 15 January 2002. It therefore considered that the application could not be rejected as being out of time. It moreover held that the accessibility and effectiveness of an action to determine paternity was linked to the substance of the applicant ’ s complaint under Article 6 § 1 of the Convention. 47. The Court notes that the pleas of inadmissibility put forward in the observations of 29 March 2005 on the merits were not made by the Government in their written statements before the adoption of the decision of 9 December 2004. These new submissions referred to events that had occurred before the application was lodged with the Court. There are no exceptional circumstances which would have absolved the Government from the obligation to raise all their preliminary objections before the Court ’ s decision as to the admissibility of the application (see Prokopovich v. Russia, no. 58255/00, § 29, 18 November 2004 ). 48. Consequently, the Government are estopped from raising the preliminary objections set out in their observations of 29 March 2005 at the present stage of the proceedings. The Government ’ s objections must therefore be dismissed. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 49. The applicant submitted that he had not been able to have his action for disavowal of paternity examined by a domestic tribunal. He relied on Article 6 § 1 of the Convention, which, in so far as relevant, provides : “1. In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing ... by [a] ... tribunal ...” A. The parties ’ submissions 1. The Government 50. The Government first submitted that Article 6 was not applicable to the facts of the present case. They alleged that this provision only covered disputes over rights which existed at domestic level. However, the applicant, who had not been separated from his wife and had known about the birth of Y, did not have any right to disavow his paternity of the child. The Government referred, on this point, to the cases of Nylund v. Finland ( (dec.), no. 27110/95, ECHR 1999 -VI ) and Yildirim v. Austria ( (dec.), no. 34308/96, 19 October 1999 ). 51. The Government furthermore observed that the applicant had never filed any case in Malta to determine the paternity of Y. He could not therefore claim that he had been denied access to a court in respect of such an action. The applicant had merely lodged a constitutional application on 1 November 1996, more than three years after the enactment of the 1993 amendments and more than six months after the date on which Y had agreed to undergo the DNA test. 52. The Government noted that the “concealment of birth” requirement was a measure that favoured legitimacy and the stability of the family and maintained a proper balance between various rights in cases such as the present one in which the husband chose to continue cohabitating and having relations with the wife despite his knowledge that the wife was having other relationships. In such circumstances, it was proportionate to provide that the husband should accept children whom he might not have fathered as his own. In the Government ’ s view, the effects of the concealment requirement were very similar to those of the “doctrine of acknowledgment” under Danish law, as examined by the Court in the case of Rasmussen v. Denmark ( cited above ). 53. Under Maltese law, adultery was a ground for separation, which could have been proved by any means. Had the applicant sought a separation from his wife, he could have done so at any time, even after the birth of Y. In the event of refusal to undergo blood tests to determine paternity, the domestic court would have taken this factor into account and considered it to be an indication of adultery. However, the applicant had chosen a completely different course of action: he had acknowledged the child and signed a contract of consensual separation with X, in which adultery was not mentioned. 54. Moreover, the concealment requirement was not relevant in the applicant ’ s case: even if such a requirement was not provided for by law, an action for disavowal would have had little prospect of success, as the applicant did not have any proof of his wife ’ s adultery or – before the DNA test – of the fact that Y had not been fathered by him. Consequently, the applicant was affected only by the fact that the law fixed a time-limit for bringing an action to deny paternity and required proof of adultery before admitting scientific evidence. 55. The Government emphasised that in the domestic proceedings the applicant had failed to produce the DNA test or any evidence of X ’ s adultery. In the absence of any proof of the factual basis of his allegations, he could not be considered a victim of the facts complained of. 56. In any case, there were good reasons for establishing a legal presumption that a child born or conceived in wedlock was the offspring of the husband, for requiring certain preconditions before admitting evidence in rebuttal and for subjecting an action for disavowal to time-limits. 57. In relation to the latter point, the Government observed that in the case of Rasmussen v. Denmark ( cited above ) the Court had accepted such time-limits, which were provided for by practically all European countries ’ legislation on the matter, in order to protect the children ’ s right to legal certainty as to their status. 58. Furthermore, it should be taken into account that when Y was born, DNA testing had not been available. The only available test at the time had been the ABO blood grouping test, which could in some cases definitely rule out paternity, but left the matter open in most cases. It would be unreasonable to reopen settled issues of paternity every time a new scientific test was developed. 59. In the Government ’ s opinion, the three - month limitation period – which had recently been extended to six months – was not unreasonably short. In fact, the law took into account the fact that both infidelity and reconciliation after adultery were not uncommon. It was therefore wise to rule out the possibility of an action for disavowal being brought at any time when the spouses might have had a fight. In order to avoid “conditional reconciliations”, Maltese law had chosen to give to the husband a limited time to decide whether to forgive his wife and forget his doubts as to the paternity of his children. 60. Finally, as jealousy was a recurring theme in life, the Maltese legislator had protected wives and their children from the antics of jealous husbands or fathers. In particular, before 1993 the husband had been required to prove both the adultery and the concealment of birth before adducing other evidence (including scientific tests ) showing that a child born in wedlock was not his. After 1993, he had been required to prove either adultery or concealment in order to be allowed to produce other evidence. The more rigid requirements before 1993 had been attributable to the fact that scientific tests at that time had been less reliable. 61. In view of the foregoing, the Government concluded that the preconditions for bringing an action for disavowal were necessary and acceptable limitations on the right of access to a tribunal. They referred to the case of Mikulić v. Croatia (no. 53176/99, ECHR 2002-I ), in which the Court had concluded that leaving a child born on 25 November 1996 in a state of prolonged uncertainty as to her personal identity constituted a failure to secure her right to respect for her private life. 2. The applicant 62. In the applicant ’ s submission, the concealment requirement and the limitation period under the relevant provisions of the Civil Code constituted an unjustified and disproportionate interference with his right of access to a court. 63. He observed that he had brought proceedings before the Civil Court, seeking a declaration that those legal limitations were contrary to Articles 6, 8 and 14 of the Convention. He had also sought a declaration that he had a right to proceed with an action for disavowal of paternity notwithstanding the limits laid down in the Civil Code. 64. As to the Government ’ s argument that he could not claim to be the victim of the alleged violations as no evidence of the wife ’ s adultery or of the DNA test had been adduced, the applicant noted that his complaint in Strasbourg concerned the preconditions for bringing an action for denial of paternity in the domestic legal system. He therefore submitted that for the purposes of the present application there was no need for the Court to consider evidence of paternity or adultery. 65. The applicant observed that the Government had acknowledged, in substance, that the six - month limitation period for bringing an action for disavowal and the concealment requirement were prima facie interferences with his right to access to court. However, the Government had failed to provide adequate justification satisfying the test of proportionality under Article 6 of the Convention. 66. In the first place, the Government had not explained why an absolute six - month requirement, allowing for no exceptions, was needed. After the 1993 amendments, it was that time-limit which had prevented the applicant, who was able to comply with the substantive requirements of an action for disavowal, from bringing his case before a court. 67. The applicant submitted that in the case of Mikulić v. Croatia, cited by the Government, the Court had emphasised the importance, for a child, of the elimination of uncertainty as to the identity of her natural father. It was, however, similarly important for the applicant that the erroneous legal presumption that he was Y ’ s father should be eliminated. 68. The delay in challenging paternity had not been due to the applicant ’ s lack of action, but to the operation of the concealment requirement, which until 1993, would have been an obstacle to any action for disavowal. When the law had been amended and the requirement in question was removed, the inflexible six-month time-limit had prevented the applicant from instituting court proceedings. Against this background, the fact that he had waited until 1 November 1996 to lodge his constitutional application was irrelevant. 69. The applicant considered that the reasons advanced by the Government in order to justify the concealment requirement were not convincing. It had not been explained, in particular, why before 1993 it had been necessary to prove not only the wife ’ s adultery but also the concealment of the birth. This requirement had prevented a husband who had evidence of his wife ’ s adultery from instituting proceedings to deny paternity where there was still common marital life or where the wife had decided to reveal the birth. This rendered an action for disavowal practically impossible in many cases and overlooked the role played in children ’ s life by the biological father. Nor had the Government explained why proof of adultery, where properly established, was not sufficient to protect wives and children from groundless allegations. Furthermore, there was no valid reason why the Maltese courts did not have the power to compel the parties to undergo blood tests to establish paternity. It was also to be noted that the power to invite the parties to undergo such tests and to draw inferences from any refusal had been introduced only with the 1993 amendments. It was therefore a course of action which had never been open to the applicant. 70. The applicant also submitted that his case was distinguishable from those of Nylund v. Finland and Yildirim v. Austria, cited by the Government in support of their claim that Article 6 was not applicable. Unlike Mr Nylund, the applicant would have had, under domestic law, a right to disavow his paternity of the child had the concealment requirement and the six-month time-limit not existed. As to Mr Yildirim, the latter had had the possibility, not impaired by any concealment requirement, of bringing an action to deny paternity within one year from the birth of his child, but had omitted to do so. B. The Court ’ s assessment 1. Applicability of Article 6 § 1 of the Convention 71. The Court notes that, according to its case-law, Article 6 § 1 secures the “right to a court”, of which the right of access, that is the right to institute proceedings before courts in civil matters, constitutes one aspect only (see Osman v. the United Kingdom, judgment of 28 October 1998, Reports of Judgments and Decisions 1998-VIII, p. 3166, § 136, and Cordova v. Italy ( no. 1), no. 40877/98, § 48, ECHR 2003-I ). This right extends only to disputes (“ contestations ”) over “civil rights and obligations” which can be said, at least on arguable grounds, to be recognised under domestic law (see, among other authorities, James and Others v. the United Kingdom, judgment of 21 February 1986, Series A no. 98, pp. 46-47, § 81, and Powell and Rayner v. the United Kingdom, judgment of 21 February 1990, Series A no. 172, p. 16, § 36). The dispute must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise. The outcome of the proceedings must be directly decisive for the right in question, mere tenuous connections or remote consequences not being sufficient to bring Article 6 § 1 into play (see, for instance, Werner v. Austria, judgment of 24 November 1997, Reports 1997-VII, p. 2507, § 34). 72. In the present case, the applicant wished to bring an action for disavowal with regard to Y, his wife ’ s daughter. Under the relevant domestic provisions, a husband could repudiate a child conceived in wedlock under certain circumstances, which were listed in Articles 70 and 72 of the Maltese Civil Code. According to the latter provision, an action for disavowal was admissible if the husband could prove both the adultery of his wife and the concealment of the birth, as well as any other circumstances tending to show that he was not the father of the child (see paragraph 36 above). 73. It is not contested that the birth of Y was not concealed from the applicant. However, the relevant Maltese law was amended in 1993. Under the new rules ( Article 70 § 1 (d) of the Civil Code), evidence of adultery and of any other fact tending to rule out paternity was sufficient to bring an action for disavowal (see paragraph 37 above). 74. In the light of the above, the Court considers not only that the domestic legal system allowed a husband to deny paternity of the offspring of his wife, but also that after the 1993 amendments a person in the applicant ’ s situation was, in principle, capable of bringing such an action with reasonable prospects of success. In the Court ’ s view, the fact that a time-limit precluded the applicant from benefiting from the 1993 amendments did not impair the actual existence of the right in the domestic legal system. Such a time-limit was only a procedural precondition for having access to the domestic courts. 75. The present case is therefore distinguishable from those of Nylund (cited above), in which the Court found that the domestic law did not provide for any “right to have mere biological paternity examined by scientific methods ”, and Yildirim (cited above), in which the domestic law did not confer on a husband a right to have an action contesting legitimacy brought by the public prosecutor. 76. In the Court ’ s view, having regard to the scientific evidence obtained in Switzerland (see paragraph 13 above), it cannot be said that the applicant ’ s allegations that he was not the biological father of Y were manifestly devoid of substance. Under these circumstances, the Court considers that the right claimed by the applicant to deny paternity was at least arguable and that the dispute that he wished to bring before the domestic courts, which was directly decisive for this right, was genuine and serious. Finally, the Court reiterates that an action contesting paternity is a matter of family law; on that account alone, it is “civil” in character (see Rasmussen, cited above, pp. 12-13, § 32). 77. It follows that Article 6 of the Convention applies to the facts of the present case. It remains to be ascertained whether there was an interference with the applicant ’ s right to bring an action for disavowal before the domestic courts. Whether there was an interference with the applicant ’ s right of access to a court 78. The Court notes that at the time of Y ’ s birth, any action which the applicant could have brought in order to deny paternity would have had little prospect of success, as he would not have been able to prove one of the elements required by former Article 72 § 1 of the Civil Code, namely that the birth of the child had been concealed from him. After the 1993 amendments, when, as noted above, the concealment requirement became only one of the alternative preconditions for bringing such an action, the applicant was time-barred from raising his claim before a court. In fact, in accordance with Article 73(a) of the Civil Code, a husband wishing to disavow a child had to bring his judicial claim within six months from the date of the birth (see paragraphs 36 and 38 above). As Y was born on 4 July 1967, by 1993 this period had expired. 79. It is true that the applicant was able to lodge an application with the Civil Court, seeking a declaration that notwithstanding the provisions of the Civil Code, he had a right to proceed with an action for disavowal of paternity (see paragraphs 14-19). 80. However, it is to be recalled that the Civil Court ’ s decision in his favour was set aside by the Constitutional Court (see paragraphs 20-27 above), and that a degree of access to a court limited to the right to ask a preliminary question cannot be considered sufficient to secure the applicant ’ s “right to a court”, having regard to the rule of law in a democratic society (see Cordova, cited above, § 52, and, mutatis mutandis, Waite and Kennedy v. Germany [GC], no. 26083/94, § 58, ECHR 1999-I). In this connection, it should be borne in mind that, in order for the right of access to be effective, an individual must have a clear and practical opportunity to challenge an act interfering with his rights (see De Jorio v. Italy, no. 73936/01, § 45, 3 June 2004, and Bellet v. France, judgment of 4 December 1995, Series A no. 333-B, p. 42, § 36). In the present case, as a result of the wording of the relevant provisions of the Civil Code coupled with the Constitutional Court ’ s refusal to grant the applicant leave to bring an action for disavowal, Mr Mizzi was deprived of the possibility of obtaining a judicial determination of his claim that he was not Y ’ s biological father. 81. In these circumstances, the Court considers that there has been an interference with the applicant ’ s right of access to a court. 82. This right is not absolute, but may be subject to implied limitations. Nonetheless, such limitations must not restrict the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, they will not be compatible with Article 6 § 1 if they do not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved (see, among many other authorities, Cordova, cited above, § 54; Khalfaoui v. France, no. 34791/97, §§ 35-36, ECHR 1999-IX; and Papon v. France, no. 54210/00, § 90, ECHR 2002-VII; see also a recapitulation of the relevant principles in Fayed v. the United Kingdom, judgment of 21 September 1994, Series A no. 294-B, pp. 49-50, § 65). 3. Aim of the interference 83. The Court reiterates that the rules on time-limits for bringing judicial claims are undoubtedly designed to ensure the proper administration of justice and compliance with, in particular, the principle of legal certainty ( see Pérez de Rada Cavanilles v. Spain, judgment of 28 October 1998, Reports 1998-VIII, p. 3255, § 45, and Miragall Escolano and Others v. Spain, no. 38366/97, § 33, CEDH 2000-I ). Furthermore, they may protect the interests of the child, who has a right to have his or her uncertainty as to his or her personal identity eliminated without unnecessary delay (see Rasmussen, cited above, p. 15, § 41, and Mikulić, cited above, § 65 ). 84. The aim pursued by the concealment requirement is less apparent. However, the Court is prepared to accept as a starting - point for its analysis that it might have served interests similar to those protected by the statutory time-limit. 85. It remains to be determined whether the consequences for the applicant were proportionate to the legitimate aims pursued. 4. Proportionality of the interference 86. The Court observes that it must assess the contested interference with the right of access to a court in the light of the particular circumstances of the case (see Waite and Kennedy, cited above, § 64 ). It reiterates in this connection that its task is not 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, mutatis mutandis, Padovani v. Italy, judgment of 26 February 1993, Series A no. 257-B, p. 20, § 24 ). In particular, it is not the Court ’ s 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. The Court ’ s role is confined to ascertaining whether the effects of such an interpretation are compatible with the Convention ( see Cordova, cited above, § 57 ). 87. As observed above (see paragraphs 78-80 ), in the present case the applicant never had the possibility, with reasonable prospects of success, of bringing an action for disavowal. Until 1993 he was prevented from doing so by the concealment requirement, whereas after the 1993 amendments any such judicial claim would have been time-barred. 88. The Court has already accepted that under certain circumstances, the institution of time-limits for bringing an action for disavowal may serve the interests of legal certainty and the interests of the children (see Rasmussen, cited above, p. 15, § 41). Therefore, the consequent limitations on the presumed father ’ s right of access to a court are not, as such, incompatible with the Convention. 89. However, the rules in question, or the application of them, should not prevent litigants from making use of an available remedy (see Osu v. Italy, no. 36534/97, § 32, 11 July 2002 ). The Court is of the opinion that in the present case the practical impossibility of denying paternity from the date of Y ’ s birth until the present day has impaired the essence of the applicant ’ s right to a court. Therefore, the interference complained of has put an excessive burden on the applicant, failing to strike a fair balance between the latter ’ s legitimate interest in obtaining a judicial ruling as to his presumed paternity and the protection of legal certainty and of the interests of the other persons involved in his case. 90. The Court emphasises that the above finding does not conflict with the conclusions reached in the case of Mikulić v. Croatia, cited by the Government. It notes that Ms Mikulić, a child born out of wedlock, wished to obtain a judicial decision with regard to her real father ’ s identity. However, her judicial claim was not decided within a reasonable time. In the absence of procedural measures to compel the presumed father to undergo a DNA test and of alternative means enabling an independent authority to determine the paternity claim speedily, the Court found that there had been a violation of Ms Mikulić ’ s right to have her uncertainty as to her personal identity eliminated without unnecessary delay (see Mikulić, cited above, §§ 56-66). The position of Ms Mikulić is therefore not comparable to that of Y, a child born in wedlock who did not wish to institute court proceedings to determine her real father ’ s identity and whose status as a legitimate child could never be successfully challenged by the applicant. 91. In the light of the foregoing, the Court finds that there has been a violation of the applicant ’ s right of access to a court as guaranteed by Article 6 § 1 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 92. The applicant alleged that the legal presumption of the husband ’ s paternity of the child, combined with the absence of any domestic remedy by which he could have challenged it, violated his right to respect for his private and family life, guaranteed by Article 8 of the Convention. This provision 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 Government 93. Referring to the Commission ’ s decisions in the cases of X v. the United Kingdom (no. 5269/71, Yearbook 15, pp. 564- 74, and no. 2991/64, Yearbook 15, pp. 478-500), the Government alleged that the relationship between the applicant and his 29 - year - old daughter did not constitute “family life”. They moreover observed that there had been no interference by the State with the applicant ’ s private life with X and Y. Mr Mizzi himself had declared that he had developed a friendship with Y and that he “hoped” that she was his daughter. 94. In the Government ’ s submission, the potential or rather theoretical reciprocal right of maintenance between the applicant and Y and the inheritance rights of the latter did not constitute interferences with the applicant ’ s private life, but only with his possessions. They therefore concerned family property and not family life. 95. The Government furthermore challenged the applicant ’ s argument that Article 8 guaranteed the right not to be compelled to establish relationships with other human beings. Such a right would deny the whole basis of the family. Moreover, the interests of society, of the child and of legal certainty might justify the establishment of a parental relationship with a person who was not the biological father. A legal presumption of this kind would be incompatible with the Convention only when, as in the case of Kroon and Others ( cited above ), it clashed with social reality and did not benefit anyone. 96. In the present case, Y had always enjoyed the “social reality” of being the applicant ’ s daughter and it would be detrimental to her to take away her identity and expel her from the applicant ’ s family. 97. In the light of the above, the Government submitted that, even assuming that Article 8 could apply to the facts of the present case, the interference complained of was provided by law and necessary in a democratic society to secure legal certainty and to protect the rights of others. 2. The applicant 98. The applicant alleged that the amendments introduced in the Civil Code in 1993 were aimed at protecting persons in a position comparable to his; however, no derogation was provided for in respect of the six - month time-limit set forth in Article 73 of the Civil Code, thus preventing him from instituting an action on the basis of adultery and scientific tests. The legislation in question had failed to ensure, in his case, that biological reality prevailed over the legal assumption of legitimacy, to which the Maltese legal system attributed disproportionate importance. Moreover, this legal assumption had serious financial consequences: even if not biologically related to the applicant, Y would inherit one - third of his estate and could not be treated less favourably than any other children that the applicant might have in future. Thus, the presumption of paternity had not only emotional but also financial consequences, which were disproportionate and extended substantially beyond the point at which Y ’ had reached the age of majority. 99. The applicant moreover observed that the case-law quoted by the Government in order to show that there was no family life between him and Y and that there had been no interference on the part of the State with his rights under Article 8 was not relevant. In that connection, he noted that he was not seeking to establish family life with a relative who might otherwise be considered independent, but to distance himself from a relationship which had been established by the Maltese Civil Code and which had existed since the birth of his presumed daughter. 100. In any case, the institution of paternity proceedings was clearly covered by Article 8 of the Convention. In fact, respect for private life, which was intended to mean the right to establish relationships with other human beings, should also comprise the right not to be compelled to establish such relationships. In the present case, the applicant had, against his wishes, been publicly compelled to be associated “with a woman with whom he ha[d] no biological or social relationship”. 101. In the applicant ’ s view, the Government had failed to explain how the requirements for bringing an action for disavowal were strictly necessary to meet a pressing social need. The recognition of biological reality would not cause Y any prejudice other than the loss of inheritance rights. She would not be “expelled” from the applicant ’ s family as she had never been part of it. B. The Court ’ s assessment 1. Applicability of Article 8 of the Convention 102. The Court has already examined cases in which a husband wished to institute proceedings to contest the paternity of a child born in wedlock. In those cases the question was left open whether paternity proceedings aimed at the dissolution in law of existing family ties concerned the applicant ’ s “family life” because of the finding that, in any event, the determination of the father ’ s legal relations with his putative child concerned his “private life” ( see Yildirim, cited above, and Rasmussen, cited above, § 33). 103. In the instant case the applicant sought, by means of judicial proceedings, to rebut the legal presumption of his paternity of Y on the basis of biological evidence. The purpose of those proceedings was to determine his legal relationship with Y, who was registered as his daughter. 104. Accordingly, the facts of the case fall within the ambit of Article 8 of the Convention. 2. General principles 105. The Court reiterates that the essential object of Article 8 is to protect the individual against arbitrary action by public authorities. There may in addition be positive obligations inherent in ensuring 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 Mikulić, cited above, § 57). 106. 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 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, and Kroon and Others, cited above, p. 56, § 31). 107. The Court reiterates that its task is not to substitute itself for the competent domestic authorities in regulating paternity disputes at national level, but rather to review under the Convention the decisions that those authorities have taken in the exercise of their power of appreciation (see Mikulić, cited above, § 59, and Hokkanen v. Finland, judgment of 23 September 1994, Series A no. 299-A, p. 20, § 55). It will therefore examine whether the respondent State, in handling the applicant ’ s action for disavowal, has complied with its positive obligations under Article 8 of the Convention. 3. Compliance with Article 8 of the Convention 108. The applicant did not dispute that the impossibility of bringing an action for disavowal was “in accordance with the law”. Indeed, his complaint was based on the assumption that Articles 72 and 73 of the Civil Code, as in force before and after the 1993 amendments, prevented him from bringing any successful claim before the national courts. The Court has agreed in substance with this analysis and concluded that the wording of the relevant domestic provisions, coupled with the Constitutional Court ’ s refusal to grant leave to bring such an action, deprived the applicant of the possibility of obtaining a judicial determination of his claim that he was not Y ’ s biological father (see paragraphs 80 and 87 above). 109. The Court notes that the applicant and Y underwent a blood test in Switzerland in order to establish whether he was ‘ her biological father. According to the applicant, the results of this test showed that he was not Y ’ s father (see paragraph 13 above). However, the applicant never had the possibility of having the results of the test in question examined by a tribunal. It was only after the 1993 amendments that he would have had a right under domestic law to contest his paternity of Y on the basis of scientific evidence and proof of adultery had he lodged the action within six months after ‘ her birth. 110. The Court notes that the legal systems of the Contracting States have produced different solutions to the problem which arises when the requirements for substantiating a claim for disavowal are fulfilled only after the expiry of the prescribed period. In some States, in certain exceptional cases a court may grant leave to institute proceedings out of time ( see Rasmussen, cited above, § 24). In others the authority to do so is vested in the public prosecutor (see Yildirim, cited above). 111. In the applicant ’ s case, the only means of redress was apparently to lodge a constitutional application seeking a declaration that notwithstanding the provisions of the Civil Code, the husband had a right to proceed with an action for disavowal of paternity. The Government failed to indicate any other effective domestic remedies by which to obtain the reopening of the time allowed for bringing such an action. Had the Civil Court and the Constitutional Court accepted the application lodged by the applicant to that effect, they would have adequately secured his interests, as he had legitimate reasons to believe that Y might not be his daughter and wished to challenge in court the legal presumption that he was her father. However, his application was rejected and, as noted above, the applicant was never afforded the possibility of bringing, with reasonable prospects of success, an action aimed at rebutting the presumption in question. 112. The Court is not convinced by the Government ’ s argument that such a radical restriction of the applicant ’ s right to institute proceedings to deny paternity was “necessary in a democratic society”. In particular, it has not been shown why society as a whole would benefit from such a situation. The potential interest of Y in enjoying the “social reality” of being the daughter of the applicant cannot outweigh the latter ’ s legitimate right to have at least the opportunity to deny paternity of a child who, according to scientific evidence, was not his own. As to the interests of legal certainty, the Court cannot but reiterate the observations developed under Article 6 § 1 of the Convention (see paragraphs 87-90 above). 113. According to the Court ’ s case-law, a situation in which a legal presumption is allowed to prevail over biological reality might not be compatible, even having regard to the margin of appreciation left to the State, with the obligation to secure effective “respect” for private and family life ( see, mutatis mutandis, Kroon and Others, cited above, § 40 ). 114. The Court considers that the fact that the applicant was never allowed to contest his paternity of Y was not proportionate to the legitimate aims pursued. It follows that a fair balance has not been struck between the general interest in the protection of legal certainty of family relationships and the applicant ’ s right to have the legal presumption of his paternity reviewed in the light of biological evidence. Therefore, despite the margin of appreciation afforded to them, the domestic authorities have failed to secure respect for the applicant ’ s private life, to which he is entitled under the Convention. 115. Accordingly, the Court finds that there has been a violation of Article 8. 116. This finding dispenses the Court from establishing whether this provision has also been violated on account of the reciprocal right of maintenance existing between the applicant and Y and the ‘ inheritance rights enjoyed by the latter. IV. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 6 § 1 AND ARTICLE 8 117. The applicant complained of discrimination on the ground of his status as the legally presumed father in the exercise of his rights under Article 6 § 1 and/or Article 8 of the Convention. He invoked Article 14 of the Convention, which reads as follows: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” A. The parties ’ submissions 1. The Government 118. The Government submitted that the applicant ’ s complaint was similar to that examined by the Court in the case of Rasmussen v. Denmark ( cited above ). They further observed that under Maltese law the circumstances under which any interested person could challenge a child ’ s legitimacy without a specific time-limit were rather exceptional (in particular, when it had been physically impossible for the husband to have cohabitated with his wife or when the child was born three hundred days after the dissolution or annulment of the marriage). These circumstances had not occurred in the present case and the applicant had therefore not been treated differently from other persons. Moreover, an action by an “interested person” would be limited by the provisions of the Civil Code protecting the status of a child conceived or born in wedlock and the status assigned by the birth certificate. 119. The Government also submitted that the applicant was not in a situation analogous to that of the other persons in relation to whom he alleged to have been discriminated against. In any event, the time-limits for bringing an action for disavowal were aimed at protecting legal certainty, at avoiding the possibility that a child might have his or her paternity determined a long time after birth and at preventing the action from being used by the husband as a tool for blackmailing the child or the mother. Any difference in treatment was therefore objectively and reasonably justified. 120. As to the applicant ’ s allegation that in other Contracting States (notably Austria and Denmark at the time of the Rasmussen judgment) it was possible to bring an action for disavowal after the legally prescribed time-limit, the Government pointed out that leave for bringing the action out of time was subject to strict conditions. There was no evidence that in other Contracting States a father would be allowed to deny paternity if he obtained scientific evidence twenty-seven years after the birth of the child and wished to start proceedings six years after obtaining that evidence. It was shown by a report on “The establishment and consequences of maternal and paternal affiliation” that the average limitation period for bringing an action for disavowal in Europe was one year (notably in Switzerland, Austria and Italy) and that a six-month period was by no means exceptional ( being applied, for instance, in France, Poland and Spain). The report also indicated that in some countries ( such as Germany, Switzerland, Austria and Hungary) the time started to run from the date on which the husband became aware of the circumstances suggesting that he might not be the father of the child. However, such a provision would not have benefited the applicant, who had already had doubts as to his paternity of Y at the time of ‘ her birth. 121. In view of the above, the Government submitted that in providing for a shorter period for the husband to bring an action for disavowal, the national authorities had not exceeded their margin of appreciation. They had treated differently situations which were not analogous and which could not form the basis for a claim of discrimination. The applicant 122. The applicant alleged that contrary to other individuals in an analogous situation (namely X, Y and Y ’ s real father), he was subject, in bringing an action for disavowal, to the limitation period set forth in Article 73 of the Civil Code. If Y wished to bring an action to determine her paternity, she would be in an even more preferential position, as she would not be required to establish any of the grounds set out in Article 70 § 1 and Article 77 of the Civil Code and would not be subject to any limitation period. 123. As to the Government ’ s contention that ‘ the paternity of Y could not be challenged by reason of the irrebuttable presumption that a person conceived in wedlock possessed a status in conformity with his or her birth certificate, the applicant submitted that it was far from clear that Y possessed such a status. In fact, she had never been treated as a child by the applicant and had never been acknowledged as such by his family. 124. The applicant considered that the impugned difference in treatment had no justification. The importance of legal certainty and the need to prevent blackmail applied equally to all the parties and not only to the presumed father. In any event, the Government had failed to explain why it was necessary to apply a limitation period which was inflexible, subject to no exceptions and shorter than those applied by many other High Contracting Parties. Moreover, in many countries the period did not start to run from the birth, as in Malta, and leave could be granted to bring the action outside the normal requirements. 125. The applicant lastly pointed out that in a judgment of 2 June 2005 the Spanish Constitutional Court had declared that the one-year time-limit provided for by domestic law was unconstitutional in circumstances where it prevented a husband from bringing an action for disavowal where he had obtained proof that a child born in wedlock was not his only after the expiry of that period. This conclusion had been considered a corollary of the principle of the dignity of the person, both from the perspective of the right of the son to know his identity as well as from that of paternity as a projection of the person. B. The Court ’ s assessment 1. Applicability of Article 14 126. As the Court has consistently held, Article 14 complements the other substantive provisions of the Convention and the Protocols. It has no independent existence since it has effect solely in relation to "the enjoyment of the rights and freedoms" safeguarded by those provisions. Although the application of Article 14 does not presuppose a breach of those provisions – and to this extent it is autonomous – there can be no room for its application unless the facts at issue fall within the ambit of one or more of the latter (see, among many other authorities, Van Raalte v. the Netherlands, judgment of 21 February 1997, Reports 1997-I, p. 184, § 33, and Karlheinz Schmidt v. Germany, judgment of 18 July 1994, Series A no. 291-B, p. 32, § 22). 127. The Court has found that the facts of the case fall within the ambit of Article 6 § 1 and Article 8 of the Convention (see paragraphs 77 and 10 4 above). Moreover, it has found a breach of these two provisions (see paragraphs 90 and 115 above). 128. Accordingly, Article 14 is applicable in conjunction with Article 6 § 1 and Article 8. Compliance with Article 14 of the Convention 129. The Court observes that in the present case, in bringing an action for disavowal the applicant was subject to time-limits which did not apply to other “interested parties”. In particular, pursuant to Article 73 (a) of the Civil Code, a husband had to bring an action to disavow a child within three months from the date of the birth. This period was extended to six months in 1993 (see paragraphs 36 and 38 above). On the contrary, any person interested may impeach the legitimacy of a child born in wedlock by means of an action which is not subject to any time-limit (see Article 77 of the Civil Code, paragraph 39 above). Moreover, the domestic courts have held that a child has the right to challenge his or her paternity without restrictions when the status assigned by the birth certificate conflicts with the factual reality (see paragraph 40 above ). 130. The Court reiterates that Article 14 safeguards individuals who are "placed in analogous situations" against discriminatory differences of treatment (see Rasmussen, cited above, p. 13, § 35). 131. The Court accepts that there might have been differences between the applicant and the other interested parties – namely X, Y and Y ’ s biological father. However, the fact that there are some differences between two or more individuals does not preclude them from being in sufficiently comparable positions and interests. The Court considers that with regard to their interest in contesting a status relating to paternity, the applicant and “other interested parties” were in analogous situations within the meaning of Article 14 of the Convention (see, mutatis mutandis, Rasmussen v. Denmark, no. 8777/79, Commission ’ s report of 5 July 1983, Series A no. 87, p. 24, § 75). 132. According to the Court ’ s case-law, a difference in treatment is discriminatory for the purposes of Article 14 if it “has no objective and reasonable justification”, that is if it does not pursue a “legitimate aim” or if there is not a “reasonable relationship of proportionality between the means employed and the aim sought to be realised” (see, among other authorities, Pla and Puncernau v. Andorra, no. 69498/01, § 61, ECHR 2004 -VIII ). In this connection, the Court observes that the Convention is a living instrument, to be interpreted in the light of present-day conditions (see, among other authorities, Fretté v. France, no. 36515/97, § 34, ECHR 2002-I, and Johnston and Others v. Ireland, judgment of 18 December 1986, Series A no. 112, pp. 24-25, § 53). 133. In the Rasmussen case, the Court, having regard to the lack of common ground in the Contracting States ’ legislation and to the margin of appreciation enjoyed by the domestic authorities, held that the institution of different time-limits between husbands and wives could be justified by the desire to ensure legal certainty and to protect the interests of the child, and that it did not exceed a reasonable relationship of proportionality ( Rasmussen, cited above, pp. 15-16, §§ 41-42). 134. The present case is, however, distinguishable from that of Rasmussen, in which the applicant had an opportunity to disavow the child during the five years subsequent to the birth and within twelve months after he had become cognisant of the circumstances affording grounds for contesting paternity. As noted above (see paragraphs 80, 87 and 10 8 ), Mr Mizzi never had such an opportunity. The rigid application of the time-limit, coupled with the Constitutional Court ’ s refusal to allow an exception, deprived him of the possibility of exercising the rights guaranteed by Articles 6 and 8 of the Convention, which, on the contrary, were and still are enjoyed by the other interested parties. 135. Under these circumstances, the Court cannot conclude that the difference in treatment complained of was proportionate to the aims sought to be achieved. 136. It follows that there has been a violation of Article 14, read in conjunction with Article 6 § 1 and Article 8 of the Convention. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 137. 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 138. The applicant alleged that his inability to disavow his paternity of Y and his participation in the subsequent domestic litigation had caused him anxiety, frustration and distress. He sought 3, 500 Maltese liras ( MTL – approximately 8,431 euros (EUR)) for non-pecuniary damage. He referred, in that connection, to the sums awarded by the Court in the cases of Keegan v. Ireland (judgment of 26 May 1994, Series A no. 290, p. 23, § 68) and L. v. the Netherlands ( § 48, no. 45582/99, ECHR 2004-IV ). 139. The Government considered that the applicant ’ s claim was “misplaced” and that the finding of a violation would constitute sufficient just satisfaction. They submitted that it was likely that anyone who tried to reverse a declaration of paternity which he had himself made would suffer some anxiety and frustration, as a normal side-effect of legal proceedings. Moreover, the cases cited by the applicant concerned denial of access to a natural daughter and not disavowal of paternity. 140. The Court finds, in the circumstances, that the applicant must have suffered feelings of frustration, uncertainty and anxiety which cannot be compensated solely by the finding of a violation. Making an assessment on an equitable basis, as required by Article 41, the Court awards the applicant EUR 5,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on this amount. B. Costs and expenses 141. The applicant sought the reimbursement of the costs incurred before the Court, which, according to the bills he had produced, amounted to MTL 3 6, 8 2 6. 3 4 (approximately EUR 88, 718 ). 142. The Government considered that the amount claimed by the applicant was manifestly excessive and that it had no relation to normal legal costs in human -rights litigation in Malta. Moreover, the applicant had not provided any proof that the expenses incurred in Malta had been taxed according to law. Without being obliged to do so, he had engaged the services of celebrity London barristers, whose fees were notoriously higher than those of Maltese lawyers. Under these circumstances, the Government were of the opinion that the applicant should bear most of the fees he had incurred and that a fair assessment of the costs and expenses should be made in accordance with the legal aid rates applicable in Strasbourg proceedings. 143. According to the Court ’ s established case-law, an award can be made in respect of costs and expenses incurred by the applicant only in so far as they have been actually and necessarily incurred and are reasonable as to quantum (see, inter alia, Belziuk v. Poland, judgment of 25 March 1998, Reports 1998-II, p. 573, § 49, and Craxi v. Italy, no. 34896/97, § 115, 5 December 2002). 144. The Court considers the amount claimed to be excessive. It is therefore appropriate to reimburse only in part the costs and expenses alleged by the applicant (see, mutatis mutandis, Nikolova v. Bulgaria, no. 31195/96, § 79, ECHR 1999-II; Sakkopoulos v. Greece, no. 61828/00, § 59, 15 January 2004; and Cianetti v. Italy, no. 55634/00, § 56, 22 April 2004 ). Having regard to the elements at its disposal and on the basis of an equitable assessment, the Court awards the applicant EUR 40,000 under this head, plus any tax that may be chargeable on this amount. C. Default interest 145. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 6 § 1 (right to a fair trial) of the Convention, finding that the practical impossibility for the applicant to deny his paternity from the day the child was born until the present day had impaired, in essence, his right of access to a court. It further held that there had been a violation of Article 8 (right to respect for private and family life) of the Convention, considering that a fair balance had not been struck between the general interest of the protection of legal certainty of family relationships and the applicant’s right to have the legal presumption of his paternity reviewed in the light of the biological evidence. Lastly, the Court held that there had been a violation of Article 14 (prohibition of discrimination) taken in conjunction with Articles 6 and 8 of the Convention: observing that in bringing an action to contest his paternity the applicant had been subject to time-limits which did not apply to other “interested parties”, it found that the rigid application of the time-limit along with the Maltese Constitutional Court’s refusal to allow an exception had deprived the applicant of the exercise of his rights guaranteed by Articles 6 and 8 which had been and still were, on the contrary, enjoyed by the other interested parties. |
145 | Unaccompanied foreign minor | RELEVANT LEGAL FRAMEWORK AND PRACTICE DOMESTIC LAWPreliminary considerations Preliminary considerations Preliminary considerations 42. At the time of the facts of the case, the relevant Italian legislative framework consisted only of the original texts of Legislative Decrees no. 25 of 20 January 2008 (see paragraph 45 below) and no. 142 of 18 August 2015 (see paragraph 47 below). 43. Further parts containing some important provisions relating to the treatment of unaccompanied minors were later added to Legislative Decree no. 142 of 18 August 2015 by Law no. 47 of 7 April 2017, which entered into force on 6 May 2017 (see paragraph 48 below). These new parts are indicated in the footnotes to the Articles concerned (see paragraph 47 below). 44. The legislative framework also included Legislative Decree no. 24 of 4 March 2014 (see paragraph 46 below), but that only addressed questions of human trafficking and became applicable on 6 January 2017, after the entry into force of Prime Ministerial Decree no. 234 of 10 December 2016 (see paragraph 55 below). Legislative frameworkLegislative Decree no. 25 of 20 January 2008 “Implementation of EU Directive 2005/85/CE on minimum standards on procedures in Member States for granting and withdrawing refugee status” Legislative Decree no. 25 of 20 January 2008 “Implementation of EU Directive 2005/85/CE on minimum standards on procedures in Member States for granting and withdrawing refugee status” Legislative Decree no. 25 of 20 January 2008 “Implementation of EU Directive 2005/85/CE on minimum standards on procedures in Member States for granting and withdrawing refugee status” 45. The relevant provisions of this Legislative Decree state as follows: Article 19 - Guarantees for unaccompanied minors “1. Unaccompanied minors who have expressed their intention to ask for international protection shall be provided with the necessary assistance to lodge such a request. They shall be provided with the assistance of a legal guardian at all stages of the examination of the application, in accordance with Article 26 § 5. 2. In case of doubt about the minor’s age, the individual may be subjected, with his or her consent or that of his or her representative, to non-invasive medical examinations. If the examinations do not allow the exact age to be determined, the provisions of this Article shall apply. 3. The person shall be informed that his or her age can be determined through a medical examination, of the type of examination to be carried out and of its consequences in relation to the result of his or her request. Refusal to undergo the examination does not constitute grounds for not granting asylum or adopting the relevant decision. 4. The minor shall participate in a personal interview [for the asylum request] and shall be duly informed of the significance and possible consequences of the personal interview ... Article 26 - Treatment of requests for international protection ... 5. When the request is presented by an unaccompanied minor, the receiving authority shall suspend the proceedings and immediately inform the Juvenile Court in order to open guardianship proceedings and appoint a legal guardian ... Within forty-eight hours the court shall appoint a legal guardian. The legal guardian ... shall make immediate contact with the minor to inform him or her of his or her appointment ... and with the police [ Questura ] to confirm and follow up the request [for international protection]. ...” Legislative Decree no. 24 of 4 March 2014 “Implementation of Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims” 46. The relevant provisions read as follows: Article 4 - Unaccompanied minors who are victims of human trafficking “1. Unaccompanied minors who are victims of human trafficking shall be duly informed of their rights, including that of access to the international protection procedure. 2. A [Prime Ministerial] Decree ..., to be adopted within six months of the entry into force of this Decree, shall settle the mechanisms through which, if there are well-founded doubts about the victim’s minor age, and the age cannot be assessed through identification documents, in accordance with the best interests of the child, age shall be assessed through a multidisciplinary procedure carried out by specialised staff, following appropriate procedures that take into account the specificities of the minor’s ethnic and cultural origin, as well as, where appropriate, the identification of minors through the involvement of diplomatic authorities. Pending the age-assessment and identification procedures, a victim of human trafficking is considered to be a minor with regard to access to assistance and protection. Minority is also presumed where the multidisciplinary procedure does not allow the age of the person concerned to be established with certainty.” Legislative Decree no. 142 of 18 August 2015 47. This Decree implemented EU Directives 2013/32 and 2013/33 (see paragraphs 76 and 77 below). The relevant provisions state as follows: Article 15 - Identification of the reception facility “1. The prefecture shall provide a place for the applicant in the facility that has been identified ... 6. A refusal to place someone in a reception facility can be challenged before the administrative courts. Article 18 - Provisions on minors [3] 1. In implementing the reception measures provided for by this Decree, the principle of the best interests of the child is of primary importance with a view to ensuring adequate living conditions, compatible with minority, in relation to the protection, well-being and development (included social development) of minors ... 2. In order to evaluate the best interests of the child, it is necessary to interview the minor, taking into account his or her age, level of maturity and personal development, also with a view to evaluating his or her past experience and the risk that he or she is a victim of human trafficking, and to evaluate the possibility of family reunification ... 2 bis. Emotional and psychological support of unaccompanied foreign minors shall be ensured at all ... stages of the proceedings by the presence of suitable persons, indicated by the minor, as well as of groups, foundations, associations and non-governmental organisations with proven experience in the field of assistance to foreign children ... 2 ter. An unaccompanied foreign minor has the right to participate, through his or her representative, in all administrative and judicial proceedings concerning him or her, and to be heard on the merits. To this end, the presence of a cultural mediator shall be ensured. Article 19 - Accommodation of unaccompanied minors [4] 1. ... Unaccompanied minors shall be accommodated in governmental initial reception facilities ... for the time (which should not exceed thirty days) strictly necessary for their identification (which should not exceed ten days), for their possible age assessment and for receiving all adequate information about their rights and their implementation, in a manner appropriate to their age, including the right to apply for international protection ... During their stay at the reception facility, an interview with a developmental psychologist shall be carried out, if necessary in the presence of a cultural mediator, in order to assess the minor’s personal situation, the reasons and the circumstances of his or her departure from the country of origin and travel, as well as their personal expectations ... 1 bis. Under no circumstances shall a foreign unaccompanied minor be subject to removal at the border [ respingimento alla frontiera ]. 2. Unaccompanied minors shall be received in the framework of the system of protection of asylum-seekers, refugees and unaccompanied minor migrants ... 2 bis. While choosing the place of reception, among those available, importance shall be given to the specific needs and characteristics of the minors that emerged from the interview described in paragraph 1 ... The accommodation for unaccompanied minors shall respect the minimum standards of services and assistance generally provided by the assistance facilities for minors and shall have authorisation under the relevant national and regional regulations ... 3. In the event that reception facilities are temporarily unavailable, assistance shall be given by the public authority of the municipality in which they are located. 3 bis. In the event of mass arrivals of unaccompanied minors and the impossibility of ensuring their reception as provided above, minors shall be accommodated, following a request by a prefect, in temporary structures exclusively dedicated to unaccompanied minors, suitable for up to fifty people each and only for the time necessary for their transfer to ordinary facilities ... 4. A minor shall not be housed in structures dedicated to adults. 5. The police authorities shall immediately inform the Juvenile Court and its prosecutor of the presence of unaccompanied minors, in order to open the relevant guardianship proceedings ... 6. A legal guardian shall have the necessary competences to exercise his or her functions and shall perform his or her duties in conformity with the principle of the best interests of the child ... 7 bis. Within five days of the interview described in paragraph 1 of Article 19- bis, if there is no risk to the foreign unaccompanied minor or his or her family members, once the minor’s consent has been acquired, and exclusively in his or her own interest, the person exercising parental authority, even temporarily, can send a report to the competent institution, which shall immediately commence enquiries [in respect of the minor’s family]. 7 ter. The results of the above-mentioned enquiries shall be communicated to the Ministry of the Interior, which shall promptly inform the minor, the person exercising parental authority and those who held the above-mentioned interview. 7 quater. If family members able to take care of the unaccompanied foreign minor are identified, this solution shall be preferable to placing the minor in a centre ( comunità ) ... Article 19 bis - Identification of foreign unaccompanied minors [5] 1. As soon as a foreign unaccompanied minor has contacted the police, social services or other representatives of local entities or the judicial authority (or those authorities have been notified of his or her presence), qualified staff of the initial reception facility shall carry out ... an interview with a view to assessing the individual’s personal and family history and any other elements useful for his or her protection, following the procedure set up by the Prime Ministerial Decree to be adopted within 120 days of the date of entry into force of this provision [6]. A cultural mediator shall be present during the interview. 2. If there are well-founded doubts concerning the age declared by the minor, paragraphs 3 et seq. shall apply. In any event, pending the results of the identification procedure, the minor shall be housed in a dedicated initial reception facility for minors; where the conditions are fulfilled, the provisions of Article 4 of Legislative Decree no. 24 of 4 March 2014 shall apply. 3. The identity of a foreign unaccompanied minor shall be verified by an authority responsible for public safety, with the assistance of a cultural mediator, in the presence of his or her legal guardian or provisional legal guardian, where already appointed, only once the minor has been provided with initial humanitarian assistance. When doubts as to the person’s age persist, the latter shall be verified primarily through an identity document, with the assistance of the diplomatic and consular authorities, where appropriate ... 4. When reasonable doubts as to the unaccompanied minor’s age still persist, a prosecutor at the Juvenile Court can order a social and medical assessment in order to assess the person’s age. 5. The foreigner shall be informed, with the assistance of a cultural mediator, in a language that he or she understands and in language adapted to his or her level of maturity and literacy, of the fact that his or her age can be determined through social and medical assessments, of the kind of examinations to be carried out and possible consequences of their results, as well as those resulting from a refusal to undergo such examinations. This information shall also be provided to the presumed minor’s legal guardian, even if exercising such powers temporarily. 6. A social and medical age assessment shall be carried out in an appropriate environment and through a multidisciplinary approach by adequately trained professionals and, where appropriate, in the presence of a cultural mediator, using the least invasive method possible and with due respect to the person’s presumed age, sex, and physical and mental integrity. Social and medical assessments which could compromise the person’s physical and mental integrity shall not be carried out. 7. The result of the social and medical assessment shall be communicated to the foreign national in a manner appropriate to his or her age, maturity and level of literacy, in a language that he or she can understand. [It shall also be communicated] to the person exercising parental authority and the judicial authority that ordered the age assessment. The margin of error must always be indicated in the final report. 8. If, after the social and medical assessment, doubts about the person’s minor age still persist, minor age shall be presumed ... 9. The age-assessment certificate [issued by the Juvenile Court, pursuant to Legislative Decree no. 220 of 22 December 2017] shall be served on the alien and, at the same time, on the legal guardian, where one has been appointed, and can be challenged on appeal, in accordance with Article 739 and et seq. of the Code of Civil Procedure. If appealed against, the judge shall decide the appeal within ten days ...” Law no. 47 of 7 April 2017 - Provisions concerning the protection of unaccompanied minors 48. This Law aims at ensuring foreign unaccompanied minors all the rights granted to minors of Italian or European Union nationality, with consideration in particular for their increased vulnerability (Article 1). 49. The different phases of the age-assessment procedure have been summarised in the new Article 19 bis and in the new paragraphs of Articles 18 and 19 of Legislative Decree no. 142 of 2015. 50. Other protective measures concern, inter alia, the following issues: pending the appointment of a guardian, the person in charge of the reception centre is entitled to act on behalf of the minor in order to apply for a residence permit or international protection (Article 6); unaccompanied minors’ placement with families (to be preferred to their placement in reception centres) (Article 7); procedural guarantees concerning unaccompanied minors’ repatriation (Article 8); the need to keep a “social report”, to be sent to social services, concerning the situation of unaccompanied minors and a long-term solution to be considered in their best interests (Article 9); the granting of a residence permit (Article 10); drawing up a list of duly trained voluntary guardians (Article 11); and informing foreign unaccompanied minors of their right to legal assistance (Article 16). 51. The first paragraph of the latter Article has added paragraph 4 quater to Article 76 of Presidential Decree no. 115 of 30 May 2002 (on legislative provisions and regulations concerning legal expenses). The new paragraph reads as follows: “Unaccompanied foreign minors involved in judicial proceedings of any kind shall have the right to be informed of the opportunity to appoint a lawyer of their own choice, including via the appointed guardian or the person exercising parental authority ... and to make use, based on the applicable legislation, of public free legal aid at every type and stage of the procedure ...” Administrative measuresCircular of the Minister of the Interior of 9 July 2007 (Identification of minor migrants) Circular of the Minister of the Interior of 9 July 2007 (Identification of minor migrants) Circular of the Minister of the Interior of 9 July 2007 (Identification of minor migrants) 52. The relevant parts of this Circular read as follows: “The current applicable legislation proscribes the expulsion of certain categories of individuals, including minor migrants ... The need to properly assess the age of migrants appears then to be of particular importance given that, in the event of a minor being wrongly identified as an adult, serious measures in breach of his or her rights, such as expulsion, removal or detention in a reception or identification centre, could be wrongly adopted. Therefore, if there are doubts about a possible minor’s age, it is necessary to carry out all the age-assessment examinations set out in the current legislation as a priority in public facilities with paediatric wards. However, as such assessments cannot provide exact information and can only indicate an age range, it is possible that the margin of error could include both minor and adult ages. In this regard, [we reiterate] ... that age assessment shall be carried out in a scientific and secure way, respecting the age, sex, physical integrity and dignity of the person concerned, and that the benefit of the doubt should always be applied. The principle of presumption of minor age [recognised in the framework of criminal proceedings against minors] shall also be applied in migration cases, as it is aimed at providing children with the broadest guarantees possible ...” Guidelines on unaccompanied foreign minors of the Ministry of Labour and Social Policies of 19 December 2013 53. The relevant parts of these Guidelines state that, in the absence of identity documents and if there are well-founded doubts concerning the information provided by the individual concerned, age must be assessed by the competent authorities with due respect for the rights and the guarantees set out for minors. Minor age is presumed if, at the end of the assessment, doubts about minority still persist. Protocols on age assessment of unaccompanied minors 54. A Protocol of 3 March 2016, signed by the Conference of Regions and Autonomous Provinces following the entry into force of Legislative Decree no. 142 of 2015 (see paragraphs 47 et seq. above) restated inter alia the applicable legislation and rules on this matter (including the Circular of the Minister of the Interior of 11 July 2007 and the Legislative Decree no. 24 of 4 March 2014, see paragraph 46 above). The document, based on a previous Protocol drawn up by the Ministry of Health in 2009 (“Protocol on the age assessment of minors based on a multidimensional approach”), was followed in turn by the “Multidisciplinary Protocol on the age assessment of unaccompanied minors” which was circulated to Regions and Autonomous Provinces on 19 November 2018. Only the latter Protocol was adopted by the Presidency of the Council of Ministers on 9 July 2020. Prime Ministerial Decree no. 234 of 10 December 2016 “Regulation of the mechanism for age assessment of unaccompanied minors who are victims of human trafficking” 55. The relevant parts of this Decree, which entered into force on 6 January 2017, state as follows: Article 2 - Administrative identification procedure and age assessment “1. In all age-assessment procedures, the best interests of the child constitute the main criterion. 2. The police shall verify the age of the person on the basis of the available identity documents ... and of the data collected from [public institution] databases ... 4. If the assessment of the person’s age through the said documents is not possible, the police ... shall hold an interview with the presumed minor, explaining, possibly with the help of a cultural mediator and an interpreter, and in a language that is comprehensible and appropriate for a presumed minor, the importance of declaring correct information and the legal consequences of possible false declarations. The person shall also be informed that, if there are reasonable doubts as to his or her age, the judicial authority can authorise certain examinations ( accertamenti ), which can be medical in nature, in order to determine his or her age. 5. The actions described in paragraphs 2 and 4 shall be carried out within twenty-four hours of the first contact with the potential human-trafficking victim, pursuant to Articles 600 and 601 of the Criminal Code ...” Article 3 - Intervention of the judicial authority “1. Once the actions referred to in Article 2 § 5 have been carried out, if reasonable doubts about the person’s age still persist ... the police can ask the competent guardianship judge for authorisation to carry out the procedure described in Article 5 ... 4. While authorising the said procedure, the judge shall identify the person who is going to exercise legal guardianship [of the presumed minor] ... and a medical institution equipped with multidisciplinary paediatric staff where the examination described in Article 5 can be carried out ...” Article 4 - Right to information “1. The presumed minor shall be informed by qualified staff of the medical facility ... that his or her age is going to be determined through the age-assessment procedure described in Article 5. The information shall be provided in a language that the person can understand, and shall be adapted to his or her level of maturity and literacy, by means of the support of multilingual material and a cultural mediator, where appropriate. In any event, the presumed minor shall be informed: a) of the fact that his or her age shall be determined by means of a multidisciplinary procedure which can involve medical examinations; b) of the activities involved in the said procedure, of the expected results and of their consequences; c) of his or her right to refuse to submit to any steps of the examination described in Article 5. 2. The steps described in paragraph 1 shall take place in the presence of a legal guardian or of a person temporarily entitled to guardianship ...” Article 5 - Multidisciplinary age-assessment procedure “1. Age assessment shall be carried out by qualified staff of the medical institution identified in accordance with Article 3 § 4 ... A medical examination shall be held following a method of progressive invasiveness. At all stages of the examination the guarantees and protections reserved to minors, taking into account their sex, culture and religion, shall be taken into account. 2. The age-assessment procedure shall be carried out by a multidisciplinary team. It shall consist of an interview held by social workers ( colloquio sociale ), focusing on previous life experiences that might be relevant for the assessment, an auxological examination, and a psychological or neuropsychiatric evaluation, in the presence of a cultural mediator, where appropriate. 3. The procedure shall start within three days of the date of the authorisation, as set down in Article 3 § 4, and end within the following twenty days. The final report, written by the multidisciplinary team, shall indicate the estimated chronological age, specifying the margin of error inherent in biological variability and the methods used, and the relevant minimum and maximum value of the age that can be attributed. 4. The procedure’s results shall be communicated to the guardianship judge, the legal guardian or the person exercising, even temporarily, guardianship powers, and to the presumed minor in a language that he or she understands, taking into account the person’s age, maturity and level of literacy.” Article 6 - Age-assessment final decision “1. A guardianship judge shall take the decision concerning the attribution of age on the basis of the results of the multidisciplinary procedure ... 2. In the event that the elements collected are not sufficient to establish, beyond any reasonable doubt, the person’s age, the judge takes the final decision on age assessment, stating the inability to attribute the exact age, and the minimum value referred to in Article 5 § 3; 3. The decision is served on the person undergoing the examination, together with a translation in a language that he or she can understand well, as well as to the legal guardian or to the person exercising, even temporarily, guardianship powers; the decision can be challenged ...” Article 7 - Presumption of minor age “1. Pending the identification and age-assessment procedure, in view of the immediate access to assistance, support and protection, the victim of human trafficking shall be ... considered a minor. 2. For the same purpose, minor age shall be presumed in the case described in Article 6 § 2.” Domestic case-law 56. The Italian Supreme Court of Cassation, both in its Civil and Criminal Chambers (Chamber I, no. 6520 of 2020 and Chamber I, no. 43322 of 2021 respectively), has clarified that the multidisciplinary age-assessment procedure pursuant to Article 19 bis of Legislative Decree no. 142 of 2015, as amended (see paragraph 47 above), in force starting on 6 May 2017, has a pre-eminent position in the Italian legal system, as is made clear by the provision contained therein which stipulates that all other pending proceedings are suspended until age is assessed. The outcome of the assessment therefore has authority in any other set of civil or criminal proceedings, both pending or started subsequently. INTERNATIONAL LAW AND PRACTICEUnited NationsConvention on the Rights of the Child of 20 November 1989 United NationsConvention on the Rights of the Child of 20 November 1989 Convention on the Rights of the Child of 20 November 1989 United NationsConvention on the Rights of the Child of 20 November 1989 Convention on the Rights of the Child of 20 November 1989 Convention on the Rights of the Child of 20 November 1989 57. The United Nations Convention on the Rights of the Child (“the CRC”) sets out universally recognised standards for the protection and promotion of children’s rights. The relevant provisions provide 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. 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 12 “1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. 2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.” The UN Committee on the Rights of the Child 58. The implementation of the CRC is monitored by the UN Committee on the Rights of the Child, which is composed of independent experts. Amongst other activities, it decides individual complaints and issues authoritative interpretative guidance on CRC provisions. 59. By a decision of 27 September 2018 on individual complaint no. 11/2017 lodged against Spain in relation to the Optional Protocol to the CRC on a communications procedure (which entered into force on 14 April 2014), the Committee found a breach of the principle of the best interests of the child and of the right of the child to be heard, guaranteed by Articles 3 and 12 of the CRC, in a case where a migrant applicant, on arrival in Spain, had declared that he was a minor to the authorities. He had then been subject to an age-assessment examination on the sole basis of the Greulich and Pyle method, following which the authorities had adjudged that he was an adult. The Committee also noted that the applicant in that case had not been represented by a legal guardian or representative on his arrival, nor interviewed and assisted by a psychologist. 60. The relevant General Comments of the UN Committee on the Rights of the Child are the following. 61. General Comment no. 6 (2005) on the treatment of unaccompanied and separated children outside their country of origin describes the particularly vulnerable situation of such children and outlines the multifaceted challenges faced by States and other actors in ensuring that children are able to access and enjoy their rights. 62. General Comment no. 12 (2009) on the right of the child to be heard strengthens the objective of supporting States Parties in the effective implementation of this right. 63. General Comment no. 14 (2013) focuses on the right of the child to have his or her best interests taken as a primary consideration. Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, adopted by General Assembly resolution 45/158 of 18 December 1990 64. The relevant parts of Joint general comment no. 3 (2017) of the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families and no. 22 (2017) of the Committee on the Rights of the Child on the general principles regarding the human rights of children in the context of international migration provide as follows: “35. ... it is critical to implement fully [children’s] right to express their views on all aspects affecting their lives, including as an integral part of immigration and asylum proceedings, and for their views to be given due weight. Children may have their own migration projects and migration-driving factors, and policies and decisions cannot be effective or appropriate without their participation. The Committee also emphasizes that these children should be provided with all relevant information, inter alia, on their rights, the services available, means of communication, complaints mechanisms, the immigration and asylum processes and their outcomes. Information should be provided in the child’s own language in a timely manner, in a child-sensitive and age-appropriate manner, in order to make their voice heard and to be given due weight in the proceedings. 36. States parties should appoint a qualified legal representative for all children, including those with parental care, and a trained guardian for unaccompanied and separated children, as soon as possible on arrival, free of charge. Accessible complaints mechanisms for children should be ensured. Throughout the process, children should be offered the possibility to be provided with a translator in order that they may express themselves fully in their native language and/or receive support from someone familiar with the child’s ethnic, religious and cultural background. These professionals should be trained on the specific needs of children in the context of international migration, including gender, cultural, religious and other intersecting aspects. 37. States parties should take all measures appropriate to fully promote and facilitate the participation of children, including providing them with the opportunity to be heard in any administrative or judicial proceeding related to their or their families’ cases, including any decision on care, shelter or migration status. Children should be heard independently of their parents, and their individual circumstances should be included in the consideration of the family’s cases. Specific best-interests’ assessments should be carried out in those procedures, and the child’s specific reasons for the migration should be taken into account. Regarding the significant relationship between the right to be heard and the best interests of the child, the Committee on the Rights of the Child has already stated that there can be no correct application of article 3 if the components of article 12 are not respected. Likewise, article 3 reinforces the functionality of article 12, facilitating the essential role of children in all decisions affecting their lives.” 65. The relevant parts of Joint general comment no. 4 (2017) of the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families and no. 23 (2017) of the Committee on the Rights of the Child on State obligations regarding the human rights of children in the context of international migration of 16 November 2017 provide as follows: “4. To make an informed estimate of age, States should undertake a comprehensive assessment of the child’s physical and psychological development, conducted by specialist paediatricians or other professionals who are skilled in combining different aspects of development. Such assessments should be carried out in a prompt, child-friendly, gender-sensitive and culturally appropriate manner, including interviews of children and, as appropriate, accompanying adults, in a language the child understands. Documents that are available should be considered genuine unless there is proof to the contrary, and statements by children and their parents or relatives must be considered. The benefit of the doubt should be given to the individual being assessed. States should refrain from using medical methods based on, inter alia, bone and dental exam analysis, which may be inaccurate, with wide margins of error, and can also be traumatic and lead to unnecessary legal processes. States should ensure that their determinations can be reviewed or appealed to a suitable independent body ... 15. The Committees are of the view that States should ensure that their legislation, policies, measures and practices guarantee child-sensitive due process in all migration and asylum administrative and judicial proceedings affecting the rights of children and/or those of their parents.” Council of EuropeCommittee of Ministers Committee of Ministers Committee of Ministers 66. The relevant parts of Recommendation of the Committee of Ministers CM/Rec(2019)11 of March 2020, entitled “Effective guardianship for unaccompanied and separated children in the context of migration”, state as follows: “III. Guiding principles for an effective guardianship system Principle 1 – Protection of the rights of unaccompanied and separated children in migration through guardianship States should have in place an effective system of guardianship which takes into account the specific needs and circumstances of unaccompanied and separated children in migration in order to protect and promote their rights and secure their best interests. Principle 2 – Guardianship frameworks and measures States should adopt and implement adequate legal, policy, regulatory and/or administrative frameworks to ensure the provision of guardianship for unaccompanied and separated children in migration. Principle 3 – Appointment or designation of guardians without undue delay States should ensure that an unaccompanied or separated child in migration has a guardian appointed or designated without undue delay, taking into account individual characteristics, to provide support to the child until the age of majority, and that care and support are available through guardianship or other means for a transitional period after reaching 18 years of age, as may be deemed appropriate in specific situations. Principle 4 – Legal responsibilities and tasks of guardians States should take measures to empower guardians to inform, assist, support and, where provided by law, represent unaccompanied and separated children in migration in processes affecting them, to safeguard their rights and best interests and to act as a link between the child and the authorities, agencies and individuals with responsibilities for them. States should ensure that guardians enjoy the independence and impartiality appropriate to their role. Principle 5 – Information, access to justice and remedies, including child-friendly complaint mechanisms States should ensure that unaccompanied and separated children in migration are provided with relevant information and advice, and that they have access to an independent complaint mechanism and remedies to effectively exercise their rights or act upon violations of their rights. Principle 6 – Institutional measures States should ensure that a competent authority is in place with responsibility for the management of guardianship for unaccompanied and separated children in migration taking into account the manner in which responsibilities for guardianship are organised in member States. Principle 7 – Resources, recruitment, qualifications and training States should allocate adequate resources to ensure effective guardianship for unaccompanied and separated children in migration, including ensuring that guardians are adequately screened, reliable, qualified and supported throughout their mandate. Principle 8 – Co-operation and co-ordination at national level States should, in accordance with their domestic systems, establish mechanisms and take measures to ensure effective co-operation and co-ordination between people exercising responsibilities towards unaccompanied and separated children in migration, and the guardian and/or guardianship authority. Principle 9 – International co-operation States should rapidly, constructively and effectively provide the widest range of international co-operation in relation to unaccompanied and separated children in migration, including for family tracing and identifying and implementing sustainable, rights-based solutions, and involve in appropriate ways their guardianship authority and/or guardians.” Parliamentary Assembly 67. The relevant material of the Parliamentary Assembly of the Council of Europe reads as follows: (a) Resolution 1810 (2011) “Unaccompanied children in Europe: issues of arrival, stay and return”, 15 April 2011 “... 5. The Assembly believes that child protection rather than immigration control should be the driving concern in how countries deal with unaccompanied children. With this in mind, it establishes the following ... principles, which it invites member states to observe and work together to achieve: 5.1. unaccompanied children must be treated first and foremost as children, not as migrants; 5.2. the child’s best interests must be a primary consideration in all actions regarding the child, regardless of the child’s migration or residence status; ... 5.5. every unaccompanied child should be provided immediately with a guardian mandated to safeguard his or her best interest. The legal guardian should be independent and should have the necessary expertise in the field of childcare. Every guardian should receive regular training and undergo regular and independent check-ups/monitoring; 5.6. legal, social and psychological assistance should be provided without delay to unaccompanied children. Children should be informed immediately upon arrival or interception, individually and in a language and form that they can understand, about their right to protection and assistance, including their right to seek asylum or other forms of international protection, and the necessary procedures and their implications; 5.7. all interviews with an unaccompanied child concerning his or her personal details and background should be conducted individually by specialised and well-trained staff and in the presence of the child’s guardian; 5.8. access to asylum and international protection procedures must be made unconditionally available to all unaccompanied children. A harmonised, child-sensitive asylum system needs to be established, including procedures that take into consideration the additional difficulties children may have in withstanding trauma and in expressing coherently what has happened to them and their child-specific experiences of persecution. Asylum applications by unaccompanied children should be given priority and processed within the shortest appropriate time frame, while allowing children sufficient time to understand and prepare for the process. All unaccompanied children in asylum proceedings must be represented by a lawyer in addition to a guardian, provided free of charge by the state and be able to challenge before a court decisions regarding their protection claims; 5.9. no detention of unaccompanied children on migration grounds should be allowed. Detention should be replaced with appropriate care arrangements, preferably foster care, with living conditions suitable for children’s needs and for the appropriate period of time. Where children are accommodated in centres, they must be separated from adults; 5.10. age assessment should only be carried out if there are reasonable doubts about a person being underage. The assessment should be based on the presumption of minority, involve a multidisciplinary evaluation by an independent authority over a period of time and not be based exclusively on medical assessment. Examinations should only be carried out with the consent of the child or his or her guardian. They should not be intrusive and should comply with medical ethical standards. The margin of error of medical and other examinations should be clearly indicated and taken into account. If doubts remain that the person may be underage, he or she should be granted the benefit of the doubt. Assessment decisions should be subject to administrative or judicial appeal; 5.11. the child’s views should be heard and given due weight in all relevant procedures, in accordance with his or her age and maturity. Administrative and judicial procedures within member states should be conceived and applied in a child-friendly manner ...” (b) Recommendation no. 1985 (2011) “Undocumented migrant children in an irregular situation: a real cause of concern”, 7 October 2011 “... 1. A child is first, foremost and only, a child. Only after this may he or she be seen as a migrant. This, together with the need to take into account the best interest of the child, as stipulated by Article 3 of the United Nations Convention on the Rights of the Child, and the requirement not to discriminate between children, should be the starting point of any discussion about undocumented migrant children. The issue of migratory status can only ever be a secondary consideration. 2. Undocumented migrant children are triply vulnerable: as migrants, as persons in an undocumented situation and as children. ... 9. Bearing in mind the need for a firm legislative basis and implementation of the laws in practice, the Assembly recommends that member states: ... 9.4.7. where a doubt exists as to the age of the child, the benefit of the doubt should be given to that child ...” (c) Resolution no. 1996 (2014) “Migrant children: what rights at 18?”, 23 May 2014 “... 3. The Parliamentary Assembly observes that there is no legal instrument, or even consensus, with regard to procedures for assessing a person’s age and stresses the need to apply the benefit of the doubt, bearing in mind the higher interest of the child. ... 10. In view of the above, the Assembly calls on member States of the Council of Europe to: 10.1. take due account of the specific situation of unaccompanied young migrants who are reaching adulthood, bearing in mind the higher interest of the child; 10.2. give young migrants the benefit of the doubt when assessing their age and ensure that such assessment is made with their informed consent ...” (d) Resolution no. 2020 (2014) on the alternatives to immigration detention of children, 3 October 2014 “... 9. The Assembly considers that it is urgent to put an end to the detention of migrant children and that this requires concerted efforts from the relevant national authorities. The Assembly therefore calls on the member States to: ... 9.4. ensure that children are treated as children first and foremost, and that persons who claim to be children are treated as such until proven otherwise; 9.5. develop child-friendly age-assessment procedures for migrant children ...” (e) Resolution 2136 (2016) on harmonising the protection of unaccompanied minors in Europe, 13 October 2016 “... 5. The Assembly recalls that the general principle of respect for migrant minors’ rights first and foremost as children implies that they should benefit from special protection, including social and health care which ensure their physical and psychological integrity and development, sufficient and child-friendly information, education and empowerment. On observation of the situation in member States, it is clear that these conditions are far from being systematically guaranteed for unaccompanied migrant minors. ... 8.2.5. in cases where a child’s age cannot be established by identity documents and only where there is doubt as to the individual’s status as a minor, carrying out early and non-intrusive age assessment in full respect for the dignity and integrity of children. The procedure should be multidisciplinary and carried out by independent professionals, familiar with their ethnic, cultural and developmental characteristics. Similar principles should apply when there is a dispute over the country of origin; 8.2.6. improving or introducing accelerated asylum application procedures for unaccompanied minors, including the early designation of sufficiently trained guardians and legal representatives who can assist children and who are each allocated a small number of migrant children ...” (f) Parliamentary Assembly: Resolution no. 2195 (2017) on Child-friendly age assessment for unaccompanied migrant children, 24 November 2017 “... 2. Age assessment is a process by which authorities seek to establish the chronological age, or age range, of a person, or determine whether an individual is an adult or a child. Currently there is no process of assessment, medical or otherwise, which can determine the exact age of an individual with 100% accuracy. There is also considerable variation in the methods and quality of age assessments undertaken in European States ... ... 6. The many methods of age assessment used in Europe reflect the lack of a harmonised approach and agreed method. The Assembly believes that the development of a child-sensitive, holistic model of age assessment would enable European States to meet the needs of unaccompanied or separated children. It therefore calls on member States to: 6.1. conduct case-by-case, reliable age assessment of unaccompanied migrant children only in cases of serious doubt about the child’s age and as a last resort, in the best interests of the child; 6.2. provide unaccompanied migrant children with reliable information about age-assessment procedures in a language that they understand, so that they can fully understand the different stages of the process they are undergoing and its consequences; 6.3. appoint a guardian to support each unaccompanied migrant child individually during the age-assessment procedure; 6.4. ensure that an unaccompanied migrant child or his or her representative can challenge the age-assessment decision through appropriate administrative or judicial appeal channels; 6.5. use only as a last resort dental or wrist x-ray examinations and all other invasive medical procedures for the purpose of determining the age of unaccompanied or separated migrant children; 6.6. ensure that all medical examinations are sensitive to the child’s gender, culture and vulnerabilities and that the interpretation of results takes into account the child’s national and social background as well as previous experiences; 6.7. prohibit, in all situations, the use of physical sexual maturity examinations for the purpose of determining the age of unaccompanied and separated migrant children; 6.8. prohibit the detention of unaccompanied or separated children who are awaiting or undergoing age assessment, and always apply the margin of error in favour of the person so that the lowest age in the margin determined by the assessment is recorded as the person’s age; 6.9. identify and provide alternative accommodation options for children awaiting or undergoing age assessment, with a view to avoiding the detention of children during disputes about age, including by temporary placement in centres for children where appropriate safeguards should be in place to protect them and other children in the centres; 6.10. support and promote the development of a single, holistic model of age assessment in Europe, based on the presumption that the person is a minor; 6.11. whenever possible, ensure that the procedure of age assessment is carried out by professionals acquainted with the children’s ethnic, cultural and developmental characteristics. ...” (g) Parliamentary Assembly: Resolution no. 2449(2022) on Protection and alternative care for unaccompanied and separated migrant and refugee children, 22 June 2022 “...6. The Assembly underlines that all member States should adopt a common approach whereby unaccompanied and separated migrant and refugee children are, first and foremost, considered as children. This entails ensuring that their best interest is the primary consideration, irrespective of their migration status in the country concerned. In this context, member States must ensure that unaccompanied and separated migrant and refugee children benefit from: 6.1. all due child protection safeguards, including adequate and immediate identification and registration of their identity and legal, family and social situation; 6.2. a robust and gender sensitive assessment of their immediate protection, support and care needs; particular attention should be paid to victims of violence, abuse and human trafficking as well as to children with special needs including medical and psychological needs; 6.3. the immediate appointment of a guardian, who will act to protect the child’s best interest and link the child to required services, while searching for the child’s parents and family members; 6.4. an exhaustive assessment and determination of their best interest by their guardians, child protection services or competent courts where necessary; 6.5. access to education; governments must provide for the integration of unaccompanied migrant minors in the field of education, ensure their learning process and facilitate their link with school and with other children of their age; 6.6. child-sensitive age-assessment procedures, which should only be carried out if there are serious doubts about a person’s age, and which should always be carried out in the best interests of the child, and be subject to independent monitoring; the development of a single model of age assessment in Europe, based on the presumption that the person is a minor; systematic application of the margin of error in favour of the person concerned, so that the lowest age in the margin determined by the assessment is recorded as the person’s age; and access to effective remedies. 7. Furthermore, the Assembly underlines that member States are legally responsible for unaccompanied and separated migrant and refugee children within their territory in accordance with Article 8 of the European Convention on Human Rights and, therefore, should offer solid child protection systems, which include strong co-ordination between the competent child protection and migration bodies as well as with other authorities and relevant civil society. Appropriate and sustainable budgeting and investment in human and other resources can ensure adequate and gender sensitive protection and care...” The Council of Europe Commissioner for Human Rights – “Realising the right to family reunification of refugees in Europe”, February 2017 68. The relevant parts read as follows: “... 8. Carry out age assessments only if there are reasonable doubts about a person being a minor. If doubts remain that the person may be underage, he or she should be granted the benefit of the doubt. Assessment decisions should be subject to administrative or judicial appeal. 9. Age assessments based on medical evidence alone have proven to be ethically dubious and inadequate for determining a person’s actual age. Age assessments should rather involve a multidisciplinary evaluation by an independent authority over a period of time and not be based exclusively on medical assessment. 10. Where there is a medical component to a multidisciplinary age assessment, examinations should only be carried out with the consent of the child or his or her guardian. Examinations should not be intrusive and should comply with medical and other pertinent ethical standards. The margin of error of medical and other examinations should be clearly indicated and taken into account. ...” “Thematic Report on migrant and refugee children” prepared by the Special Representative of the Secretary General on migration and refugees (SRSG), 10 March 2017 69. This report follows four fact-finding missions held by the SRSG to Greece and North Macedonia, Turkey, northern France (Calais and Grande-Synthe) and Italy. It was published following the Council of Europe Secretary General’s proposals for priority actions in the context of “Protecting children affected by the refugee crisis: a shared responsibility”. The relevant parts read as follows: “The United Nations Children’s Fund (UNICEF) has noted that almost one child in ten lives in a country affected by armed conflict and more than 400 million children live in extreme poverty (UNICEF June 2016). Such harsh circumstances have led to half of the world’s displaced now being children under the age of 18 (UNHCR Global Trends 2015). ... According to figures from Eurostat and the European Parliamentary Research Service (EPRS), around 30% of asylum seekers arriving in Europe in the last two years were children. Nearly 70% of these children were fleeing conflict in Syria, Afghanistan and Iraq. The number of unaccompanied children who applied for asylum in the European Union reached 96,465 in 2015 and they accounted for almost one quarter of all asylum applicants under 18 years of age ... Identification and age assessment In order to access special protection and assistance measures, unaccompanied children must be identified and referred to child protection authorities. Without proper identification procedures in place, children are at risk of being treated like adults and placed in detention, as witnessed in the field. Therefore, age assessment measures are necessary when an individual’s stated age is disputed. However, as observed, such measures are not always comprehensive because psycho-social aspects appear to be neglected. The Committee on the Rights of the Child of the United Nations advises that age assessment measures should be multi-disciplinary and holistic (CRC General Comment No. 6) and should be carried out with appropriate safeguards. Registration and guardianship Following identification, children and families should be registered. Unaccompanied and separated children, as well as age-disputed individuals, should have a guardian appointed as soon as possible. As observed in the field, unaccompanied children are not always identified, registered and provided with a guardian. Without a guardian and suitable care, such children may be exposed to serious protection risks, such as sexual exploitation, and are more likely to go missing. Until a guardian is appointed, there is often a vacuum in terms of the child’s ability to access and to enjoy protection, particularly in countries where children need guardians in order to complete administrative procedures, including applications for asylum and requests for relocation and family reunification. While guardianship practices vary across Europe, good practice standards do exist ...” The European Social Charter 70. In its decision of 15 June 2018 ( EUROCEF v. France, complaint no. 114/2015), the European Committee of Social Rights found, among other things, that “medical age assessments as currently applied can have serious consequences for minors and that the use of bone testing to determine the age of unaccompanied foreign minors is inappropriate and unreliable. The use of such testing therefore violates Article 17 § 1 of the [European Social] Charter”. 71. In its 2019 Conclusions, the European Committee of Social Rights highlighted the following with regard to the right of children and young persons to social, legal and economic protection (Article 17 of the [European Social] Charter ): “ ... An issue that was considerably developed during the cycle was the right to assistance. The Committee is increasingly concerned about the treatment of children in an irregular migrant situation unaccompanied or not and asylum seeking children. In particular it stated that the detention of such children cannot be considered as being in their best interests and States Parties should find alternatives to detention. Further accommodation must be appropriate and in particular safe, in order to protect this vulnerable group from violence and exploitation. In the respect it found two countries not to be in conformity on the ground of the inadequate and often unsafe accommodation of unaccompanied migrant children or the inadequate protection from violence and abuse (Greece, Hungary). The Committee also raised a question regarding age assessments and bone testing. It noted that the use of bone testing in order to assess the age of unaccompanied children is inappropriate and unreliable. It asked whether the state uses bone testing to assess age and in what situations the state does so. Should the state carry out such testing, the Committee asked what potential consequences such testing may have (e.g., can a child be excluded from the child protection system on the sole basis of the outcome of such a test) ...” Council of Europe Greta (Group of Experts on Action against Trafficking in Human Being) reports 72. While noting that the following sources concern trafficking in human beings, which is not per se the subject matter of the present case, the Court acknowledges that some of the principles referred to therein are worth citing in the present context. (a) Report concerning the implementation of the Council of Europe Convention on Action against Trafficking in Human Beings by Italy (first evaluation round), published on 22 September 2014, GRETA(2014)18 “...135. GRETA urges the Italian authorities to ensure that all victims of trafficking are properly identified and can benefit from the assistance and protection measures contained in the Convention, in particular by: ... - taking steps to address the problem of disappearance of unaccompanied foreign children by providing suitable safe accommodation and assigning adequately trained legal guardians; - developing age assessment tools and effectively implement the presumption and the measures foreseen in Article 10, paragraph 3, of the Convention when the age of the victim is uncertain and the measures foreseen in Article 10, paragraph 4, of the Convention if an unaccompanied child is identified as a victim of trafficking; ...” (b) Report on Italy under Rule 7 of the Rules of Procedure for evaluating implementation of the Council of Europe Convention on Action against Trafficking in Human Beings, published on 30 January 2017, GRETA (2016)29 “...74. GRETA is seriously concerned by the fact that unaccompanied children disappear within a few days of being placed in reception centres. In the context of quick disappearances, it is not possible to establish whether the child is already in the process of being trafficked and what are his/her concrete individual protection needs, including that of international protection. GRETA once again urges the Italian authorities to take steps to address the problem of disappearance of unaccompanied children, in particular by: - providing enhanced safeguarding measures in reception facilities specialised for children, with adequately trained staff; - ensuring that unaccompanied children are assigned a legal guardian, as expeditiously as possible, and providing adequate training to legal guardians and foster families to ensure that the best interests of the child are effectively protected, in accordance with Article 10, paragraph 4, of the Convention. 75. Further, GRETA considers that the Italian authorities should review the age assessment procedures, ensuring that the best interests of the child are effectively protected and that the benefit of the doubt is given in cases of age disputes and special protection measures are provided, in accordance with Article 10, paragraph 3, of the Convention, and taking into account the requirements of the UN Convention on the Rights of the Child and General Comment No. 6 of the Committee on the Rights of the Child...” (c) Report concerning the implementation of the Council of Europe Convention on Action against Trafficking in Human Beings by Italy (second evaluation round), published 25 January 2019, GRETA(2018)28 “...48. Guardia di Finanza organises training for first-line staff dealing with emergencies related to irregular migration. In 2017, five training initiatives, both at central and peripheral level, were organised. In the training plan for 2018, there are also five training initiatives envisaged in the form of e-learning for first-line staff (a total of 1 600 persons). 49. In collaboration with the Ministry of the Interior, UNHCR has provided training on the identification of victims of THB among asylum seekers to members of the Territorial Commissions dealing with asylum applications, on the basis of the new guidelines for the identification of THB victims among asylum-seekers (see paragraph 150). In 2017, 11 training workshops were organised throughout the territory of Italy. In 2018, four training sessions for members of Territorial Commissions were organised (in Milan, Brescia, Perugia and Cagliari) and another four were scheduled by the end of 2018 (in Foggia, Reggio Calabria, Trapani and Trieste). Since the beginning of the project almost 230 members of Territorial Commissions, 70 interpreters and 285 anti-trafficking personnel have been trained. Further, the subject of human trafficking was one of the focuses of the training organised by the National Commission for 250 new members of Territorial Commissions. The National Commission for the Right to Asylum and UNHCR, together with the High Council for the Judiciary, organised in 2017 and 2018 joint training of Presidents of Territorial Commissions and specialised judges dealing with asylum applications. Another training on trafficking in human beings for judges of Juvenile Courts was held in Naples in May 2018. 50. Since 2017, the Department for Civil Liberties and Immigration of the Ministry of the Interior, with the support of EASO, has delivered training on the reception and protection of unaccompanied children to staff of first-line reception centres, Prefectures, and municipal police, health and social services. Eight trainings were delivered in 2017 and another six in 2018, including trainers from IOM and UNHCR. Several sessions were dedicated to children with special reception needs, including victims of trafficking. Further, EASO presented its tool for identification of persons with special needs. 51. Further, in the framework of the project ADITUS which runs until the end of 2019, IOM implements training for staff working at facilities for asylum seekers and staff of the Prefectures involved in the management of the phenomenon of trafficking and exploitation. Training has already taken place in the regions of Piedmont, Veneto, Treviso, Liguria, Emilia Romagna, Tuscany, Lazio, Molise, Campania, Apulia, Calabria, Sicily and Sardinia (see also paragraph 148)...” Council of Europe Strategy for the Rights of the Child (2016-2021), March 2016 73. This document set the priorities of the Council of Europe in the area of protection and promotion of the rights of the child for the period 2016 to 2021. The relevant parts read as follows: “7. Migration 22. Children on the move and otherwise affected by migration are one of the most vulnerable groups in Europe today. In some countries, they face limited access to justice, education, social and health services. While unaccompanied children face a particularly precarious situation, migrant children at large even when accompanied by parents often suffer persistent violations of their human rights. The principle of the best interests of the child is too often neglected in asylum and immigration procedures. The use of detention instead of child welfare protection, failures in appointing effective guardianship, family separation and demeaning age-assessment procedures are emblematic of the different ways in which migrant children fall through loopholes in child protection frameworks. They are also at high risk of trafficking and exploitation. Children left behind when their parents migrate, as well as stateless children are likewise at a heightened risk of finding their rights violated.” Other Council of Europe instruments 74. Further relevant information concerning minor migrants’ rights are illustrated in the following reports: “Age assessment: Council of Europe member States’ policies, procedures and practices respectful of children’s rights in the context of migration”, September 2017, and the Roundtable conference report “Child-friendly information for children in migration”, Council of Europe 29-30 November 2017. EUROPEAN UNION LAWEU Directives and ResolutionEU Directive 2005/85 EU Directives and ResolutionEU Directive 2005/85 EU Directive 2005/85 EU Directives and ResolutionEU Directive 2005/85 EU Directive 2005/85 EU Directive 2005/85 75. The relevant Article of this Directive states as follows: Article 17 - Guarantees for unaccompanied minors “1. With respect to all procedures provided for in this Directive and without prejudice to the provisions of Articles 12 and 14, Member States shall: (a) as soon as possible take measures to ensure that a representative represents and/or assists the unaccompanied minor with respect to the examination of the application. This representative can also be the representative referred to in Article 19 of Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers; (b) ensure that the representative is given the opportunity to inform the unaccompanied minor about the meaning and possible consequences of the personal interview and, where appropriate, how to prepare himself/herself for the personal interview. Member States shall allow the representative to be present at that interview and to ask questions or make comments, within the framework set by the person who conducts the interview. Member States may require the presence of the unaccompanied minor at the personal interview, even if the representative is present. 2. Member States may refrain from appointing a representative where the unaccompanied minor: (a) will in all likelihood reach the age of maturity before a decision at first instance is taken; or (b) can avail himself, free of charge, of a legal adviser or other counsellor, admitted as such under national law to fulfil the tasks assigned above to the representative; or (c) is married or has been married. 3. Member States may, in accordance with the laws and regulations in force on 1 December 2005, also refrain from appointing a representative where the unaccompanied minor is 16 years old or older, unless he/she is unable to pursue his/her application without a representative. 4. Member States shall ensure that: (a) if an unaccompanied minor has a personal interview on his/her application for asylum as referred to in Articles 12, 13 and 14, that interview is conducted by a person who has the necessary knowledge of the special needs of minors; (b) an official with the necessary knowledge of the special needs of minors prepares the decision by the determining authority on the application of an unaccompanied minor. 5. Member States may use medical examinations to determine the age of unaccompanied minors within the framework of the examination of an application for asylum. In cases where medical examinations are used, Member States shall ensure that: (a) unaccompanied minors are informed prior to the examination of their application for asylum, and in a language which they may reasonably be supposed to understand, of the possibility that their age may be determined by medical examination. This shall include information on the method of examination and the possible consequences of the result of the medical examination for the examination of the application for asylum, as well as the consequences of refusal on the part of the unaccompanied minor to undergo the medical examination; (b) unaccompanied minors and/or their representatives consent to carry out an examination to determine the age of the minors concerned; and (c) the decision to reject an application for asylum from an unaccompanied minor who refused to undergo this medical examination shall not be based solely on that refusal. The fact that an unaccompanied minor has refused to undergo such a medical examination shall not prevent the determining authority from taking a decision on the application for asylum. L 326/22 Official Journal of the European Union 13.12.2005 EN The best interests of the child shall be a primary consideration for Member States when implementing this Article.” EU Directive 2011/95 (the so-called “Recast Qualification Directive”, “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”) 76. The relevant parts of this Directive read as follows: Article 31 - Unaccompanied minors “1. As soon as possible after the granting of international protection Member States shall take the necessary measures to ensure the representation of unaccompanied minors by a legal guardian or, where necessary, by an organisation responsible for the care and well-being of minors, or by any other appropriate representation including that based on legislation or court order. 2. Member States shall ensure that the minor’s needs are duly met in the implementation of this Directive by the appointed guardian or representative. The appropriate authorities shall make regular assessments. 3. Member States shall ensure that unaccompanied minors are placed either: (a) with adult relatives; or (b) with a foster family; or (c) in centres specialised in accommodation for minors; or (d) in other accommodation suitable for minors. In this context, the views of the child shall be taken into account in accordance with his or her age and degree of maturity. ... 6. Those working with unaccompanied minors shall have had and continue to receive appropriate training concerning their needs.” EU Directive 2013/32 (the so-called “Asylum Procedures Directive”, “Common procedures for granting and withdrawing international protection”) 77. The relevant parts of this Directive read as follows: Article 25 - Guarantees for unaccompanied minors “1. ... Member States shall: (a) take measures as soon as possible to ensure that a representative represents and assists the unaccompanied minor to enable him or her to benefit from the rights and comply with the obligations provided for in this Directive. The unaccompanied minor shall be informed immediately of the appointment of a representative. The representative shall perform his or her duties in accordance with the principle of the best interests of the child and shall have the necessary expertise to that end. The person acting as representative shall be changed only when necessary. Organisations or individuals whose interests conflict or could potentially conflict with those of the unaccompanied minor shall not be eligible to become representatives. The representative may also be the representative referred to in Directive 2013/33/EU; (b) ensure that the representative is given the opportunity to inform the unaccompanied minor about the meaning and possible consequences of the personal interview and, where appropriate, how to prepare himself or herself for the personal interview. Member States shall ensure that a representative and/or a legal adviser or other counsellor admitted or permitted as such under national law are present at that interview and have an opportunity to ask questions or make comments, within the framework set by the person who conducts the interview. Member States may require the presence of the unaccompanied minor at the personal interview, even if the representative is present. 2. Member States may refrain from appointing a representative where the unaccompanied minor will in all likelihood reach the age of 18 before a decision at first instance is taken. 3. Member States shall ensure that: (a) if an unaccompanied minor has a personal interview on his or her application for international protection as referred to in Articles 14 to 17 and 34, that interview is conducted by a person who has the necessary knowledge of the special needs of minors; (b) an official with the necessary knowledge of the special needs of minors prepares the decision by the determining authority on the application of an unaccompanied minor. 4. Unaccompanied minors and their representatives shall be provided, free of charge, with legal and procedural information as referred to in Article 19 also in the procedures for the withdrawal of international protection provided for in Chapter IV. 5. Member States may use medical examinations to determine the age of unaccompanied minors within the framework of the examination of an application for international protection where, following general statements or other relevant indications, Member States have doubts concerning the applicant’s age. If, thereafter, Member States are still in doubt concerning the applicant’s age, they shall assume that the applicant is a minor. Any medical examination shall be performed with full respect for the individual’s dignity, shall be the least invasive examination and shall be carried out by qualified medical professionals allowing, to the extent possible, for a reliable result. Where medical examinations are used, Member States shall ensure that: (a) unaccompanied minors are informed prior to the examination of their application for international protection, and in a language that they understand or are reasonably supposed to understand, of the possibility that their age may be determined by medical examination. This shall include information on the method of examination and the possible consequences of the result of the medical examination for the examination of the application for international protection, as well as the consequences of refusal on the part of the unaccompanied minor to undergo the medical examination; (b) unaccompanied minors and/or their representatives consent to a medical examination being carried out to determine the age of the minors concerned; and (c) the decision to reject an application for international protection by an unaccompanied minor who refused to undergo a medical examination shall not be based solely on that refusal. The fact that an unaccompanied minor has refused to undergo a medical examination shall not prevent the determining authority from taking a decision on the application for international protection. 6. The best interests of the child shall be a primary consideration for Member States when implementing this Directive. ...” EU Directive 2013/33 (the so-called “recast Reception Conditions Directive”, “Laying down standards for the reception of applicants for international protection”) 78. The relevant parts of this Directive read as follows: Article 23 - Minors “1. The best interests of the child shall be a primary consideration for Member States when implementing the provisions of this Directive that involve minors. Member States shall ensure a standard of living adequate for the minor’s physical, mental, spiritual, moral and social development. 2. In assessing the best interests of the child, Member States member States shall in particular take due account of the following factors: (a) family reunification possibilities; (b) the minor’s well-being and social development, taking into particular consideration the minor’s background; (c) safety and security considerations, in particular where there is a risk of the minor being a victim of human trafficking; (d) the views of the minor in accordance with his or her age and maturity. 3. Member States shall ensure that minors have access to leisure activities, including play and recreational activities appropriate to their age within the premises and accommodation centres. ...” Article 24 - Unaccompanied minors “1. Member States shall as soon as possible take measures to ensure that a representative represents and assists the unaccompanied minor to enable him or her to benefit from the rights and comply with the obligations provided for in this Directive. The unaccompanied minor shall be informed immediately of the appointment of the representative. The representative shall perform his or her duties in accordance with the principle of the best interests of the child, as prescribed in Article 23(2), and shall have the necessary expertise to that end. In order to ensure the minor’s well-being and social development referred to in Article 23(2)(b), the person acting as representative shall be changed only when necessary. Organisations or individuals whose interests conflict or could potentially conflict with those of the unaccompanied minor shall not be eligible to become representatives. Regular assessments shall be made by the appropriate authorities, including as regards the availability of the necessary means for representing the unaccompanied minor. 2. Unaccompanied minors who make an application for international protection shall, from the moment they are admitted to the territory until the moment when they are obliged to leave the Member State in which the application for international protection was made or is being examined, be placed: (a) with adult relatives; (b) with a foster family; (c) in accommodation centres with special provisions for minors; (d) in other accommodation suitable for minors. Member States may place unaccompanied minors aged 16 or over in accommodation centres for adult applicants, if it is in their best interests, as prescribed in Article 23(2). As far as possible, siblings shall be kept together, taking into account the best interests of the minor concerned and, in particular, his or her age and degree of maturity. Changes of residence of unaccompanied minors shall be limited to a minimum. 3. Member States shall start tracing the members of the unaccompanied minor’s family, where necessary with the assistance of international or other relevant organisations, as soon as possible after an application for international protection is made, whilst protecting his or her best interests. In cases where there may be a threat to the life or integrity of the minor or his or her close relatives, particularly if they have remained in the country of origin, care must be taken to ensure that the collection, processing and circulation of information concerning those persons is undertaken on a confidential basis, so as to avoid jeopardising their safety. 4. Those working with unaccompanied minors shall have had and shall continue to receive appropriate training concerning their needs, and shall be bound by the confidentiality rules provided for in national law, in relation to any information they obtain in the course of their work.” Resolution of the Council of the European Union of 26 June 1997 on unaccompanied minors who are nationals of third countries 79. The relevant parts of this Resolution read as follows: “Article 4 Asylum procedure ...3. (a) In principle, an unaccompanied asylum-seeker claiming to be a minor must produce evidence of his age. (b) If such evidence is not available or serious doubt persists, Member States may carry out an assessment of the age of an asylum-seeker. Age assessment should be carried out objectively. For such purposes, Member States may have a medical age-test carried out by qualified medical personnel, with the consent of the minor, a specially appointed adult representative or institution. ...Article 6 Final provisions 1. Member States should take account of these guidelines in the case of all proposals for changes to their national legislations. In addition, Member States should strive to bring their national legislations into line with these guidelines before 1 January 1999. 2. Member States shall remain free to allow for more favourable conditions for unaccompanied minors.” EU Action Plan on Unaccompanied Minors 2010-14 80. This Action Plan aims at providing concrete responses to the challenges posed by the arrival of significant numbers of unaccompanied minors on EU territory. 81. It recognises that the EU has a significant role in this matter and aimed at a global and integrated approach across its policies. It addressed the challenges of insufficient data, and then three main strands for action: prevention, regional protection programmes, reception and identification of durable solutions. 82. Some priorities emphasised in the Action Plan include achieving higher standards of protection for unaccompanied children in EU law and evaluating the need to introduce targeted amendments or a specific instrument setting down common standards on reception and assistance for all unaccompanied minors regarding, among other things, guardianship, legal representation, access to accommodation and care, initial interviews and education. EASO (EU European Asylum Support Office) [7] 83. The report “Age assessment practice in Europe” (2013) offers practical guidance, recommendations and tools on the implementation of the best interests of the child during age assessment. It promotes a multidisciplinary and holistic approach. 84. It focuses, among other things, on the principle of the benefit of the doubt, the right of the individual to information and to express his or her views, the importance of designating a legal guardian and representative and the need for the opportunity to challenge age-assessment results. 85. The “Practical guide on age assessment” second edition (2018) builds upon the information on the age-assessment process and methods analysed in the EASO 2013 report. 86. In addition to the content of the latter, the guide highlights that there is no age-assessment method that can provide absolutely accurate results in respect of the chronological age of a person, and that all methods have a margin of error. As regards carpal (hand/wrist) maturity tests, the most practised group of tests among member States, the EASO stresses that “socioeconomic status is a key factor that affects the rate of ossification” leading to underestimating a person’s age. Dental observation is considered “not designed to estimate chronological age”, whilst physical development assessment is “the least accurate”. 87. The EASO guide also points out the need to conduct age assessment using the least intrusive method. All X-ray examinations are physically intrusive since they use ionising radiation that maybe harmful. There is also opposition on ethical grounds to using radiation if it is not for medical purposes. Sexual maturity examinations are of a highly intrusive nature, conflicting with the rights of dignity, integrity and privacy, and should be precluded for age-assessment purposes. Summary Report – Separated, asylum-seeking children in European Union member States, (FRA) 2010 88. The European Union Agency for Fundamental Rights (FRA) carried out a study on living conditions, provisions and decision-making procedures in respect of asylum-seeking children in twelve EU member States through child-centred participatory research. 89. It identified the good practices and shortcomings of the existing systems in relation to aspects such as accommodation, access to healthcare, education and training, legal representation, the role of social workers, age assessment, family tracing and reunification. 90. As regards age assessment, the comparative report reads as follows: “Age assessment should only be used where there are grounds for serious doubt of an individual’s age. If medical examinations are considered essential, the child must give his/her informed consent to the procedure after any possible health and legal consequences have been explained in a simple, child-friendly way and in a language that the child understands. Age assessment should be undertaken in a gender appropriate manner by independent experts familiar with the child’s cultural background and fully respecting the child’s dignity. Recognising that age assessment cannot be precise, in cases of doubt, authorities should treat the person as a child and grant the right to appeal age assessment decisions.” Age assessment and fingerprinting of children in asylum procedures – minimum age requirements concerning children’s rights in the EU” (FRA) 2018 91. The EU Agency for Fundamental Rights mapped national legislative provisions on this matter and produced the following three recommendations with regard to age-assessment procedures: “1. In conducting an age assessment medical test, EU Member States should consider seeking the explicit consent of both the person concerned and their legal representative. 2. EU Member States should use age-assessment procedures only where there are grounds for doubting an individual’s age. They should only use medical tests if they cannot base their age assessment on other, less invasive methods, such as documents or an interview by specialised social workers. Medical tests, especially involving radiation, should be a method of last resort to establish the age of a person seeking international protection, whereas sexual maturity tests should be prohibited. Medical tests should always be carried out by qualified medical staff, adhering to all relevant medical protocols and in a gender-sensitive way, taking into consideration the cultural background of the person concerned. If Member States still have doubts about the age of the person after a medical assessment test, they should decide in favour of the person being under the age of 18 years (presumption of minority), as provided in Article 25 (5) of the Asylum Procedures Directive. 3. Persons having to undergo an age assessment medical test should be informed about the nature of the medical test and the possible health and legal consequences, especially as regards their legal status as international protection seekers. This information should be provided by competent national authorities in a child-friendly manner and in a language that they understand. To ensure that the rights of the child are respected, it is essential that before an age-assessment procedure, national authorities appoint a guardian to support and represent the person undergoing the assessment.” “Approaches to Unaccompanied Minors Following Status determination in the EU plus Norway”, Report of the European Migration Network (EMN) of the European Commission, July 2018 92. This report, produced by the EMN, focuses, in particular, on the situation of unaccompanied minors who have been granted a residence permit or issued a return decision. 93. As to the scale of unaccompanied minors in the EU, the report states that the number increased dramatically in 2015, reaching a total of 99,995 minors (an increase of 315% in comparison to the previous year) before returning to 31,975 in 2017. Germany, Sweden, Italy, Austria and Hungary received the highest number of minors applying for asylum in the EU over the 2014-17 period. The majority of these minors were boys (89%). Most of them were between the ages of 16 and 17 (65%) with only a small portion being less than 14 years old. 94. The report provides information about EU member States’ care arrangements for unaccompanied minors, including when they turn 18 years old, their accommodation, guardianship, integration and healthcare. THE LAW The part of the application lodged by Mr Moussa Camara 95. The Court reiterates that an applicant’s representative must not only supply a power of attorney or written authority (Rule 45 § 3 of the Rules of Court), but that it is also important that contact between the applicant and his or her representative be maintained throughout the proceedings. Such contact is essential both in order to learn more about the applicant’s particular situation and to confirm his or her continuing interest in pursuing the examination of his or her application (see V.M. and Others v. Belgium (striking out) [GC], no. 60125/11, § 35, 17 November 2016; Sharifi and Others v. Italy and Greece, no. 16643/09, § 124, 21 October 2014; and, mutatis mutandis, Ali v. Switzerland, 5 August 1998, § 32, Reports of Judgments and Decisions 1998 ‑ V). In the case of N.D. and N.T. v. Spain [GC] (nos. 8675/15 and 8697/15, § 73, 13 February 2020), the Court found that some cases in which the applicant’s representative had lost touch with his or her client, including in cases concerning the expulsion of aliens, 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, cited above, §§ 30-33, 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). 96. In the present case, following the Court’s request to be informed whether the applicant’s representatives were still in contact with their client, on 24 June 2021 the latter replied by letter that they had lost contact with him. The Court also notes that the representatives have not insisted that the Court nonetheless continue the examination of his application (contrast V.M. and Others, cited above, § 32). 97. In the light of the foregoing, and in the absence of any special circumstances regarding respect for the rights guaranteed by the Convention and the Protocols thereto, the Court, in accordance with Article 37 § 1 (a) of the Convention, considers that it is no longer justified to continue the examination of the application lodged by Mr Moussa Camara. 98. Accordingly, this part of the application should be struck out of the list of cases. The part of the application LODGED by mr Ousainou DarboeThe applicant’s locus standi The applicant’s locus standi The applicant’s locus standi 99. The Government pointed out that, at the time the applicant’s application was lodged, the applicant had been a minor and had not been represented by a legal guardian. He therefore had no standing in the proceedings before the Court. 100. The applicant observed that, in his case, no legal guardian had been appointed at the initiative of the national authorities, despite it being required by law, and that this in fact constituted one of the core issues of his complaints. 101. The Court has already examined cases where the power of attorney to be represented before the Court was provided by a minor applicant (see Rahimi v. Greece, no. 8687/08, 5 April 2011) or by an applicant whose age could not be determined with certainty (see Ahmade v. Greece, no. 50520/09, 25 September 2012). 102. The Court sees no reason to depart from this approach. Moreover, it is apparent from the case file that the applicant’s complaints are based, inter alia, on the fact that no representative was appointed in his case, notwithstanding his declaration that he was of minor age. 103. Even assuming that the Government’s preliminary consideration could be read as an objection of inadmissibility of the case for lack of the applicant’s locus standi, the Court concludes that their argument must be rejected. The Government’s objection of non-exhaustion of domestic remedies 104. In the framework of their observations on the merits of the applicant’s complaint under Article 13 of the Convention, the Government submitted that the applicant had had the possibility of challenging his age assessment under Article 19 of Legislative Decree no. 25 of 2008 (see paragraph 45 above), which provides as follows: “Unaccompanied minors who have expressed their intention to ask for international protection shall be provided with the necessary assistance to lodge such a request. They shall be provided with the assistance of a legal guardian at all stages of the examination of the application ...” 105. Moreover, the Government pointed out that Article 26 of the Decree stated that when the international protection request was presented by an unaccompanied minor, guardianship proceedings to appoint a legal guardian had to be opened immediately. 106. In the Government’s view, the applicant or his representative could have appealed against the applicant’s age-assessment result by challenging the decision of the guardianship judge. 107. Relying on the above-mentioned arguments, the Government concluded that the application should be declared inadmissible under Article 35 § 1 of the Convention. 108. The Court observes that on 16 January 2017 the applicant lodged an application with the Venice Regional Court to obtain the appointment of a legal guardian. On that occasion, his representatives pointed out that he had not benefited from the guarantees granted to him by domestic law as an unaccompanied minor asylum-seeker. It should also be noted that, owing to the lack of appointment of a guardian on his arrival in Italy, the applicant promptly lodged his application as soon as he received legal assistance (see paragraphs 14 and 15 above). On 19 January 2017 the guardianship judge annotated the first page of the application with the words “To be sent to the Venice police headquarters for the necessary checks”. However, following this annotation, no further communication was addressed to the applicant’s representatives with regard to the outcome of that application, nor did the Government provide any information in this regard. 109. In the light of the foregoing, the Court concludes that the applicant used, to the extent available to him, the domestic remedy pointed out by the Government, but to no avail. Accordingly, their objection should be dismissed. Alleged violation of Article 8 of the Convention 110. The applicant complained that the competent authorities had failed to recognise his rights as an unaccompanied minor asylum-seeker. He alleged that the lack of protection had amounted to a violation of his right to respect for his private life. He relied on Articles 3 and 8 of the Convention. 111. The Court, being master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 114, 20 March 2018), will examine the complaint from the standpoint of Article 8 alone, 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 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 parties’ submissions (a) The applicant 112. The applicant submitted that, despite having stated that he was a minor, he had been accommodated in an adult reception centre where he had been unable to benefit from the support and protection measures appropriate to his age. 113. He further complained of a lack of access to legal information and of difficulties in communicating his discomfort and needs, in the absence of an interpreter or cultural mediator. 114. Lastly, he drew the Court’s attention to the fact that he had been considered to be adult on the basis of an age-assessment procedure carried out in violation of the relevant provisions of national and international law. (b) The Government 115. The Government argued that the applicant had been placed in Cona as an initial and temporary reception centre in order to be identified, in accordance with the law and on the basis of their statements. He had eventually been transferred to a centre for minors, as requested by the Court in application of Rule 39 of the Rules of the Court. 116. As to the guarantees afforded to the applicant as an unaccompanied minor, the Government referred to several provisions of domestic law, including Legislative Decrees nos. 25 of 2008 and 142 of 2015, the Protocol on the identification and holistic multidisciplinary age assessment of unaccompanied minors of 2016, the Circular of the Minister of the Interior of 9 July 2007 and Prime Ministerial Decree no. 234 of 2016. The third-party interveners’ submissions (a) AIRE Centre, Dutch Council for Refugees, European Council on Refugees and Exiles (ECRE) 117. These third parties highlighted the vulnerability of minor migrants and the importance of the principle of the best interests of the child in taking all actions concerning children. This requires a special regime in respect of asylum procedures and reception conditions, distinct from that applicable to adults. 118. It was the interveners’ position that, owing to its potential impact on the mental and physical integrity of the subject, age-assessment procedures fall under the scope of Article 8 of the Convention. This includes age-assessment procedural safeguards such as information on the asylum procedure, the right of children to be heard in any judicial or administrative procedure and the need to collect their informed consent before proceeding with an age-assessment examination. (b) Défenseur des droits 119. This third party emphasised that the vulnerability of minor migrants calls for governments to ensure effective protection of their rights, including the guarantee of being appointed a guardian or legal representative, who should be independent and qualified in order to duly assist the minor. 120. Minors should be also informed about the proceedings they are undergoing, with the help of an interpreter if necessary. The Court’s assessment (a) Admissibility 121. It is not disputed between the parties that Article 8 is applicable and that the case concerns the applicant’s right to respect for his private life. The Court sees no reason to hold otherwise, in particular in view of the following reasons. 122. It should be reiterated that the positive obligation of States under Article 8 of the Convention includes the competent authorities’ duty to examine a person’s asylum request promptly, in order to ensure that his or her situation of insecurity and uncertainty is as short-lived as possible (see, mutatis mutandis, M. S.S. v. Belgium and Greece [GC], no. 30696/09, § 262, 21 January 2011). 123. The Court also observes that the concept of “private life” is a broad term which is not susceptible to exhaustive definition (see Pretty v. the United Kingdom, no. 2346/02, § 61, ECHR 2002 ‑ III). It covers the physical and psychological integrity of a person and can therefore embrace multiple aspects of the person’s identity such as, for example, gender identification, sexual orientation, name and elements relating to a person’s right to his or her image (see S. and Marper v. the United Kingdom [GC], nos. 30562/04 and 30566/04, § 66, ECHR 2008). Article 8 protects, in addition, a right to personal development and the right to establish and develop relationships with other human beings and the outside world (see, for example, Odièvre v. France [GC], no. 42326/98, § 29, ECHR 2003-III, Denisov v. Ukraine [GC], no. 76639/11, § 95, 25 September 2018 and Milićević v. Montenegro, no. 27821/16, § 54, 6 November 2018, all with further references). States’ obligations aimed to protect this right are even more important where, like in the present case, personal relationships of an unaccompanied minor are at stake, in a migration context that makes him or her particularly vulnerable. 124. The Court considers that the age of a person is a means of personal identification and that the procedure to assess the age of an individual alleging to be a minor, including its procedural safeguards, is essential in order to guarantee to him or her all the rights deriving from his or her minor status. 125. It also emphasises the importance of age-assessment procedures in the migration context. The applicability of domestic, European and international legislation protecting children’s rights starts from the moment the person concerned is identified as a child. Determining if an individual is a minor is thus the first step to recognising his or her rights and putting into place all necessary care arrangements. Indeed, if a minor is wrongly identified as an adult, serious measures in breach of his or her rights may be taken. 126. According to the “Thematic Report on migrant and refugee children” prepared by the Special Representative of the Secretary General on Migration and Refugees (SRSG), as well as the Report of the European Migration Network (EMN) of the European Commission (see paragraph 69 and paragraphs 92 et seq. above), around 30% of asylum-seekers arriving in Europe in recent years have been children. The number of unaccompanied children increased in 2015, reaching a total of 99,995 minors (an increase of 315% in comparison with the previous year) before returning to 31,975 in 2017. Italy is among the countries which received the highest number of minors applying for asylum in the EU over the 2014-17 period. 127. It follows that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. (b) Merits (i) Compliance with Article 8 of the Convention (α) General principles 128. The Court reiterates that although the object of Article 8 is essentially that of protecting an individual against arbitrary interference by the public authorities, it does not merely compel States to abstain from such interference. In addition to this primarily negative undertaking, there may be positive obligations inherent in effective respect for private and family life (see Bédat v. Switzerland [GC], no. 56925/08, § 73, ECHR 2016, and Lozovyye v. Russia, no. 4587/09, § 36, 24 April 2018). In choosing how to comply with their positive obligations, States enjoy a broad margin of appreciation (see A, B and C v. Ireland [GC], no. 25579/05, § 249, ECHR 2010). (β) The scope of the applicant’s complaint 129. The substance of the applicant’s complaint is that the State failed to take all necessary measures to protect him as a minor and ensure the procedural safeguards related to his age assessment. The Court finds it appropriate to approach the present case from the perspective of Italy’s positive obligation under Article 8 of the Convention. 130. In order to establish whether the requirements of Article 8 of the Convention were met in the present case, the Court will first acknowledge the national and international legal framework applicable at the time of the facts and, secondly, whether the authorities took reasonable steps to ensure the applicant’s procedural rights within the age-assessment procedure. 131. In this context, the Court emphasises that it is not its task to speculate on whether or not the applicant was a minor at the time of his arrival in Italy, or whether he submitted any documents to prove his age. It is however satisfied that he did declare his minor age at some point after his arrival. This is likely to have happened by the time he arrived in Cona, when a healthcare card was provided to him indicating his date of birth as 22 February 1999, meaning he was a minor at the time (see paragraph 11 above). This was not contested by the Government. It should also be noted that there is no indication that the applicant’s claims that he was a minor were unfounded or unreasonable. In addition, a possible earlier declaration may have resulted from the initial placement of the applicant in a centre for minors, something on which, however, the Government did not take a clear stance. In the light of this, the scope of the case is to know whether, under Article 8 of the Convention, the domestic authorities ensured the procedural safeguards stemming from the applicant’s status as an unaccompanied minor requesting international protection. (γ) Legal national and international sources applicable at the time of the facts 132. The Court reiterates at the outset that Law no. 47 of 2017 entered into force on 6 May 2017, thus after the facts of the case took place. This law added Article 19 bis to Legislative Decree no. 142 of 2015 (see paragraph 47 above) which introduced a social medical age assessment through a multidisciplinary approach by adequately trained professionals. This law establishes, in particular, the guarantees applicable to minor migrants and the different phases of the age-assessment procedure, taking into account the various applicable rules and elucidating the stage and type of action to be taken by the judiciary, the administration and medical staff. Moreover, the legal system has been further improved since the Juvenile Court acquired competence to issue age-assessment certificates (Legislative Decree no. 220 of 22 December 2017, see Article 19 bis of Legislative Decree no. 142 of 2015 in paragraph 47 above). The Court welcomes these legislative interventions. 133. It should nevertheless be noted that, at the time the facts of the case were taking place, domestic and EU law already provided a number of guarantees for unaccompanied minor asylum-seekers. 134. The Court refers to Article 19 of Legislative Decree no. 25 of 2008, implementing Article 17 of EU Directive 2005/85, in force at the material time, on minimum standards on procedures for granting and withdrawing refugee status (see paragraphs 45 and 75 above), which laid down guarantees for unaccompanied minors such as the assistance of a legal guardian during the international protection request, the need to obtain the individual’s consent for a non-invasive medical examination in case of doubt as to his or her minor age, the right to be informed that age can be determined through a medical examination, the type of examination to be carried out and its consequences in relation to the result of his or her request. Article 26 of the Decree provides that when the international protection request is presented by an unaccompanied minor, the proceedings must be suspended and guardianship proceedings must be opened in order to appoint a guardian for the minor. 135. Paragraphs 1 and 2 of Article 18 of Legislative Decree no. 142 of 2015, implementing EU Directives 2013/32 and 2013/33 on asylum procedures, as in force at the time of the events (see paragraph 47 above), state the primary importance of the principle of the best interests of the child while implementing reception measures, in order to ensure adequate living conditions for minors. They clarify that it is necessary to interview the minor, taking into account his or her age, level of maturity and personal development, also with a view to evaluating his or her past experience and the risk that he or she could be a victim of human trafficking, and to evaluate the possibility of family reunification. 136. The Court likewise reiterates that administrative measures also existed at the material time. In their observations on the admissibility and merits, the Government referred to several sources, including the Circular of the Minister of the Interior of 9 July 2007 (see paragraph 52 above) mentioning the margin of error inherent in the age-assessment examination of minor migrants. Moreover, the Guidelines on unaccompanied foreign minors of the Ministry of Labour and Social Policies of 19 December 2013 (see paragraph 12 above) state that age must be assessed by the competent authorities with due respect for the rights and guarantees established for minors. 137. As regards the EU law in force at the material time, the Court may simply refer to the Directives that have been mentioned (see paragraphs 75, 76, 77 and 78 above), which have been implemented in Italy, as well as to the Resolution of the Council of the European Union of 26 June 1997 (see paragraph 79 above). 138. As to Council of Europe sources, the Court reiterates, in particular, Parliamentary Assembly Resolution 1810 (2011) (see paragraph 67 above). 139. These texts clearly recognise the primary importance of the best interests of the child and of the principle of presumption of minority in respect of unaccompanied migrant children reaching Europe. 140. In particular, attention is given to the need for a child to be immediately provided with a guardian and for him or her to be assisted during the asylum proceedings. Several considerations are made in relation to medical examinations and age-assessment methods. Moreover, the margin of error inherent in medical examinations should always be taken into account. 141. Although it is not for the Court, in the context of its assessments related to Article 8 obligations, to decide on whether these national, European and international legal standards were met, the legal sources cited above show a general recognition, at the material time, of the need for special protection for unaccompanied minor migrants. Therefore, the Court will examine whether the Italian authorities granted such special protection in the context of the applicant’s situation. (δ) National authorities’ positive obligation to protect the applicant’s rights as an unaccompanied minor 142. The Court finds that the applicant’s procedural rights stemming from his status as an unaccompanied minor requesting international protection came into play in two ways in the present case, namely (i) his representation and (ii) the provision of adequate information during the age-assessment process. ‒ Appointment of a guardian and/or representative 143. Referring to the domestic and EU provisions cited above (see paragraphs 134 et seq.) in particular, the Court cannot but acknowledge that the national authorities failed to promptly provide the applicant with a legal guardian or representative. Despite having undisputedly orally expressed his wish to apply for international protection after his arrival, he was unable to request to have a guardian until his application to the Venice Regional Court on 16 January 2017. 144. The Court is thus of the view that the failure to promptly appoint a legal guardian or representative in the applicant’s case prevented him from duly and effectively submitting an asylum request. ‒ The right of the applicant to information in the framework of the age-assessment procedure 145. As a consequence of a lack of consideration for his declared status as a minor, the applicant was placed in a reception centre for adults. 146. A month later, on 27 October 2016, an X-ray examination of his left wrist and hand was carried out, without any information as to the type of age-assessment procedure he was undergoing and to its possible consequences. The applicant was then considered to be an adult. In these circumstances, the Court sees no need to examine the existence or validity of his consent to undergo a medical examination, or to assess its appropriateness (see, mutatis mutandis, Mahamed Jama v. Malta, no. 10290/13, 26 November 2015 and Abdullahi Elmi and Aweys Abubakar v. Malta, nos. 25794/13 and 28151/13, 22 November 2016). 147. It is, however, to be noted that the relevant medical report, which failed to indicate any margin of error, was not served on him. 148. The Court also notes that no judicial decision or administrative measure concluding that the applicant was of adult age was issued in his case, which made it impossible for him to lodge an appeal. 149. Once the applicant was in Cona and eventually assisted by his lawyers, he promptly filed an application with the Venice District Court to obtain the appointment of a guardian and recognition of his rights protected by the applicable domestic law as an unaccompanied minor asylum-seeker. However, no information was provided to him concerning the outcome of his application. 150. Shortly after the applicant’s Rule 39 request, the Government transferred him to an adequate facility for unaccompanied minors. There, the applicant was interviewed by psychologists and representatives of FAMI and assisted by an interpreter. Despite these positive actions, the Court cannot but observe that owing to the shortcomings in the procedural guarantees afforded to him as a minor migrant after his arrival in Italy, the applicant was not afforded the necessary tools to file an asylum request and was placed in an overcrowded adult reception centre for more than four months. (ε) Conclusion 151. As stated above, the concept of “private life” is a broad term which is not susceptible to exhaustive definition, covering both the physical and the psychological integrity of a person. This notion also includes a right to personal development and the right to establish and develop relationships with other human beings and the outside world (see paragraph 123 above with reference to the Court’s case-law). 152. In addition, it reiterates that States’ interest in foiling attempts to circumvent immigration rules must not deprive foreign minors, especially if unaccompanied, of the protection their status warrants. The protection of fundamental rights and the constraints imposed by a State’s immigration policy must therefore be reconciled (see Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, no. 13178/03, § 81, ECHR 2006 XI). 153. In the present case, the Italian authorities failed to apply the principle of presumption of minor age, which the Court deems to be an inherent element of the protection of the right to respect for private life of a foreign unaccompanied individual declaring to be a minor. 154. While the national authorities’ assessment of the age of an individual might be a necessary step in the event of doubt as to his or her minority, the principle of presumption implies that sufficient procedural guarantees must accompany the relevant procedure. 155. At the time of the facts of the case, these safeguards clearly included, under both domestic and EU law, the appointment of a legal representative or guardian, access to a lawyer and informed participation in the age-assessment procedure of the person whose age was in doubt. The guarantees put in place by EU and international law have gone further to ensure a holistic and multidisciplinary age-assessment procedure. The Court welcomes this development, as well as the implementation by the domestic authorities, subsequent to the facts of the present case, of a legal system which appears to be fully consistent with higher international standards. 156. As regards the applicant’s situation, the fact remains that he did not benefit from the minimum procedural guarantees, and that his placement in an adult reception centre for more than four months must have affected his right to personal development and to establish and develop relationships with others. This could have been avoided if the applicant had been placed in a specialised centre or with foster parents. These measures, which are more conducive to the best interests of the child guaranteed by Article 3 of the Convention on the Rights of the Child ( ibid ., § 83), were considered and eventually put into place by the national authorities, but only after a considerable period of time had elapsed, following a Rule 39 application. 157. In these circumstances, the Court concludes that the authorities did not act with reasonable diligence and therefore did not comply with their positive obligation to ensure the applicant’s right to respect for his private life in the present case. There has accordingly been a violation of Article 8 of the Convention. Alleged violation of Article 3 of the Convention 158. The applicant also complained about his reception conditions in Cona. He alleged that the centre had been overcrowded and only intended for adults. He also complained of a lack of basic facilities such as proper heating and hot water, and a lack of access to medical care. The applicant also complained of a lack of psychological and legal assistance and an insufficient number of staff members and interpreters. 159. 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.” The parties’ submissions (a) The applicant 160. The applicant reiterated his complaints, relying on the evidence provided. He also noted that the Government had not disputed his account of the reception conditions in the Cona centre, which were supported by the evidence submitted. (b) The Government 161. The Government stated that reception centres in the Veneto Region housed 8% of migrants entering the State. To cope with the massive phenomenon of migration, Cona, a former military facility, had been converted into a reception centre for migrants in July 2015. 162. Structural renovations had then been carried out with regard to heating, hot water, the canteen facilities, educational activities and healthcare. In this regard, an agreement had been struck with the Italian Red Cross to ensure a proper healthcare service by providing sixteen specialised medical visits every day, as well as psychological assistance, and by deploying fourteen cultural mediators. Moreover, migrants could benefit from a wireless Internet connection, use two places of worship and make use of an area dedicated to sports and recreational activities. 163. The Government also emphasised that the applicant had been provided with a health insurance card and could benefit from free healthcare. They maintained that structural and health and safety conditions in the Cona reception centre were appropriate. The third-party interveners’ submissions (a) AIRE Centre, Dutch Council for Refugees, ECRE 164. These third parties highlighted the fundamental rights recognised to minor asylum-seekers as regards reception conditions, referring to the vulnerability of unaccompanied minors and to the principle of the best interests of the child. (b) Défenseur des droits 165. Referring to the Court’s case-law ( Tarakhel v. Switzerland [GC], no. 29217/12, ECHR 2014, and Mubilanzila Mayeka and Kaniki Mitunga, cited above), this third party emphasised that States must provide unaccompanied minors with reception conditions suited to their needs. The Court’s assessment (a) Admissibility 166. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. (b) Merits (i) General principles 167. The general principles applicable to the treatment of people held in immigration detention are set out in detail in M.S.S. v. Belgium and Greece (cited above, §§ 216-22), Tarakhel (cited above, §§ 93-99, ECHR 2014 (extracts)) and Khlaifia and Others v. Italy ([GC], no. 16483/12, §§ 158-69, 15 December 2016). In particular, the reception conditions for children seeking asylum must be adapted to their age, to ensure that those conditions do not create for them a situation of stress and anxiety, with particularly traumatic consequences. Otherwise, the conditions in question would attain the threshold of severity required to come within the scope of the prohibition under Article 3 of the Convention (see Tarakhel, cited above, §§ 119, ECHR 2014 (extracts)). 168. The Court reiterates that Article 3 of the Convention makes no provision for exceptions. This absolute prohibition of torture and of inhuman or degrading treatment or punishment shows that Article 3 enshrines one of the fundamental values of the democratic societies making up the Council of Europe (see Soering v. the United Kingdom, 7 July 1989, § 88, Series A no. 161). 169. In order to fall within the scope of Article 3, the ill-treatment must attain a minimum level of severity, the assessment of which depends on all the circumstances of the case, and in particular the nature and context of the treatment, the manner in which it was inflicted, its duration, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see, among other authorities, Raninen v. Finland, 16 December 1997, § 55, Reports 1997-VIII). 170. With more specific reference to children, the Court has found a violation of Article 3 of the Convention on a number of occasions on account of the placement in migrant centres of accompanied and unaccompanied minors (in some cases, placed in administrative detention centres). 171. As regards accompanied children, the Court points to the following cases: Muskhadzhiyeva and Others v. Belgium (no. 41442/07, §§ 55-63, 19 January 2010); Kanagaratnam v. Belgium (no. 15297/09, 13 December 2011); Mahmundi and Others v. Greece (no. 14902/10, §§ 72-74, 31 July 2012); Popov v. France (nos. 39472/07 and 39474/07, §§ 91-103, 19 January 2012); A.B. and Others v. France (no. 11593/12, §§ 107-15, 12 July 2016); R.R. and Others v. Hungary (no. 36037/17, §§ 58-65, 2 March 2021); M.H. and Others v. Croatia (nos. 15670/18 and 43115/18, §§ 183-204, 18 November 2021) and N.B. and Others v. France (no. 49775/20, §§ 47-53, 31 March 2022). 172. With regard to unaccompanied minors, the Court refers to the following case-law: Mubilanzila Mayeka and Kaniki Mitunga (cited above, §§ 50-59); Rahimi v. Greece (no. 8687/08, §§ 95-96, 5 April 2011); Abdullahi Elmi and Aweys Abubakar v. Malta (nos. 25794/13 and 28151/13, §§ 111-15), 22 November 2016; S.F. and Others v. Bulgaria (no. 8138/16, §§ 78-83, 7 December 2017); Khan v. France (no. 12267/16, §§ 92-95, 28 February 2019); Sh.D. and Others v. Greece, Austria, Croatia, Hungary, North Macedonia, Serbia and Slovenia (no. 14165/16, §§ 52-62, 13 June 2019) and Moustahi v. France (no. 9347/14, §§ 65-67, 25 June 2020). 173. It is also important to bear in mind that a child’s extreme vulnerability is the decisive factor and takes precedence over considerations relating to his or her status as an illegal immigrant (see Mubilanzila Mayeka and Kaniki Mitunga, cited above, § 55). Children have specific needs that are related not only to their age and lack of independence, but also to their asylum-seeker status. The Court has also observed that the Convention on the Rights of the Child (see paragraph 57 above) encourages States to take appropriate measures to ensure that a child who is seeking to obtain refugee status enjoys protection and humanitarian assistance, whether alone or accompanied by his or her parents (see, in this connection, Popov, § 91, and Tarakhel, § 99, both cited above). (ii) Application of those principles to the present case 174. The Court notes at the outset that the applicant provided a number of pieces of evidence in support of his claims. In particular, he produced a parliamentary question submitted by a member of parliament following a visit to Cona on 16 November 2016, and the report of the non-governmental organisation Associazione Giuristi Democratici on its visit to Cona on 4 January 2017. These documents confirmed the information concerning overcrowding at the centre, the insufficient number of staff and the difficulties in accessing medical care (see paragraphs 22 et seq. above). 175. The Government, for their part, did not dispute the information and figures presented by the applicant and confined themselves to asserting that renovations had been carried out in the reception centre to the heating, hot water, canteen service, educational and recreational activities, healthcare and staff (specifically psychologists and cultural mediators). 176. The Court notes, however, that they did not show that these improvements had taken place before the applicant’s arrival in Cona, and that the need for such interventions rather confirms the previous insufficiency of services and facilities during the applicant’s stay there. 177. In addition to this, the Court reiterates that, despite having declared himself to be a minor, the applicant was housed in the adult reception centre in Cona. 178. Once there, he was subject to an age-assessment procedure, which the Court has found to have been conducted in breach of Article 8 of the Convention (see paragraph 151 above; contrast Aarabi v. Greece, no. 39766/09, §§ 43-45, 2 April 2015). 179. The applicant was then considered to be an adult and was kept in Cona for more than four months until, following the Court’s decision to apply Rule 39 of the Rules of Court, the Italian authorities promptly ordered his transfer to a migrant centre for minors. 180. In the Court’s view, those circumstances are in themselves problematic with regard to the applicant’s vulnerability and dignity. 181. The Court is sensitive to the Government’s argument that Cona, a former military facility, was converted into a reception centre for migrants to deal with the massive phenomenon of migration. In this connection, it should be noted that the number of unaccompanied minors arriving in Italy dramatically increased during the period in which the facts of the case were taking place (see paragraph 126 above). 182. That being said, the Court can only reiterate its well-established case-law to the effect that, having regard to the absolute character of Article 3, the difficulties deriving from the increased inflow of migrants and asylum-seekers, in particular for States which form the external borders of the European Union, does not exonerate member States of the Council of Europe from their obligations under this provision (see M.S.S. v. Belgium and Greece, cited above, § 223; Hirsi Jamaa and Others v. Italy [GC], no. 27765/09, § 122, ECHR 2012; and Khlaifia, cited above, § 184; contrast J.R. and Others v. Greece, no. 22696/16, § 137, 25 January 2018). 183. Therefore, having regard to the length and conditions of the applicant’s stay in the adult reception centre in Cona, the Court concludes that he was subjected to inhuman and degrading treatment and that there has been a breach of Article 3 of the Convention. Alleged violation of Article 13 of the Convention in conjunction with Articles 3 and 8 184. Lastly, the applicant complained that he had not been afforded an effective remedy under Italian law by which to lodge his complaints under Articles 3 and 8 of the Convention. He 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.” The parties’ submissions (a) The applicant 185. The applicant stated that the Italian legal system had not provided any effective remedy by which to complain about the reception conditions for asylum-seekers or the suitability of a given reception centre. Moreover, he had had no access to any legal information. 186. He also averred that the results of the age-assessment procedure had not been disclosed to him and that no judicial decision had been issued in his case. Moreover, he stressed that the Government had failed to pinpoint any internal remedy that would have been effective in his case. 187. As regards his reception conditions, the applicant observed that an application could be lodged with the administrative courts under Article 15 of Legislative Decree no. 142 of 2015, but only in so far as it concerned the refusal to place him in a reception facility. 188. The applicant also submitted that an application had been lodged with the court for the attention of the guardianship judge of Venice, but that he had had no news concerning its outcome. (b) The Government 189. As to the reception conditions in Cona, the Government argued in general that the applicant had had a number of legal, administrative and health measures at his disposal aimed at his protection. They further submitted that he had been given a healthcare card. 190. The Government’s observations on this point are set out in paragraphs 104 et seq. above. 191. They concluded by stating that the applicant’s right to an effective remedy with regard to Articles 3 and 8 of the Convention had been respected. The Court’s assessment (a) Admissibility 192. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. (b) Merits The Court’s assessment (a) General principles 193. 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. 194. The scope of the Contracting States’ obligations under Article 13 varies depending on the nature of the applicant’s complaint. However, the remedy required by Article 13 must be “effective” in practice as well as in law. The “effectiveness” of a “remedy” within the meaning of Article 13 does not depend on the certainty of a favourable outcome for the applicant. Nor does the “authority” referred to in that provision necessarily have to be a judicial authority; but if it is not, its powers and the guarantees which it affords are relevant in determining whether the remedy before it is effective. 195. Also, even if a single remedy does not by itself entirely satisfy the requirements of Article 13, the aggregate of remedies provided for under domestic law may do so (see, among many other authorities, Kudła v. Poland, [GC], no. 30210/96, § 157, ECHR 2000-XI; Hirsi Jamaa and Others, cited above, § 197; and Khlaifia and Others, cited above, § 268). (b) Application of those principles to the present case 196. Referring to the above conclusions (see paragraphs 151 and 183 above), the Court firstly considers that the applicant clearly has an arguable complaint under the Convention. Article 13 is therefore applicable in the present case. 197. It then observes that the Government failed to indicate any specific remedy by which the applicant could have complained about his reception conditions in Cona. 198. Moreover, it should be noted that the remedies mentioned by the Government with specific reference to the applicant’s age-assessment procedure (see paragraph 45 above, and Article 6 § 3 of Prime Ministerial Decree no. 234 of 2016 in paragraph 55 above) turned out to be ineffective in this case (see the Court’s conclusion with regard to the Government’s objection of non-exhaustion of domestic remedies in paragraphs 104 et seq. above). 199. It follows that there has been a violation of Article 13 taken in conjunction with Articles 3 and 8 of the Convention. APPLICATION OF ARTICLE 41 OF THE CONVENTION 200. 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 201. The applicant claimed 45,000 euros (EUR) in respect of non-pecuniary damage. 202. The Government contested this claim. 203. Having regard to the distress and frustration incurred by the applicant stemming from the violations of the Convention set out above, the Court awards him EUR 7,500 in respect of non-pecuniary damage. Costs and expenses 204. The applicant claimed EUR 21,210.93 for the costs incurred in the proceedings before the Court. 205. The Government contested the applicant’s claims. 206. 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 the sum of EUR 4,000, covering the costs and expenses for the proceedings before the Court. | The Court held that there had been a violation of Article 8 (right to respect for private life) of the Convention, in respect of the first applicant10, owing to shortcomings in procedural guarantees afforded to him as a minor migrant. As a result, he had not been able to file an asylum request and had been placed in an overcrowded adult reception centre for more than four months. It noted in particular that, at the time of the events, domestic and EU law already provided a number of guarantees for unaccompanied minor asylum-seekers. The Court referred to the EU Directives which had been implemented in Italy, as well as to the Resolution of the Council of the European Union of 26 June 1997 and the Council of Europe’s Parliamentary Assembly Resolution 1810 (2011). Those texts clearly recognised the primary importance of the best interests of the child and of the principle of presumption of minority in respect of unaccompanied migrant children, who required special protection and should be assigned a guardian and be assisted during the asylum proceedings. In this case, the Court also held that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention with regard to the length and conditions of the first applicant’s stay in the adult reception centre, and a violation of Article 13 (right to an effective remedy) of the Convention taken in conjunction with Articles 3 and 8. |
208 | Access to a lawyer | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Rights of suspects in police custody 46. The Code of Criminal Procedure of the Russian Federation (Law no. 174-FZ of 18 December 2001, “CCrP”) provides that suspects have the right of access to a lawyer from the moment of their de facto arrest and that statements given by them without a lawyer and not confirmed in court are inadmissible evidence. It states, in particular, as follows: Article 46. The Suspect “ 4. The suspect shall have the right: ... ( 3) to avail himself or herself of the advice of defence counsel from the moment stipulated by ... and Article 49 § 3 (3) of the present Code, and to have a private and confidential visit from him or her before the suspect ’ s first interrogation ... ” Article 49. Counsel for the Defence “ 3. Counsel for the defence shall take part in the criminal case: ... ( 3) as from the moment of the actual arrest of the person suspected of having committed a crime ...” Article 51. Compulsory participation of counsel for the defence “1. The participation of counsel for the defence in criminal proceedings shall be compulsory if: (1) the suspect or accused has not waived his right to legal assistance pursuant to the procedure established by Article 52 of the present Code ... ” Article 75. “ 2. The following constitutes inadmissible evidence: (1) Statements by the suspect or accused given in the absence of the counsel for the defence in the course of pre-trial proceedings in the criminal case, ... which have not been confirmed in court ... ” 47. Article 51 of the Constitution of the Russian Federation provides that no one may be required to incriminate himself or herself, his or her spouse or close relatives. 48. Article 48 § 2 of the Constitution states that everyone arrested, detained or accused of a crime shall enjoy the right to have the assistance of a defence counsel from the moment of arrest, detention or bringing charges, respectively. 49. In its ruling no. 11 ‑ P of 27 June 2000 the Constitutional Court of the Russian Federation held as follows: “2. ... Under the Constitution of the Russian Federation, the right in question [under Article 48 § 2 of the Constitution] is directly applicable and the assistance of (defence) counsel does not depend on the formal recognition of the individual as a suspect or an accused person. Nor does it depend on the moment when any procedural act by an investigation authority, inquiry authority or a prosecutor ’ s office is carried out; furthermore, the Constitution of the Russian Federation does not empower the federal legislature to impose restrictive conditions on the exercise of this right. Article 48 § 2 of the Constitution of the Russian Federation clearly specifies the essential characteristics of an individual who actually needs legal assistance because his constitutional rights, primarily the right to liberty and security of the person, are restricted, including in the case of criminal prosecution seeking to establish his guilt. Thus, the constitutional right to have the assistance of (defence) counsel extends to the individual from the moment of actual restriction of his rights. Within the literal meaning of the provisions enshrined in Articles 2, 45 and 48 of the Constitution of the Russian Federation, the right to qualified legal assistance is guaranteed to any person, irrespective of his or her formal status in the proceedings and whether or not he or she is officially declared to be detained or under suspicion, if duly authorised authorities have subjected the person to measures that actually restrict the individual ’ s liberty and security of person, including freedom of movement. These measures involve keeping a person in custody by officials, forcibly bringing or delivering him or her to the inquiry or investigation office, holding incommunicado, and any other actions that significantly restrict the liberty and security of the person. ... 3. ... Insofar as the constitutional right to have the assistance of (defence) counsel may not be restricted by federal law, terms such as ‘ detained ’, ‘ accused ’ and ‘ bringing charges ’ are to be construed within their constitutional meaning rather than within the more narrow meaning ascribed to them in the Code of Criminal Procedure of the RSFSR. Ensuring the exercise of this constitutional right necessitates consideration of both the status in proceedings and the actual situation of the person facing public criminal prosecution. Moreover, the very fact of criminal prosecution and, accordingly, accusatory activity undertaken against a particular person may be proven by a decision to institute criminal proceedings against the person, investigative actions in his or her regard (search, identification, interrogation, etc.), and other measures aiming at his exposure or indicating the existence of suspicions against him or her ( inter alia, by informing the individual, under Article 51 § 1 of the Constitution of the Russian Federation, of the right not to incriminate himself or herself). In so far as these actions are intended to establish facts and circumstances proving the guilt of the prosecuted person, he or she should be given an immediate opportunity to seek assistance of (defence) counsel. This creates the conditions enabling him or her to properly understand his or her rights and responsibilities, any charges brought against him or her, and, consequently, to defend himself or herself effectively. These conditions also ensure that the evidence obtained during the investigation will not later be found inadmissible (Article 50 § 2 of the Constitution of the Russian Federation). ... Pursuant to Article 14 of the International Covenant on Civil and Political Rights and Articles 5 and 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, access to legal assistance is seen as an indispensable guarantee of the right to defence in case of criminal prosecution. These international instruments establish that everyone who is arrested or detained is to be informed promptly of the reasons for his arrest and any charge against him, is entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court, and is entitled to a fair and public hearing and to defend himself in person or through legal assistance of his own choosing.” By the above ruling the Constitutional Court declared Article 47 § 1 of the RSFSR Code of Criminal Procedure of 27 October 1960 (in force until 1 July 2002) unconstitutional. It found that by providing for the right to legal assistance from the moment that the arrest record or the detention order was read out to the suspect, rather than from the moment of arrest as guaranteed by Article 48 of the Constitution, Article 47 § 1 made the exercise of the right to legal assistance dependent on the discretion of the prosecuting authorities. The Constitutional Court later referred to the above ruling and stressed the validity of its findings in that ruling for other situations where operative ‑ search measures, aimed at the establishment of facts and circumstances incriminating the relevant person, such as an interview, had been conducted (decisions no. 327-O of 9 June 2005, no. 473-O of 20 December 2005 and no. 924-O-O of 15 November 2007). B. Surrender and confession in criminal proceedings 50. The CCrP provides as follows: Article 74. Evidence “2. The following shall be admitted as evidence: (1) statements by the suspect and accused; (2) statements by the victim and witness; (3) findings and statements by the expert; (4) real evidence; (5) records of investigative and judicial acts; (6) other documents.” Article 140. Events giving rise to and grounds for opening a criminal case “1. A criminal case may be opened in the event of: ( a) a complaint of a crime; ( b) surrender and confession; ... 2. Sufficient information disclosing the elements of a crime shall serve as a ground for opening a criminal case.” Article 141. Complaint of a crime “1. A complaint of a crime can be made in a verbal or written form. ... 3. A verbal complaint of a crime shall be entered into a record, which is to be signed by the complainant and by the person taking the complaint. The record must contain data about the complainant and his or her identification documents. ... 6. The complainant shall be warned about his or her criminal liability for perjure pursuant to Article 306 of the Criminal Code of the Russian Federation, which is noted in the record and signed by the applicant. ” Article 142. Surrender and confession “1. A statement of surrender and confession ( заявление о явке с повинной ) is a voluntary statement by a person about a crime which he or she has committed. 2. A statement of surrender and confession can be made in a written, as well as a verbal form. A verbal statement shall be taken and entered into a record under the procedure provided for by paragraph 3 of Article 141 of the present Code.” 51. The Supreme Court of the Russian Federation regards a statement of surrender and confession, provided for by Article 142 of the CCrP, as evidence, in the form of “other documents” provided for by Article 74 § 2 (6) of the CCrP (see, for example, the Supreme Court ’ s judgments on appeal no. 89-o04-29sp of 16 July 2004, no. 50-o05-15 of 23 June 2005, no. 46-O09-3 of 5 March 2009, no. 48-O09-39 of 25 May 2009 and no. 209 ‑ O10-3SP of 20 May 2010 ). 52. The Supreme Court has stated that the law does not require access to a lawyer for a statement of surrender and confession to be made and that, therefore, the objection on that ground to the admissibility of such a statement as evidence should fail (see the Supreme Court ’ s judgments on appeal no. 56-o04-77 of 23 March 2005, no. 67 ‑ O06 ‑ 5 of 29 June 2006, no. 29 ‑ O08 ‑ 18SP of 15 December 2008 and no. 201 ‑ FGE13 ‑ 2SP of 25 July 2013 ). 53. The Supreme Court has therefore ruled that the provisions of Article 75 § 2 (1) of the CCrP (see paragraph 46 above) did not apply to a statement of surrender and confession ( see the Supreme Court ’ s judgment on appeal no. 50-o04-82sp of 23 March 2005 ). 54. In respect of the allegation that Article 142 and/or other provisions of the CCrP provided a basis for the admission in evidence of statements of surrender and confession obtained at pre-trial proceedings in the absence of a lawyer, the Constitutional Court of the Russian Federation reiterated the findings in its ruling no. 11 ‑ P of 27 June 2000 (see paragraph 4 9 above) and stated that Article 49 § 3 of the CCrP defined the moment from which counsel for the defence took part in the criminal proceedings (see paragraph 46 above). The constitutional right to legal assistance arose from the moment when the relevant person ’ s rights were actually restricted, for example when measures which effectively restricted his or her rights to liberty and security, including his or her freedom of movement, were undertaken by competent authorities ( decisions on inadmissibility no. 1280 ‑ O of 17 July 2012, no. 638-O of 20 March 2014, no. 1338-O of 24 June 2014, no. 2380 ‑ O of 23 October 2014 and no. 2787 ‑ O of 23 December 2014 with a reference to earlier decision no. 1522-O-O of 17 November 2009 ). Therefore, the provisions of Articles 91 and 92 of the CCrP, which regulated the grounds for and the procedure of the suspect ’ s arrest, did not deprive the arrested person of the right to legal assistance from the moment of his or her actual arrest or other restrictions of his or her rights (decisions on inadmissibility no. 234-O of 20 June 2006, no. 245 ‑ O ‑ O of 20 March 2008, no. 1579-O-O of 17 November 2011 and no. 1280 ‑ O of 17 July 2012 ). 55. The Constitutional Court noted that Article 142 of the CCrP did not contain provisions which would authorise the restriction of the rights to liberty and security, including the freedom of movement, of a person making a statement of surrender and confession. For this reason Article 142 of the CCrP did not provide for the presence of a lawyer. However, it did not exclude the right of a person to make such statement in the presence of a lawyer, either ( see decisions on inadmissibility no. 326-O of 14 October 2004, no. 1280-O of 17 July 2012, no. 638-O of 20 March 2014, no. 1338 ‑ O of 24 June 2014, no. 2380-O of 23 October 2014 and no. 2787-O of 23 December 2014 ). Article 142 did not contain norms which would be inconsistent with the general provisions of the criminal procedural law concerning, in particular, the requirements for and the procedure to examine the admissibility of evidence. Those general provisions were to apply if a statement of surrender and confession was read out at the trial (decisions on inadmissibility no. 326-O of 14 October 2004, no. 391-O of 20 October 2005, no. 285-O-O of 22 March 2011, no. 1448 ‑ O ‑ O of 20 October 2011, no. 1901-O of 18 October 2012 and no. 2173-O of 25 September 2014). 56. Under the Criminal Code of the Russian Federation, the act of surrender and confession is considered a mitigating circumstance in sentencing (Article 61). The Plenary Supreme Court of the Russian Federation indicated in its Ruling no. 2 of 11 January 2007 that if a statement by an individual concerning a crime committed by him or her was used, together with other evidence, in securing his or her conviction, that statement might be considered as a statement of surrender and confession – a mitigating circumstance for the purpose of sentencing – even if the person altered his statements in the course of the investigation or trial. The fact that a person made a statement about a crime following his or her arrest on suspicion of having committed that crime did not exclude considering such a statement as a mitigating circumstance in sentencing. C. Procedure for re-opening of criminal proceedings 57. Article 413 of the Code, setting out the procedure for re-opening of criminal cases, reads, in so far as relevant, as follows: “1. Court judgments and decisions which became final should be quashed and proceedings in a criminal case should be re-opened due to new or newly discovered circumstances. ... 4. New circumstances are: ... (2) a violation of a provision of the European Convention for the Protection of Human Rights and Fundamental Freedoms committed by a court of the Russian Federation during examination of a criminal case and established by the European Court of Human Rights, pertaining to: (a) application of a federal law which runs contrary to provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms; (b) other violations of provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms; ...” THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 58. The applicant complained that he had been subjected to inhuman and degrading treatment in police custody in order to make him confess to the crime. 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.” 59. The Government acknowledged that the applicant ’ s rights guaranteed by Article 3 of the Convention had been violated and that the domestic remedies had been ineffective in his case. 60. The Government further stressed that the domestic legal system did, in principle, provide for effective remedies for victims of police ill ‑ treatment. Firstly, there was an effective criminal-law remedy, notably a criminal investigation into the allegations of ill-treatment by police officers which could lead to the conviction of police officers. The Government referred to and submitted a series of judgments delivered by courts in 2008 ‑ 2010 in different regions (the Astrakhan, Kemerovo, Lipetsk, Moscow, Rostov and Ryazan regions and the Republics of Tatarstan and Khakasiya), in which police officers from criminal investigation units and other police staff had been convicted under Article 286 of the Criminal Code of crimes which could qualify as violations of Article 3. The Government submitted further that investigative authorities ’ acts and decisions, in particular refusals to open a criminal case, were open to judicial review under Article 125 of the Code of Criminal Procedure. Lastly, civil judicial remedies existed in order to complain about decisions and acts of State organs and their officials and to request compensation for the damage caused. A. Admissibility 61. 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 the Government do not plead non-exhaustion of domestic remedies and that the complaint is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The applicant ’ s ill-treatment in police custody 62. The Court notes that the Government have acknowledged a violation of Article 3 in the present case. It has no reason to hold otherwise. 63. After the time spent in police custody the applicant was found to be injured (see paragraphs 13, 16 and 19 above). No plausible explanation was provided for his injuries. The investigative authority ’ s finding that the applicant had committed an act of self-harm was based on the account of events put forward by the police officers, notably G., who, in the applicant ’ s submissions, was the officer who had used physical violence against him, and K., who had allegedly been in the room with G. when the applicant ’ s injuries were sustained. The investigative authority ’ s failure to verify the two versions of the origin of the applicant ’ s injuries by using such investigative means as confrontations and identification parades, as pointed out repeatedly by the supervising authorities (see paragraphs 22 and 25 ‑ 26 above), casts doubt on the unconditional preference it gave to the police officers ’ version. Furthermore, the finding of self ‑ harm does not accord with the forensic medical expert ’ s conclusion as to the origin of the injuries, which excluded the possibility that the injuries could have been caused as a result of a fall, that is by a single impact from a flat surface, as was also noted by the supervising authority (see paragraph 22 above), and suggested that they could have been caused by blows from blunt hard objects with a limited contact surface. Lastly, no explanation was provided by the investigative authority for the injuries to the applicant ’ s back. 64. Having regard to the detention facilities ’ medical records and the forensic medical expert ’ s conclusions, the injuries to the applicant ’ s face, back and knees are consistent with his allegations that he was punched and kicked and that his head was struck against the wall with such force that he lost consciousness. These injuries, unaccounted for within the domestic proceedings and acknowledged by the Government, must therefore be considered attributable to a form of ill ‑ treatment for which the authorities were responsible. 65. Strong inferences can be drawn from the evidence to the effect that the ill ‑ treatment occurred during the applicant ’ s questioning by the police officers about the circumstances of the crime of which he was suspected and that, as a result, the applicant signed the statement of his surrender and confession, which he retracted on the following day as soon as he was given access to a lawyer. The ill-treatment can be regarded as having caused the applicant, who was in a state of particular vulnerability, considerable fear, anguish and mental suffering and driven him to act against his will. Having regard to the nature and circumstances of the ill ‑ treatment, the Court finds that it amounted to inhuman and degrading treatment (see Salman v. Turkey [GC], no. 21986/93, § 100, ECHR 2000 ‑ VII; Gäfgen v. Germany [GC], no. 22978/05, § § 87-93, ECHR 2010; Nasakin v. Russia, no. 22735/05, § § 51-55, 18 July 2013; and Mostipan v. Russia, no. 12042/09, § § 58-61, 16 October 2014). 66. There has therefore been a violation of Article 3 under its substantive head. 2. The State ’ s obligation to conduct an effective investigation 67. The applicant, who was found to be injured after the time spent in police custody, stated during his first questioning as a suspect on the following day, in the presence of a lawyer, that he had been subjected to ill ‑ treatment by police officers in order to obtain his confession to the crime (see paragraph 14 above). Three days later he reiterated his complaint before the judge who was examining the investigator ’ s application for his detention on remand (see paragraph 15 above). On the same day his counsel lodged an application with the investigative authority requesting prosecution of those responsible for the applicant ’ s ill ‑ treatment (ibid.). On the following day the applicant ’ s injuries were again recorded on his arrival at the pre-trial detention facility (see paragraph 16 above). 68. The authorities were thus made promptly and sufficiently aware of the applicant ’ s allegation that he had been subjected to ill-treatment in police custody. The allegation was supported by the detention facilities ’ records of his injuries and confirmed by forensic medical evidence, obtained as a result of the very first steps undertaken by the investigative authority charged with the pre ‑ investigation inquiry into his alleged ill ‑ treatment (see paragraph 19 above). The allegation was therefore credible and gave rise to an obligation on the State to carry out an effective investigation. 69. The Government have acknowledged that no such investigation took place. The Court, as with regard to the violation of Article 3 in its substantive aspect (see paragraphs 62 and 66 above), has no reason to hold otherwise. 70. Indeed, the authorities did not open a criminal case until 5 December 2005, that is, more than three months after they had been made sufficiently aware of the applicant ’ s alleged ill-treatment. The prosecutor instituted criminal proceedings on the grounds that the applicant ’ s version of his ill ‑ treatment by the police officers, which was not excluded on the facts, could only be verified by way of a full investigation for which it was necessary to open a criminal case, given that there was sufficient information disclosing elements of a crime under Article 286 § 3 (a) of the Criminal Code (see paragraph 22 above). According to the prosecutor, the pre ‑ investigation inquiry had not reliably established the circumstances in which the applicant had sustained his injuries. In particular, it was not possible in the course of the pre ‑ investigation inquiry to carry out an identification parade, which would have enabled the applicant to identify the police officer who had assaulted him – even though the applicant “would most likely [have been] able to identify [ him ] ” – or a confrontation between them (ibid.). 71. The Court has previously found in Lyapin v. Russia that in the context of the Russian legal system, if credible allegations of treatment proscribed under Article 3 of the Convention are made, then it is incumbent on the authorities to open a criminal case and conduct a proper criminal investigation in which the whole range of investigative measures are carried out and which – according to the Government (see paragraph 60 above) – constitutes an effective remedy for victims of police ill ‑ treatment under domestic law. It is not possible to establish within the framework of a “pre ‑ investigation inquiry” the facts of a case, particularly the identity of persons who could have been responsible for the ill-treatment. A “pre ‑ investigation inquiry” alone is not capable of leading to the punishment of those responsible, since the opening of a criminal case and a criminal investigation are prerequisites for bringing charges against the alleged perpetrators, which may then be examined by a court. Confronted with numerous cases of this kind against Russia, the Court has held that it was bound to draw stronger inferences from the mere fact of the investigative authority ’ s refusal to open a criminal investigation into credible allegations of serious ill ‑ treatment in police custody. This was indicative of the State ’ s failure to comply with its obligation under Article 3 to carry out an effective investigation (see Lyapin v. Russia, no. 46956/09, § § 129 and 132 ‑ 36, 2 4 July 2014 ). 72. The above findings are fully applicable to the present case. On the facts, the Court notes that the information which the prosecutor assessed as sufficient for bringing criminal proceedings on 5 December 2005 was in the investigative authority ’ s hands shortly after the applicant ’ s ill ‑ treatment. Hence, nothing can explain the three - month delay in commencing the criminal investigation into the applicant ’ s complaint. The Court considers that such a delay could not but have had an adverse impact on the investigation, undermining the investigative authority ’ s ability to secure the evidence concerning the alleged ill ‑ treatment (see Indelicato v. Italy, no. 31143/96, § 37, 18 October 2001; Kopylov v. Russia, no. 3933/04, § 137, 29 July 2010; Eldar Imanov and Azhdar Imanov v. Russia, no. 6887/02, § 99, 16 December 2010; and Shishkin v. Russia, no. 18280/04, § 100, 7 July 2011). 73. The ensuing proceedings were marred by the investigative authority ’ s failure to carry out a complete investigation, as was repeatedly pointed out by its own hierarchy (see paragraph 25 above). They ended with the decision to terminate them on the same ground – lack of elements of a crime in the acts of the police officers – and for the same reason – the statements by police officers ’ G. and K. submitting that the applicant had hit his own face against the wall – as in its initial refusal to open a criminal case and the previous decisions to terminate the proceedings, each of which was set aside as unlawful and unfounded. There is no indication in the materials before the Court that even such obvious investigative measures as identification parades and confrontations, the importance of which was twice noted by the investigators ’ superiors, were conducted in the course of the investigation (see paragraphs 22 and 25 above). Equally, the forensic medical expert ’ s conclusion that the applicant ’ s injuries could not have been caused by a single impact from a flat surface, to which the investigative authority ’ s attention was drawn in the decision to open a criminal case (see paragraph 22 above), was ignored (see paragraph 26 above). 74. The Court finds that the significant delay in opening the criminal case and commencing a full criminal investigation into the applicant ’ s credible assertion of ill ‑ treatment at the hands of the police, as well as the lack of any meaningful process during the flawed investigation conducted thereafter, show that the authorities did not take all reasonable steps available to them to secure the evidence and did not make a serious attempt to find out what had happened (see, among other authorities, Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000 - IV, and Assenov and Others v. Bulgaria, 28 October 1998, §§ 103 et seq., Reports of Judgments and Decisions 1998-VIII). They thus failed in their obligation to conduct an effective investigation into the applicant ’ s ill ‑ treatment in police custody. 75. By failing in its duty to carry out an effective investigation, the State fostered the police officers ’ sense of impunity. The Court stresses that a proper response by the authorities in investigating serious allegations of ill ‑ treatment at the hands of the police or other similar agents of the State in compliance with the Article 3 standards is essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion or tolerance of unlawful acts (see, among other authorities, Gasanov v. the Republic of Moldova, no. 39441/09, § 50, 18 December 2012; Amine Güzel v. Turkey, no. 41844/09, § 39, 17 September 2013; and Mesut Deniz v. Turkey, no. 36716/07, § 52, 5 November 2013). 76. In view of the foregoing, the Court concludes that there has been a violation of Article 3 of the Convention under its procedural head also. II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 77. The applicant complained that his right to a fair trial, guaranteed by Article 6 of the Convention, had been infringed by the use of the confession extracted from him as a result of ill-treatment in police custody, when he had no access to a lawyer. The Court will examine his complaint under Article 6 §§ 1 and 3 (c), which, in so far as relevant, provides: “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: ... (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; ... ” 78. The Government contested that argument. They pointed out that the statement of the applicant ’ s surrender and confession was not the sole evidence on which his conviction was based. His guilt had been sufficiently proved by other evidence in the case. 79. In reply to the Court ’ s questions concerning the relevant domestic law, the Government submitted that while police officers carrying out operative ‑ search activities had no right to question an arrested person ( проводить допрос задержанного ), they could obtain from a suspect a statement of his surrender and confession ( получить явку с повинной ). The surrender and confession was regulated by Articles 141 and 142 of the Code of Criminal Procedure, which did not provide for the relevant person ’ s access to counsel for the defence. According to the Code of Criminal Procedure, Article 75 § 2 (1) of the Code was not applicable to the statement of surrender and confession. However, self-incriminating statements given in the absence of a lawyer by a person who later became a suspect or accused were to be declared inadmissible evidence, if subsequently retracted, pursuant to that provision. The Government did not submit information in support of their observations about the domestic courts ’ practice in respect of Article 75 § 2 (1) of the Code, despite being invited to do so by the Court. A. Admissibility 80. 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 the Government do not plead non-exhaustion of domestic remedies and that the complaint is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. General principles 81. The Court reiterates that its duty, under Article 19 of the Convention, is to ensure the observance of the engagements undertaken by the Contracting States in 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. While Article 6 guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence as such, this being primarily a matter for regulation under national law (see Schenk v. Switzerland, 12 July 1988, §§ 45-46, Series A no. 140). 82. It is therefore not the role of the Court to determine, as a matter of principle, whether particular types of evidence – for example, evidence obtained unlawfully in terms of domestic law – may be admissible or, indeed, whether the applicant was guilty or not. The question which must be answered is whether the proceedings as a whole, including the way in which the evidence was obtained, were fair. This involves an examination of the unlawfulness in question and, where the violation of another Convention right is concerned, the nature of the violation found (see, inter alia, Khan v. the United Kingdom, no. 35394/97, § 34, ECHR 2000 ‑ V; P.G. and J.H. v. the United Kingdom, no. 44787/98, § 76, ECHR 2001-IX; Allan v. the United Kingdom, no. 48539/99, § 42, ECHR 2002 ‑ IX; and Gäfgen, cited above, § 163). 83. In determining whether the proceedings as a whole were fair, regard must also be had to whether the rights of the defence have been respected, in particular whether the applicant was given the opportunity of challenging the authenticity of the evidence and of opposing its use (see Panovits v. Cyprus, no. 4268/04, § 82, 11 December 2008). In addition, the quality of the evidence must be taken into consideration, including whether the circumstances in which it was obtained cast doubt on its reliability or accuracy (ibid.). Indeed, where the reliability of evidence is in dispute the existence of fair procedures to examine the admissibility of the evidence takes on an even greater importance (see Allan, cited above, § 47 ). 84. The right to silence 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. Their rationale lies, inter alia, in the protection of the accused against improper compulsion by the authorities, thereby contributing to the avoidance of miscarriages of justice and to the fulfilment of the aims of Article 6. The right not to incriminate oneself, in particular, 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 ‑ IX ). 85. Lastly, the Court reiterates that a waiver of a right guaranteed by the Convention – in so far as it is permissible – must not run counter to any important public interest, must be established in an unequivocal manner and must be attended by minimum safeguards commensurate to the waiver ’ s importance (see Sejdovic v. Italy [GC], no. 56581/00, § 86, ECHR 2006-II). 2. Application of the above principles in the present case 86. The Court observes that the police reopened criminal proceedings into the unsolved robbery of commercial premises on the basis of information reported by Ms R. about, inter alia, the applicant ’ s alleged involvement in the robbery. The applicant was taken to the police station and interviewed by police officers about the circumstances of the crime. He was subjected to ill ‑ treatment (see paragraph 66 above) and confessed to having participated in the crime. His confession was documented by police officer G. in the statement recording his surrender and confession. That record states that the applicant had been informed of Article 51 of the Constitution of the Russian Federation (see paragraph 10 above). Once given access to a lawyer on the following day during his first questioning as a suspect by the investigator, the applicant retracted his confession statement, asserting that it had been given as a result of his ill ‑ treatment by the police officers. He consistently repudiated his confession throughout the ensuing proceedings, in which he was represented by a lawyer. He was able to challenge the admissibility of the statement as evidence at his trial on two grounds, which he has now raised before this Court. Firstly, he asserted that the confession statement had been extracted from him as a result of his ill ‑ treatment by the police officers, and, secondly, that it had been obtained without him having access to a lawyer. The trial court regarded his confession as admissible evidence, considering that the allegations of his ill ‑ treatment were unsubstantiated, that access to a lawyer had not been required by domestic law and that the applicant had been informed of the right not to incriminate himself. In convicting the applicant the trial court relied to a significant extent on his confession (see paragraphs 38-39 above). In the appeal and the supervisory review proceedings the Supreme Court of the Komi Republic and the Supreme Court of the Russian Federation endorsed the trial court ’ s findings in full. 87. The Court notes, firstly, that no assessment was made by the trial court of the medical and witness evidence submitted by the applicant to support his objection on the ground of duress (see paragraph 36 above). In relying on the police officers ’ statements denying any wrongdoing on their part and on the internal police inquiry dismissing the applicant ’ s allegations, the court attached no significance to the police officers ’ obvious interest in the applicant ’ s allegations of ill ‑ treatment being rejected. Overall, the trial court ’ s reasoning for its dismissal of the applicant ’ s objection displays a failure to conduct its own independent assessment of all the relevant factors with a view to ascertaining whether there were reasons to exclude from evidence the applicant ’ s confession statement, allegedly “tainted” by a violation of Article 3 of the Convention, so as to ensure the fairness of the trial, and instead indicates its reliance on the decision of the investigative authority (see paragraphs 37 ‑ 38 above), which the Court has found to have been based on an investigation which did not meet the Article 3 requirements (see paragraph 74 above). This lack of a careful assessment of the quality of the impugned evidence ( the applicant ’ s confession statement ) and the circumstances in which it was obtained, which cast doubts on its reliability and accuracy, was not remedied by the higher courts. In consequence, the applicant ’ s confession obtained as a result of his inhuman and degrading treatment (see paragraph 65 above) was used by the domestic courts as evidence of the applicant ’ s guilt. In so doing, the domestic courts legalised the police officers ’ efforts to use a “statement of surrender and confession” to document the applicant ’ s confession, obtained under duress, after his apprehension on suspicion of having committed a crime, contrary to the meaning envisaged for such a statement in Article 142 of the Code of Criminal Procedure (voluntary statement by a person about a crime he or she has committed, see paragraph 50 above). 88. The Government, which acknowledged that the applicant had been subjected to ill-treatment in breach of Article 3, did not dispute that the applicant ’ s confession statement had been obtained as a result of such treatment. Rather, they argued that the confession was not the sole evidence on which the applicant ’ s conviction was based and that other evidence adduced by the prosecution would in any event have secured the applicant ’ s conviction. 89. The Court reiterates that within the Convention system it has long been recognised that the right under Article 3 not to be subjected to torture or to inhuman or degrading treatment or punishment enshrines one of the fundamental values of democratic society. It is an absolute right, permitting of no exception in any circumstances (see Al ‑ Adsani v. the United Kingdom [GC], no. 35763/97, § 59, ECHR 2001 ‑ XI). Therefore, the use in criminal proceedings of evidence obtained in breach of Article 3 always raises serious issues as to the fairness of the proceedings, even if the admission of such evidence was not decisive in securing a conviction (see Jalloh, cited above, § 99 ). 90. Confession statements obtained in violation of Article 3 are inherently unreliable. Furthermore, their use in criminal proceedings is often the reason for which the acts of ill ‑ treatment are committed in the first place. Taking such statements into consideration in finding a person guilty is incompatible with the guarantees of Article 6 (see Söylemez v. Turkey, no. 46661/99, § 122, 21 September 2006). The admission of confession statements obtained in violation of Article 3 renders the proceedings as a whole automatically unfair, irrespective of the probative value of the confession statements and irrespective of whether their use was decisive in securing the defendant ’ s conviction (see Gäfgen, cited above, §§ 166 and 173, and El Haski v. Belgium, no. 649/08, § 85, 25 September 2012 ). 91. The Court has already found in paragraph 65 above that the applicant ’ s confession was obtained as a result of the inhuman and degrading treatment to which he was subjected in police custody. The Government ’ s objection that the applicant ’ s confession was not the sole or decisive evidence should therefore be dismissed. 92. The Court notes further that before giving the “ statement of surrender and confession” the applicant was not informed of the right to legal assistance. No justification – other than compliance with the domestic law – was offered by the domestic courts for the applicant ’ s initial lack of access to a lawyer in police custody. According to the domestic courts in the applicant ’ s case, no prior access to a lawyer was required in order to make a statement of surrender and confession. The subsequent use of such a statement in evidence at the trial could not therefore be contested on the ground of the lack of legal advice (see paragraphs 42 and 44-45 above). Such a position complied with the Supreme Court ’ s case ‑ law on the issue (see paragraphs 51-53 and 5 6 above). 93. The Court 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 a fair trial. Early access to a lawyer at the investigation stage of the proceedings serves as a procedural guarantee of the privilege against self ‑ incrimination and a fundamental safeguard against ill-treatment, given the particular vulnerability of the accused at that stage of the proceedings (see Salduz v. Turkey [GC], no. 36391/02, § 54, ECHR 2008; Nechiporuk and Yonkalo v. Ukraine, no. 42310/04, § 263, 21 April 2011; and Martin v. Estonia, no. 35985/09, § 79, 30 May 2013). In order for the right to a fair trial to remain sufficiently “practical and effective”, Article 6 § 1 requires that, as a rule, access to a lawyer should be provided as 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. 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 (see Salduz, cited above, § 55). A systematic restriction of the right of access to legal assistance, on the basis of statutory provisions, is sufficient in itself for a violation of Article 6 to be found (see Salduz, cited above, § 56; and Dayanan v. Turkey, no. 7377/03, § 33, 13 October 2009). 94. The Court observes that irrespective of whether the applicant confessed before or after his arrest was formally recorded (see paragraphs 10 and 12 above), it follows from the facts of the case, which are not disputed by the Government, and in particular from the police officers ’ statements, that at the time of his confession the applicant was being held in police custody for the sole reason that he was suspected of having participated in the robbery, that suspicion being based on information reported to the police by Ms R. (see paragraphs 6-8 and 32-33 above). The police officers were therefore obliged to provide him with the rights of a suspect, access to a lawyer being one such right (see, mutatis mutandis, Brusco v. France, no. 1466/07, §§ 46 ‑ 55, 14 October 2010 ). This would also correspond to the domestic criminal procedural - law requirement that the right of access to a lawyer arises from the moment of actual arrest (see paragraph 46 above), which accords with the Constitutional Court ’ s interpretation of the right to legal assistance as arising from the moment of actual restriction of one ’ s constitutional rights, in particular the right to liberty and security, and not from the moment of the formal recognition of one ’ s status as a suspect or one ’ s detention (see paragraphs 48-49 and 54- 55 above). 95. The absence of a domestic - law requirement of access to a lawyer for a statement of surrender and confession was used as leeway to circumvent the applicant ’ s right as a de facto suspect to legal assistance and to admit his statement of surrender and confession, obtained without legal assistance, in evidence to establish his guilt. This has irretrievably prejudiced the rights of the defence. Neither the assistance provided subsequently by a lawyer nor the adversarial nature of the ensuing proceedings and the possibility of challenging the admissibility of the evidence at issue at the trial and on appeal could remedy the defects which had occurred during police custody. 96. Even assuming that the applicant had been informed of the constitutional right not to incriminate himself before making his confession statement, as was found by the domestic courts, he cannot be said to have validly waived his privilege against self-incrimination in view of the Court ’ s finding that he had given his confession statement as a result of his inhuman and degrading treatment by the police. In any event, no reliance can be placed on the mere fact that the applicant had been reminded of his right to remain silent and signed the relevant record (see Salduz, cited above, § 59; and Płonka v. Poland, no. 20310/02, § 37, 31 March 2009), especially because the record cited Article 51 of the Constitution without explaining its meaning. Furthermore, since the lack of access to a lawyer in the present case resulted from the systemic application of legal provisions, as interpreted by the domestic courts, and the applicant was not informed of the right to legal assistance before signing the statement of his surrender and confession, the question of the waiver of the right to legal assistance is not pertinent. 97. The Court concludes that the domestic courts ’ use in evidence of the statement of the applicant ’ s surrender and confession obtained as a result of his ill-treatment in violation of Article 3 and in the absence of access to a lawyer has rendered the applicant ’ s trial unfair. 98. There has therefore been a violation of Article 6 §§ 1 and 3 (c) of the Convention in the present case. III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION 99. Lastly, the applicant complained, relying on Article 13 of the Convention, about other alleged violations of his rights in the criminal proceedings against him, such as delays in delivering the judgment and in scheduling the appeal hearing, changes in the composition of the bench and the dismissal of his applications for supervisory review of the case. Having regard to all the material in its possession and in so far as these complaints fall within the Court ’ s 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 must be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 100. 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 101. The applicant claimed 30,000 euros (EUR) in respect of non ‑ pecuniary damage. 102. The Government considered the above sum excessive. 103. Making its assessment on an equitable basis and having regard to the nature of the violations found, the Court awards the applicant EUR 20,000, plus any tax that may be chargeable. B. Costs and expenses 104. The applicant also claimed RUB 150,000 for the legal costs incurred at the preliminary investigation and before the domestic courts in the criminal proceedings against him and EUR 3,000 for those incurred before the Court. 105. The Government contested the claims on the ground that there was no proof that they had actually been incurred. 106. 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 is satisfied that the legal-services contract concerning the domestic proceedings and the legal-services contract concerning the proceedings before the Court, concluded between the applicant and his lawyer, created legally enforceable obligations to pay the amounts indicated therein. It notes, however, that although remedying the violations of Article 6 found by the Court in the present case was the largest part of the legal work in the domestic proceedings, the amount indicated in the former contract also covered other legal work, not relevant to the violations of the Convention found. It also notes that not all of the complaints submitted by the applicant were declared admissible by the Court. Regard being had to the above considerations, the documents in its possession and the criteria in its case-law, the Court considers it reasonable to award the sum of EUR 2,500 for legal costs in the domestic proceedings and the sum of EUR 2,800 for the proceedings before the Court, plus any tax that may be chargeable on the total amount, to be paid directly into the bank account of the applicant ’ s representative. 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, both on account of the applicant’s ill-treatment and on account of the ineffective investigation into the related complaints. It also held that there had been a violation of Article 6 §§ 1 and 3 (c) of the Convention, finding that the admission of the statement of “surrender and confession” as evidence had rendered the applicant’s trial unfair. The Court observed in particular that the absence of a requirement, under Russian law, of access to a lawyer for such a statement had been used to circumvent the applicant’s right as a de facto suspect to legal assistance. This situation had resulted from the systematic application of legal provisions, as interpreted by the domestic courts. Moreover, in failing to conduct an independent careful assessment of the “quality” of the statement as evidence, and instead relying on the investigative authority’s findings, the domestic courts had legalised the police officers’ use of a statement of “surrender and confession” to document the applicant’s confession obtained as a result of his inhuman and degrading treatment after his apprehension on suspicion of having committed a crime. |
424 | Challenging the lawfulness of detention | II. RELEVANT DOMESTIC LAW AND PRACTICE 45. The relevant domestic law and practice are set out in detail in the Court’s judgment in the case of Raza v. Bulgaria (no. 31465/08, §§ 30-42, 11 February 2010). The following additional provisions of domestic law are relevant. 46. Under section 46(3) of the Aliens Act, deportation orders issued on national security grounds do not indicate the factual grounds for imposing the measure. 47. Under section 44a of the Aliens Act, deportation orders may not be executed by way of deportation to a country where there exists a risk to the person’s life or a risk of ill-treatment. 48. A similar prohibition is spelled out in section 4(3) of the Refugees and Asylum Act, in respect of persons who have obtained protection under the Act or have entered Bulgaria to seek such protection. Section 4(4) provides, however, that the right not to be returned to a country where the person concerned risks ill-treatment or death cannot be invoked by aliens, including refugees, about whom there are grounds to believe that they imperil national security. There is no reported case-law under section 4(4). 49. Under section 67(2) of the Refugees and Asylum Act, where the person to be deported has been granted refugee status, the deportation decision is to be annulled. In accordance with section 67(3) of the Act, however, the above does not apply where there are grounds to believe that the person concerned imperils national security or that, having been convicted of a serious criminal offence, he or she may pose a threat to public order. There is no reported case-law under section 67(3). 50. It follows from sections 42(1), 44(4)(3) and 46(4) of the Aliens Act that deportation orders issued on national security grounds are immediately enforceable and that the lodging of a judicial appeal does not suspend their enforcement. Enforcement may be postponed only by a decision of the relevant administrative body in the event of legal or technical obstacles hindering immediate execution (section 44b(1)). 51. In accordance with Article 166 § 2 of the Administrative Procedure Code, in pending appeal proceedings the interested party may request a stay of execution of an administrative decision on grounds of, inter alia, risk of significant or irreparable harm. In some of its decisions the Supreme Administrative Court has held that this does not apply with regard to deportation orders issued on national security grounds. That was so because immediate enforcement was provided for ex lege, in the Aliens Act, and the courts did not have the power to impose a stay of enforcement (see опред. № 1147.от 27.01.2009г. на ВАС по адм.д. № 393/2009г., where a request for a stay of deportation on the ground that the person concerned was seriously ill was refused). 52. In an interpretative decision of 8 September 2009 the Supreme Administrative Court revised its approach and stated that Article 166 § 2 of the Administrative Procedure Code applied even where the immediate enforceability of administrative decisions was provided for ex lege, with the exception of instances where the law did not provide for any judicial review. There is no reported case-law confirming that the interpretative decision also concerned the stay of enforcement of deportation orders on national security grounds. 53. Under section 48 of the Regulations for the implementation of the Aliens Act, in cases where deportation orders are enforced through removal by air, the person concerned shall be escorted by officers of the aliens’ control services to his country of citizenship or another country of his choice to which he may be admitted. THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 54. The first applicant complained that his detention had been in violation of Article 5 § 1. This provision reads, in so far as relevant: “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 against whom action is being taken with a view to deportation ...” A. Admissibility 55. The Government submitted that the above complaint was manifestly ill-founded. The first applicant disagreed. 56. The Court considers that the complaint under Article 5 § 1 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. The parties’ submissions 57. The first applicant submitted that throughout the duration of his detention the authorities had done “absolutely nothing” to implement the deportation order, the obstacles to his expulsion having all been obvious before 12 October 2006, the date of the detention order. In those circumstances the first applicant submitted that his detention did not fall under paragraph 1 (f) of Article 5. It was in any event unnecessarily and excessively lengthy. 58. In the first applicant’s view, his detention was furthermore unlawful as being contrary to domestic and international law, which prohibited deportation of refugees and, therefore, their detention pending deportation. Moreover, his continued detention for more than one month after 2 June 2009, when the judgment declaring null and void the order of 12 October 2006 had entered into force, had been wholly unlawful. 59. The first applicant also averred that the relevant domestic law did not meet the Convention standards of quality of the law since detention pending deportation was left to the discretion of the police without regard to the individual’s personal and family situation. 60. The Government submitted that the first applicant’s detention had been ordered in accordance with the law with a view to his deportation, in keeping with all procedural and substantive legal requirements. The length of the detention had been the result of difficulties in securing an identity document for Mr M. and the possibility of his admission to a safe third country. The first applicant had refused to cooperate in this respect, failing to present his refugee passport and thus contributing to the length of his detention. The lawfulness of his detention had been confirmed by the Supreme Administrative Court. 2. The Court’s assessment 61. Article 5 § 1 (f), which permits the State to control the liberty of aliens in the immigration context, does not demand that detention be reasonably considered necessary, for example, to prevent the individual from committing an offence or fleeing. Any deprivation of liberty under the second limb of Article 5 § 1 (f) will be justified, however, only for as long as deportation or extradition proceedings are in progress. If such proceedings are not prosecuted with due diligence, the detention will cease to be permissible under Article 5 § 1 (f) (see Chahal v. the United Kingdom, 15 November 1996, § 113, Reports of Judgments and Decisions 1996-V; A. and Others v. the United Kingdom [GC], no. 3455/05, § 164, ECHR 2009-...; Tabesh v. Greece, no. 8256/07, §§ 56 and 57, 26 November 2009; and Raza, cited above, § 72). 62. The deprivation of liberty must also be in conformity with the substantive and procedural rules of national law and in keeping with the purpose of protecting the individual from arbitrariness. 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 Saadi v. the United Kingdom [GC], no. 13229/03, § 67, ECHR 2008 ‑ ...). To avoid being branded as arbitrary, detention under Article 5 § 1 (f) must be carried out in good faith; it must be closely connected to the ground of detention relied on by the Government; the place and conditions of detention should be appropriate; and the length of the detention should not exceed that reasonably required for the purpose pursued (see A. and Others v. the United Kingdom, cited above, § 164). 63. In the present case, in so far as the first applicant submitted that his detention had been unlawful since Bulgarian and international law prohibited deportation of refugees, the Court, while considering that Mr M.’s refugee status may be relevant in the analysis as to whether “action [was] taken with a view to deportation” when he was detained, refers to its established case-law according to which under Article 5 § 1 (f) it is immaterial whether the underlying decision to expel can be justified under national or Convention law (see Chahal, cited above, § 112; Slivenko v. Latvia [GC], no. 48321/99, § 146, ECHR 2003-X; and Sadaykov v. Bulgaria, no. 75157/01, § 21, 22 May 2008). 64. The Court further notes that by the judgment of the Sofia City Court of 2 April 2009, which became final on 2 June 2009, the order of 12 October 2006 for the first applicant’s detention was declared null and void as it had been issued by an unauthorised official (see paragraph 38 above). The Court observes, however, that the order of 6 December 2005, which concerned not only the first applicant’s deportation but also his detention pending deportation, was never revoked (see paragraph 13, 23, 24 and 34 above). It is also noteworthy that the first applicant never argued that the effect of the judgment of 2 April 2009 was to deprive his detention of any legal basis retrospectively (see paragraph 57 above). 65. The Court will therefore proceed on the assumption that Mr M.’s deprivation of liberty was based on a valid legal act. 66. The salient issue in the present case is whether it can be said that “action [was] taken with a view to deportation” throughout the duration of the first applicant’s detention and, consequently, whether it was justified under Article 5 § 1(f). 67. The first applicant was deprived of his liberty for two years and eight and a half months (18 October 2006 to 3 July 2009). 68. As in the similar recent case of Raza (cited above), where the Court found a violation of Article 5 § 1, the length of the first applicant’s detention was not related to the proceedings he instituted against the deportation order since it was immediately enforceable at any time, regardless of whether judicial proceedings were pending. This remained valid throughout the relevant period as the first applicant’s request for a stay of execution was refused (see paragraphs 16, 29, 51 and 52 above). The above distinguishes the present case from the situation that obtained in, for example, Chahal (cited above) and Kolompar v. Belgium (24 September 1992, § 40, Series A no. 235-C). 69. The evidence concerning the exact reasons for the fact that the deportation order has not been enforced is not unequivocal. Its assessment is further frustrated by the fact that the deportation order did not specify the destination country, as this was not required under domestic law. Section 48 of the Regulations to the Aliens Act does not appear to clarify the matter sufficiently – it concerns technical issues, such as escorting the deportee, and, in any event, does not require that the destination country must be identified in a binding legal act. The Court considers that this legal regime and practice may be seen as problematic with regard to the requirement of legal certainty, inherent in all Convention provisions. Where deprivation of liberty is concerned, legal certainty must be strictly complied with in respect of each and every element relevant to the justification of the detention under domestic and Convention law. In cases of aliens detained with a view to deportation, lack of clarity as to the destination country could hamper effective control of the authorities’ diligence in handling the deportation. 70. The Court observes that the only obstacle to immediate deportation mentioned in the detention order of 12 October 2006 was the absence of direct flights from Bulgaria to Afghanistan (see paragraph 15 above). Before the Court, the Government referred to difficulties in providing Mr M. with an identity document and the lack of cooperation on his part. On the basis of the material submitted to it, the Court is unable to arrive at safe conclusions on the questions whether it was possible to deport Mr M. using a refugee passport, whether he refused to surrender his refugee passport valid until 6 April 2007 and whether it was possible to issue him with a new one (see paragraphs 19, 20 and 22 above). 71. It observes, however, that the first applicant’s deportation was ordered on 6 December 2005 and that the first effort on the part of the Bulgarian authorities to secure an identity document for his deportation was made in February 2007, when a letter was sent to the Afghan Embassy (see paragraphs 11-22 above). Furthermore, as the letter of February 2007 apparently remained unanswered, it cannot be considered that the Bulgarian authorities pursued the matter with diligence, seeing that their request was not reiterated until September 2008, a year and seven months later (see paragraph 21 above). During all that time Mr M. was in detention. Thus, the Court considers that the respondent Government have failed to establish that they took active and diligent steps to overcome the alleged difficulties concerning Mr M.’s identity papers. 72. As to the absence of direct flights to Afghanistan, the Court finds, similarly, that it has not been shown that any effort was made to resolve the ensuing difficulty, which, moreover, was apparently known even before the first applicant’s arrest (see paragraph 15 above). 73. It is true that after August 2008, when the Court adopted interim measures under Rule 39 of the Rules of Court, there was a legal obstacle to Mr M.’s deportation to Afghanistan. Where there are obstacles to deportation to a given country but other destinations are in principle possible, detention pending active efforts by the authorities to organise removal to a third country may fall within the scope of Article 5 § 1 (f) (see Gebremedhin [Gaberamadhien] v. France, no. 25389/05, §§ 74 and 75, ECHR 2007-V). 74. However, apart from their own statements for the purposes of the proceedings before the Court, the Government have not provided evidence of any effort having been made to secure the first applicant’s admission to a third country. 75. In view of the foregoing, the Court concludes that the grounds for Mr M.’s detention – action taken with a view to his deportation – did not remain valid for the whole period of his detention and that the authorities failed to conduct the proceedings with due diligence. Under Article 5 § 1 (f), the authorities were not entitled to keep Mr M. in detention where no meaningful “action with a view to deportation” was under way and actively pursued. 76. The Court observes, in addition, that although Mr M.’s deprivation of liberty was based on a valid legal act (see paragraphs 63 and 64 above), the existence of two separate orders for his detention, issued by two different departments of the Ministry of the Interior, appears to have been the source of uncertainty. In particular, the legal significance of the existence of two orders is unclear. Also, the duplication resulted in a situation where there were two independent sets of judicial proceedings concerning the lawfulness of Mr M.’s detention and no clarity as to whether the judicial decision repealing one of the detention orders actually affected the first applicant’s situation (see paragraphs 13, 14 and 23-28 above). Moreover, even after 2 June 2009, when the judgment revoking one of the two orders entered into force, the Director of the Migration Directorate of the national police continued referring to it as if it were valid, in disregard of the domestic court’s final ruling (see paragraphs 38 and 42 above). The situation described above was incompatible with the Contracting States’ duty under Article 5 of the Convention to secure a high level of legal certainty in matters concerning deprivation of liberty (see Tabesh, cited above, § 52). 77. On the basis of its conclusions in the two preceding paragraphs (see, for a similar approach, Louled Massoud v. Malta, no. 24340/08, §§ 66 and 67, 27 July 2010), the Court finds that there has been a violation of Article 5 § 1 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION 78. The first applicant complained that his right to judicial review of the lawfulness of his detention had been violated. He relied on Article 5 § 4, which reads as follows: “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” A. Admissibility 79. The Court finds that the complaint under Article 5 § 4 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 80. The first applicant submitted that in the proceedings against the order of 6 December 2005 he was denied judicial review of his detention and that the review provided in the proceedings against the order of 12 October 2006 did not meet the speediness requirement. 81. The Government submitted in reply that the domestic court had provided a full judicial review of the impugned measures against the first applicant. 82. The Court observes that, since two different governmental bodies had issued two separate orders for his detention, in October 2006 the first applicant sought judicial review of its lawfulness by appealing in separate proceedings against each of those two orders. In the first set of proceedings, the Supreme Administrative Court, applying the same defective approach that was criticised in the case of Raza (cited above, §§ 41 and 77), refused to examine the appeal. In the second set of proceedings, it was not until 2 April 2009, almost two and a half years later, that the first applicant obtained a judicial decision establishing that one of the orders for his detention had been signed by an unauthorised officer (see paragraphs 34 and 38 above). It has not been alleged that other avenues to obtain judicial review of the lawfulness of his detention were open to Mr M. 83. The situation described above discloses a serious failing on the part of the respondent State to secure, in the period prior to the legislative reform of May 2009 (see Raza, cited above, § 42), the enjoyment of the Convention right to take proceedings by which the lawfulness of detention falling under paragraph 1 (f) of Article 5 is decided speedily by a court. The Court reiterates that the Convention requirement for an act of deprivation of liberty to be amenable to independent judicial scrutiny is of fundamental importance in the context of the underlying purpose of Article 5 of the Convention to provide safeguards against arbitrariness (see Al-Nashif and Others v. Bulgaria, no. 50963/99, § 92, 20 June 2002). 84. There has therefore been a violation of Article 5 § 4. III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 85. All the applicants complained that the deportation order against Mr M. and his detention were in violation of their right to respect for their private and family life. They relied on Article 8, which reads, in so far as relevant: “1. Everyone has the right to respect for his private and family life... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” A. Admissibility 86. The Government submitted that the first applicant would not be deported to Afghanistan and that therefore he could not claim to be the victim of a violation of Article 8. The applicants contended in reply, inter alia, that their complaint under Article 8 did not concern the destination of Mr M.’s deportation but the very fact that the family would be separated if the deportation order was enforced. 87. The Court notes that the order for Mr M.’s deportation is final and enforceable. The Government have not disputed the applicants’ position that its enforcement would seriously affect their private and family life even if Mr M. were deported to a country other than Afghanistan and, moreover, have not provided any convincing argument that there was a realistic possibility of deporting Mr M. to a third country where the family could establish a family life (see paragraph 74 above). The Court thus finds that the Government’s objection is unsubstantiated and dismisses it. 88. It further finds that the complaint under Article 8 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. The parties’ submissions 89. The applicants alleged two separate violations of Article 8. The first concerned Mr M.’s detention, which in their view interfered in an arbitrary and disproportionate manner with their right to respect for their private and family life. The second concerned Mr M.’s deportation, which was arbitrary. The applicants averred that there was no evidence of any involvement of Mr M. in organising illegal border crossings and that in any event such activities could not be reasonably interpreted as a threat to national security. The applicants also claimed that domestic law did not require that evidence of the alleged unlawful activities be presented to and examined by an independent authority. 90. The Government stated that the factual and legal grounds for Mr M.’s expulsion had been impartially and thoroughly examined by the Supreme Administrative Court. That court had delivered well-reasoned judgments and had had regard to the applicants’ Convention rights. 2. The Court’s assessment 91. As to the first alleged violation of Article 8, the Court, having found that Mr M.’s detention was contrary to Article 5 § 1 of the Convention (see paragraph 77 above), considers that no separate issue arises under Article 8. 92. As to the second limb of the applicants’ complaint, the Court must examine whether the order for Mr M.’s expulsion, if enforced, would violate that provision. 93. In the present case the respondent Government have not disputed that the applicants had established a genuine “family life” in Bulgaria, within the meaning of Article 8, and that Mr M.’s deportation, if effected, would constitute interference by the State authorities with the applicants’ right to respect for their family life. In these circumstances, and having regard to the relevant facts and the manner in which the Government have argued the case (see paragraphs 6-11, 86 and 90 above), the Court finds no reason to hold otherwise (see also Raza, cited above, § 48). 94. Such interference will be in breach of Article 8 of the Convention unless it can be justified under paragraph 2 of that provision as being “in accordance with the law”, as pursuing one or more of the legitimate aims listed therein, and as being “necessary in a democratic society” in order to achieve the aim or aims concerned. 95. The first of these requirements, namely that any interference be “in accordance with the law”, does not merely dictate that the interference should have a basis in domestic law, but also relates to the quality of that law, requiring it to be compatible with the rule of law. The law must, moreover, afford a degree of legal protection against arbitrary interference by the authorities (see, among many other authorities, Kaushal and Others v. Bulgaria, no. 1537/08, § 26, 2 September 2010). 96. The Court observes that in a number of cases against Bulgaria it has found that deportations ordered on alleged national security grounds did not meet the Convention standard of lawfulness as the relevant law, procedures and practice did not offer even a minimum degree of protection against arbitrariness (see Al-Nashif and Others, cited above; Musa and Others v. Bulgaria, no. 61259/00, 11 January 2007; Hasan v. Bulgaria, no. 54323/00, 14 June 2007; Bashir and Others v. Bulgaria, no. 65028/01, 14 June 2007; C.G. and Others v. Bulgaria, no. 1365/07, 24 April 2008; Raza, cited above; and Kaushal and Others, cited above). 97. The last-mentioned three judgments ( C.G. and Others, Raza and Kaushal and Others ) concerned the same domestic legislation and practice as the present case. In particular, in C.G. and Others the Court found that, first, the domestic courts had allowed the executive to stretch the notion of national security beyond its natural meaning, and, secondly, those courts had not examined whether the executive was able to demonstrate the existence of specific facts serving as a basis for its assessment that the applicant presented a national security risk, and instead based its rulings solely on uncorroborated statements by the Ministry of the Interior. On that basis, the Court found that the interference with the applicants’ family life was not “in accordance with the law” (ibid., §§ 42-47 and 49). 98. In the present case the deportation order against Mr M. was based on a declaratory statement, contained in an internal document of the National Security Service of the Ministry of the Interior, according to which he was involved in trafficking of migrants and therefore represented a national security threat. This document, which has not been submitted to the Court, apparently did not mention the factual grounds and the evidence on which the declaration was based. As in the other similar cases against Bulgaria, it has not been alleged that Mr M. has ever been charged with related offences. Thus, the deportation order was issued on the basis of a purely internal assessment of undisclosed information. Furthermore, just as it did in the other cases cited above, the Supreme Administrative Court dismissed the appeal against the deportation order, considering itself bound by the above-mentioned declaratory statement. The court held that the governmental agency which had issued the statement had some sort of certification power, which had to be respected unconditionally. The court thus refused to inquire whether the allegations against Mr M. had any objective basis (see paragraphs 11, 24, 25 and 31 above). 99. In the Court’s view, the above practice of the Bulgarian Supreme Administrative Court fails to take into consideration the nature of the issue before it – an alleged interference by the executive with a fundamental human right. 100. The Court reiterates that the concepts of lawfulness and the rule of law in a democratic society require that measures affecting fundamental human rights must be subject to some form of adversarial proceedings before an independent body competent to review the reasons for the decision and relevant evidence, if need be with appropriate procedural adjustments related to the use of classified information (see Al-Nashif, cited above, §§ 123-24). The body in question must also be competent to examine whether the measures taken pursue a legitimate aim and are proportionate. 101. The individual must be able to challenge the executive’s assertion that national security is at stake. While the executive’s assessment of what poses a threat to national security will naturally be of significant weight, the independent authority must be able to react in cases where invoking that concept has no reasonable basis in the facts or reveals an interpretation of “national security” that is unlawful or contrary to common sense and arbitrary. Failing such safeguards, the police or other State authorities would be able to encroach arbitrarily on rights protected by the Convention (ibid.). 102. In the present case the Supreme Administrative Court failed to provide meaningful independent scrutiny of the deportation order against Mr M. It applied a formalistic approach and left a governmental agency full and uncontrolled discretion to “certify” blankly, with reference to little more than its own general statements, that an alien was a threat to national security and must be deported. As such “certifications” were based on undisclosed internal information and were held to be beyond any meaningful judicial scrutiny, there was no safeguard against arbitrariness. 103. Therefore, the applicants did not enjoy the minimum degree of protection against arbitrariness inherent in the concept of lawfulness within the meaning of the Convention. If the deportation order of 6 December 2005 is enforced, the resulting interference with the applicants’ family life would not be “in accordance with the law”, as required by Article 8 § 2 of the Convention. 104. In view of this conclusion, the Court is not required to examine the remaining issues, which concern the existence of a legitimate aim and proportionality. 105. It follows that there would be a violation of Article 8 of the Convention in the event of the deportation order of 6 December 2005 being enforced. IV. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 106. The first applicant complained that in the event of his deportation to Afghanistan the Bulgarian authorities would expose him to a high risk of inhuman treatment and that his life would be in immediate danger. In his initial application the first applicant relied on Articles 2 and 3 of the Convention. In subsequent submissions he stated that this complaint concerned Article 3 of the Convention. 107. The Court considers that the above complaint falls to be examined under Article 3, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. The parties’ submissions 108. The Government submitted that the first applicant could not claim to be the victim of the alleged violation of the Convention since the authorities had never intended and did not intend to deport him to Afghanistan. The authorities were conscious of the requirements of the Convention and other international instruments and would not expose Mr M. to any risk, however slight, of inhuman treatment. 109. In particular, the Government noted that the deportation order against the first applicant did not specify the country of destination. The order would be executed only if the Bulgarian authorities succeeded in obtaining identity papers for him and securing his admission to a safe third country, taking into account, moreover, Mr M.’s destination preferences. 110. The first applicant submitted in reply that the understanding that he would be deported to his country of origin, Afghanistan, was implicit in all actions by the authorities and in their communications with him. That was clear in particular from the letter of 1 February 2007 from the Director of Migration (see paragraph 27 above). Also, in the judicial proceedings the first applicant had built his defence on the existence of a risk of ill-treatment in Afghanistan and the Supreme Administrative Court had dealt with those arguments, clearly interpreting the deportation order to mean that he would be deported to Afghanistan. 111. Moreover, the statement that the first applicant would be deported to a third country had been made for the first time before the Court. In reality, there was nothing under domestic law to prevent the first applicant’s deportation to Afghanistan. 112. The first applicant further submitted that if deported to Afghanistan he would most likely be subjected to treatment contrary to Article 3 and his life would be in immediate danger. He referred to reports about the treatment in Afghanistan of persons who had converted from Islam to another religion. He also submitted that the danger in question had been acknowledged by the Bulgarian authorities and that, in accordance with the Court’s case-law, the allegation that he posed a threat to Bulgaria’s national security was irrelevant in the context of Article 3, which prohibited ill ‑ treatment in absolute terms. B. The Court’s assessment 113. The Court considers 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. 114. For the reasons set out below, the Court considers it unnecessary to deal with the question whether or not the Government’s assurances, not reflected in any binding legal act (compare Boutagni v. France, no. 42360/08, § 48, 18 November 2010), can be seen as removing the risk of Mr M. being returned to Afghanistan. 115. The Court refers to its finding above that the enforcement of the deportation order of 6 December 2005 would violate the applicants’ right under Article 8 to respect for their private and family life on the particular ground that the order against Mr M. was issued and reviewed in a manner which did not secure the minimum safeguards against arbitrariness and it did not, therefore, meet the Convention standards of lawfulness (see paragraphs 103-105 above). 116. 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 deporting Mr M. on the basis of a deficient order. 117. In these circumstances, there is no need to examine whether Mr M.’s deportation would also violate another Convention provision (see Hilal v. the United Kingdom, no. 45276/99, § 71, ECHR 2001 ‑ II; Daoudi v. France, no. 19576/08, § 78, 3 December 2009; and N. v. Finland, no. 38885/02, § 173, 26 July 2005) and it is no longer necessary to maintain the measures taken under Rule 39 of the Rules of Court. In the event of a new deportation order being issued against Mr M., it will be open to him to submit a new application and to request interim measures under Rule 39 of the Rules of Court (see Boutagni, cited above, § 48). 118. The Court finds, therefore, that it is not necessary to examine the complaint under Article 3 and discontinues the application of the measures indicated under Rule 39 of the Rules of Court. V. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 119. Lastly, the applicants complained that they did not have an effective remedy in relation to the alleged violations of their rights under Articles 3 and 8 of the Convention. Article 13 reads: “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 120. The Court finds that the applicants’ complaints under Articles 3 and 8 are arguable and that therefore Article 13 is applicable. 121. It further finds that the complaint under Article 13 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 122. The applicants alleged that the proceedings available to Mr M. under Bulgarian law did not secure adequate protection against violations of Articles 3 and 8. That was so because, inter alia, the Supreme Administrative Court provided only a limited and formalistic review of the grounds underlying the deportation order, accepting without evidence the statements of the National Security Service. Furthermore, the court had failed to consider the proportionality of the impugned measure which interfered with all the applicants’ family life. 123. The Government stated that the factual and legal grounds for Mr M.’s expulsion had been impartially and thoroughly examined by the Supreme Administrative Court. That court had delivered a well-reasoned judgment and had had regard to the applicants’ Convention rights. 124. In previous similar cases against Bulgaria (see C.G. and Others, Raza, and Kaushal and Others, all cited above), with regard to complaints under Article 13 in conjunction with Article 8, the Court found that proceedings for judicial review of an expulsion order citing national security grounds were deficient in two respects. Firstly, they did not involve meaningful scrutiny of the executive’s allegations. Secondly, the courts did not assess whether the interference with the applicants’ rights met a pressing social need and was proportionate to any legitimate aim pursued (see C.G. and Others, cited above, §§ 59-64). 125. In the present case, similarly, the Court has already found that the Supreme Administrative Court did not carry out a proper examination of the executive’s assertion that Mr M. presented a national security risk (see paragraphs 97-104 above). The Court also notes that, as in the cases cited above, the Supreme Administrative Court devoted no attention to questions of proportionality, apparently treating them as irrelevant (see paragraphs 24 and 30-34 above). It follows that the judicial review proceedings in the present case did not secure to the applicants the effective domestic remedy which Article 13 requires in respect of their complaint that Mr M.’s deportation would interfere arbitrarily and disproportionately with their private and family life. 126. The failure of the Supreme Administrative Court to carry out a proper examination of the executive’s assertion that Mr M. presented a national security risk, as established above, also undermined the effectiveness of this remedy with regard to the requirements of Article 13 in conjunction with Article 3. 127. In addition, in this context, the Court finds disturbing the approach of the Supreme Administrative Court on the question whether or not the alleged risks of ill-treatment and death in the event of Mr M.’s deportation to Afghanistan rendered the deportation order unlawful. In particular, while it apparently acknowledged the existence of such risks, the court placed on the first applicant the burden of proving that they stemmed from the Afghan authorities and that those authorities would not guarantee his safety (see paragraph 33 above). This approach appears deficient on two levels. First, it seems to place excessive reliance on the question whether the ill ‑ treatment risked in the receiving State would emanate from State or non ‑ State sources, whereas, in accordance with the Court’s established case ‑ law, this issue, albeit relevant, cannot be decisive (see, among others, N. v. Finland, no. 38885/02, §§ 163-165, 26 July 2005, and Salah Sheekh v. the Netherlands, no. 1948/04, §§ 137-149, ECHR 2007-I). Second, by dealing with such a serious issue summarily and by placing on the first applicant, without any explanation, the burden of proving negative facts, such as the lack of State guarantees in Afghanistan, the court practically deprived Mr M. of a meaningful examination of his claim under Article 3. The Court reiterates in this connection that in view of the importance which it attaches to Article 3 of the Convention and the irreversible nature of the damage which may result if the risk of ill-treatment materialises, the effectiveness of a remedy within the meaning of Article 13 imperatively requires independent and rigorous scrutiny by a national authority of any claim that there exist substantial grounds for fearing a real risk of treatment contrary to Article 3 (see M.S.S. v. Belgium and Greece [GC], no. 30696/09, § 293, 21 January 2011, with further references). 128. Finally, the Court notes with concern that yet another aspect of the requirements of Article 13 in conjunction with Article 3 was not complied with by the Bulgarian authorities. It observes that under Bulgarian law, whenever the executive chooses to mention national security as the grounds for a deportation order, appeals against such an order have no suspensive effect, even if an irreversible risk of death or ill-treatment in the receiving State is claimed (see paragraphs 16 and 50 above). Moreover, at least until September 2009, the Supreme Administrative Court held that under Bulgarian law there was no possibility of staying the enforcement of a deportation order issued on national security grounds (see paragraphs 51 and 52 above). In the present case, it appears that the first applicant’s request for a stay of his deportation pending the judicial review proceedings was left practically unexamined (see paragraph 29 above). Before the Court’s decision to apply Rule 39 of the Rules of Court, Mr M. could have been deported to Afghanistan at any moment and without a prior independent examination of his claim that such deportation would expose him to a serious risk to his life or physical integrity. While this did not happen (apparently, partly for reasons beyond the Bulgarian authorities’ control and partly because of delays in their actions (see paragraphs 69-75 above)), the issue to be examined is whether or not the available domestic remedies met the requirement of effectiveness under Article 13 and the Court’s case-law. Those requirements take the form of a guarantee and cannot be deemed to have been satisfied by a de facto arrangement (see Gebremedhin [Gaberamadhien], cited above, § 66). 129. The Court reiterates that the notion of an effective remedy under Article 13 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 Čonka v. Belgium, no. 51564/99, § 79, ECHR 2002-I, and Salah Sheekh, cited above, § 153). In the context of deportation, the domestic remedy for examination of allegations about serious risks of ill-treatment contrary to Article 3 in the destination country must have automatic suspensive effect (see Gebremedhin [Gaberamadhien], cited above, §§ 58 and 66, and M.S.S. v. Belgium and Greece [GC], cited above, § 293). As the prohibition provided by Article 3 against torture and inhuman or degrading treatment is of an absolute character, the activities of the individual in question, however undesirable or dangerous, cannot be a material consideration with the consequence that the protection afforded by Article 3 is broader than that provided for in Articles 32 and 33 of the 1951 United Nations Convention relating to the Status of Refugees (see Saadi v. Italy [GC], no. 37201/06, § 138, ECHR 2008 ‑ ...). By choosing to rely on national security in a deportation order the authorities cannot do away with effective remedies (see Al-Nashif, cited above, § 137). 130. In the light of the above-cited case-law, the Court considers that where there is an arguable claim about a substantial risk of death or ill ‑ treatment there can be no justification for a legal regime under which – as here – suspensive effect is denied as a matter of principle to appeals against a certain category of deportation orders. It finds that the Bulgarian law and practice in relation to stays of enforcement of deportation orders issued on purported national security grounds are incompatible with Article 13 as they do not guarantee automatic suspension of enforcement and do not secure a substantive, rigorous and independent examination of claims under Article 3 of the Convention prior to deportation. 131. All the serious deficiencies noted above lead the Court to the conclusion that the judicial review performed by the Supreme Administrative Court in the present case did not constitute an effective remedy within the meaning of Article 13 in relation to the applicants’ complaints under Articles 3 and 8. 132. It has not been suggested by the Government that any other remedies existed in Bulgarian law. 133. There has therefore been a violation of Article 13. VI. APPLICATION OF ARTICLE 46 OF THE CONVENTION 134. 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.” 135. 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). 136. 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, as a recent example, Viaşu v. Romania, no. 75951/01, 9 December 2008). 137. The Court observes that it has already delivered judgments against Bulgaria, where violations of Articles 5, 8 and 13 of the Convention, similar at least to a certain extent to those found in the present case, have been established (see Al-Nashif and Others, no. 50963/99, 20 June 2002; Musa and Others, no. 61259/00, 11 January 2007; Hasan, no. 54323/00, 14 June 2007; Bashir and Others, no. 65028/01, 14 June 2007; C.G. and Others, no. 1365/07, 24 April 2008; Sadaykov, no. 75157/01, 22 May 2008; Raza, no. 31465/08, 11 February 2010; Kaushal and Others, no. 1537/08, 2 September 2010 and Baltaji, no. 12919/04, 12 July 2011 (not final). A number of other similar cases against Bulgaria are pending before the Court. In view of the above, it appears necessary to assist the respondent Government in the execution of their duty under Article 46 of the Convention in the present case. 138. 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 Aliens Act or other Bulgarian legislation and such change of judicial practice in Bulgaria so as to ensure that: (i) even where national security is invoked as grounds of a deportation order, the factual basis and reasons for the conclusion that the alien must be deported should be subject to a thorough judicial scrutiny, if need be with appropriate procedural adjustments related to use of classified information; (ii) the court examining an appeal against deportation should balance the legitimate aim pursued by the deportation order against the fundamental human rights of the affected individuals, including their right to respect for their family life; (iii) the destination country should always be indicated in a legally binding act and a change of destination should be amenable to appeal; (iv) where an arguable claim about a substantial risk of death or ill ‑ treatment in the destination country is made in an appeal against deportation, that appeal should have automatic suspensive effect until the examination of the claim; and (v) claims about serious risk of death or ill ‑ treatment in the destination country should be examined rigorously by the courts. VII. 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. Damage 140. The applicants claimed 120,000 euros (EUR) in respect of non ‑ pecuniary damage for the violations of Article 5 and EUR 6,000 for the violation of Article 8. They did not formulate claims in relation to their other complaints. 141. The Government submitted that the finding of a violation would constitute sufficient just satisfaction. They argued, inter alia, that Mr M. was responsible for the length of his detention pending deportation as he had refused to cooperate and had not presented to the authorities an identity document valid for international travel. 142. The Court considers that the first applicant must have suffered distress as a result of the fact that his detention pending deportation was not justified throughout its duration and that he could not obtain a speedy review of its lawfulness. Making an assessment on an equitable basis, the Court awards him EUR 12,000 in respect of non-pecuniary damage for the violations of Article 5 in the present case. 143. As regards Article 8, the Court notes that its conclusion under that provision does not concern a violation that has already occurred and considers, therefore, that the finding of a violation constitutes sufficient just satisfaction (see Daoudi, cited above, § 82, and Raza, cited above, § 88, with further references). B. Costs and expenses 144. The applicants also claimed EUR 3,000 for legal fees in the proceedings before the Court. They submitted a legal fees agreement between them and their lawyer and a time sheet, according to which their lawyer had charged them for 37.5 hours of work at the hourly rate of EUR 80. The applicants requested that any award made in respect of costs and expenses should be payable directly into the bank account of their legal representative, Mr Y. Grozev. 145. The Government submitted that the number of hours and the hourly rate claimed were excessive. 146. 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 allow the claim for costs and expenses in full. C. Default interest 147. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 5 § 1 (right to liberty and security) of the Convention. The applicant had been detained for two years and eight-and-a-half months. While his deportation had been ordered in December 2005, the authorities had only attempted for the first time, in February 2007, to secure an identity document to make his deportation possible. Further, they had only reiterated their request a year and seven months later. During all that time the applicant had remained in detention. In addition, the Bulgarian Government had since shown that they had attempted to send him to a different safe country. Consequently, the applicant’s detention had not been justified throughout its duration, given the lack of diligence on the part of the Bulgarian authorities. The Court further held that there had been a violation of Article 5 § 4 (right to have lawfulness of detention decided speedily by a court) of the Convention. The applicant had argued, in two separate court proceedings, that his detention, ordered by two different acts, in December 2005 and October 2006, had been unlawful. In the first proceedings the courts had refused to examine his appeal, and in the second, the courts had only established, almost two-and-a-half years later, that the second order had been signed by an unauthorised officer. Therefore, the authorities had failed to ensure that the applicant could speedily challenge in court the lawfulness of his detention pending expulsion. |
261 | Article 3 (prohibition of torture and inhuman or degrading punishment or treatment) of the Convention | II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE A. Provisions on National Security Courts 52. Before the Constitution was amended on 18 June 1999, Article 143 provided that national security courts were to be composed of a president, two other full members and two substitute members. The president of the national security court, one of the full members and one of the substitute members were to be civilian judges, and the other full member and substitute member were to be military judges. 53. As amended by Law no. 4388 of 18 June 1999, Article 143 of the Constitution provides: “... National security courts shall be composed of a president, two other full members, a substitute member, a public prosecutor and a sufficient number of assistant prosecutors. The president, two full members, a substitute member and the public prosecutor shall be appointed from among judges and public prosecutors of the first rank and assistant prosecutors from among public prosecutors of other ranks. Appointments shall be made for four years by the Council of the National Legal Service, in accordance with procedures laid down in special legislation. Their terms of office shall be renewable ...” 54. The necessary amendments concerning the appointment of the judges and public prosecutors were made to Law no. 2845 on national security courts by Law no. 4390 of 22 June 1999. By the terms of provisional section 1 of Law no. 4390, the terms of office of the military judges and military prosecutors in service in the national security courts were to end on the date of publication of that Law (22 June 1999). By provisional section 3 of the same Law, proceedings pending in the national security courts on the date of publication of the Law were to continue from the stage they had reached by that date. B. Article 125 of the Turkish Criminal Code “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.” C. Review of the lawfulness of detention 55. The fourth paragraph of Article 128 of the Code of Criminal Procedure (as amended by Law no. 3842 of 18 November 1992) provides that any person who has been arrested and/or in respect of whom a prosecutor has made an order for his continued detention may challenge that measure before the appropriate district judge and, if successful, be released. 56. Section 1 of Law no. 466 on the payment of compensation to persons unlawfully arrested or detained provides: “Compensation shall be paid by the State in respect of all damage sustained by persons: (1) who have been arrested or detained under conditions or in circumstances incompatible with the Constitution or statute; (2) who have not been immediately informed of the reasons for their arrest or detention; (3) who have not been brought before a judicial officer after being arrested or detained within the time allowed by statute for that purpose; (4) who have been deprived of their liberty without a court order after the statutory time allowed for being brought before a judicial officer has expired; (5) whose close family have not been immediately informed of their arrest or detention; (6) who, after being arrested or detained in accordance with the law, are not subsequently committed for trial ..., or are acquitted or discharged after standing trial; (7) who have been sentenced to a term of imprisonment shorter than the period spent in detention or ordered to pay a pecuniary penalty only ...” 57. Article 144 of the Code of Criminal Procedure provides that, in principle, anyone arrested or detained pending trial may speak with his legal representative in private, whether or not the latter has an authority to act. The version of Article 144 that applied to proceedings in the national security courts at the material time was the version as worded prior to the amendments of 18 November 1992. It provided that members of the national legal service were entitled to be present at meetings between the accused and their lawyers before the commencement of the criminal proceedings. D. The Council of Europe and the death penalty 58. Protocol No. 6 to the Convention provides (Article 1) : “The death penalty shall be abolished. No one shall be condemned to such penalty or executed.” Article 2 of Protocol No. 6 provides: “A State may make provision in its law for the death penalty in respect of acts committed in time of war or of imminent threat of war; such penalty shall be applied only in the instances laid down in the law and in accordance with its provisions. The State shall communicate to the Secretary General of the Council of Europe the relevant provisions of that law.” Protocol No. 6 has been ratified by forty- four member States of the Council of Europe and signed by two others ( Monaco and Russia ). Protocol No. 13 to the Convention, which provides for the abolition of the death penalty in all circumstances, was opened for signature on 3 May 2002. The Preamble to Protocol No. 13 reads: “The member States of the Council of Europe signatory hereto, Convinced that everyone's right to life is a basic value in a democratic society and that the abolition of the death penalty is essential for the protection of this right and for the full recognition of the inherent dignity of all human beings; Wishing to strengthen the protection of the right to life guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms signed at Rome on 4 November 1950 (hereinafter referred to as'the Convention'); Noting that Protocol No. 6 to the Convention, concerning the Abolition of the Death Penalty, signed at Strasbourg on 28 April 1983, does not exclude the death penalty in respect of acts committed in time of war or of imminent threat of war; Being resolved to take the final step in order to abolish the death penalty in all circumstances, Have agreed as follows : ...” Article 1 of Protocol No. 13 states: “The death penalty shall be abolished. No one shall be condemned to such penalty or executed.” Protocol No. 13 has been signed by forty- three member States of the Council of Europe and ratified by twenty- nine. It came into force on 1 July 2003 after the tenth ratification. Three member States of the Council of Europe ( Armenia, Azerbaijan and Russia ) have not yet signed it. In its Opinion No. 233 (2002) on the Draft Protocol to the European Convention on Human Rights concerning the abolition of the death penalty in all circumstances, the Parliamentary Assembly of the Council of Europe referred to: “ 2. ... its most recent resolutions on the subject, Resolution 1187 (1999) on Europe: a death- penalty free continent, and Resolution 1253 (2001) on the abolition of the death penalty in Council of Europe Observer states, in which it reaffirmed its beliefs that the application of the death penalty constitutes inhuman and degrading punishment and a violation of the most fundamental right, that to life itself, and that capital punishment has no place in civilised, democratic societies governed by the rule of law. ” It further noted: “ 5. The second sentence of Article 2 of the European Convention on Human Rights still provides for the death penalty. It has long been in the interest of the Assembly to delete this sentence, thus matching theory with reality. This interest is strengthened by the fact that more modern national constitutional documents and international treaties no longer include such provisions. ” 59. Article X § 2 of the “ Guidelines on human rights and the fight against terrorism ”, issued by the Committee of Ministers of the Council of Europe on 11 July 2002, reads: “Under no circumstances may a person convicted of terrorist activities be sentenced to the death penalty; in the event of such a sentence being imposed, it may not be carried out.” E. Other international developments concerning the death penalty 60. In a number of cases involving the application of the death penalty, the United Nations Human Rights Committee has observed that if the due process guarantees in Article 14 of the International Covenant on Civil and Political Rights were violated, a sentence of death which was carried out would not be in conformity with Article 6 § 2 of the Covenant, that sets out the circumstances in which it is permissible to give effect to the death penalty. In Reid v. Jamaica (no. 250/1987), the Committee stated as follows: “[T]he imposition of a sentence of death upon the conclusion of a trial in which the provisions of the Covenant have not been respected constitutes ... a violation of Article 6 of the Covenant. As the Committee noted in its general comment 6(7), the provision that a sentence of death may be imposed only in accordance with the law and not contrary to the provisions of the Covenant implies that'the procedural guarantees therein prescribed must be observed, including the right to a fair hearing by an independent tribunal, the presumption of innocence, the minimum guarantees for the defence, and the right to review by a higher tribunal'.” Similar observations were made by the Committee in Daniel Mbenge v. Zaire (Communication no. 16/1977, 8 September 1977, UN Doc. Supp. no. 40, [A/38/40], at 134 [1983]) and Wright v. Jamaica ( Communication no. 349/1989, UN Doc. CCPR/C/45/D/349/1989 [1992]). In an advisory opinion on the right to information on consular assistance in the framework of the guarantees of due process of law (Advisory Opinion OC-16/99 of 1 October 1999), the Inter-American Court of Human Rights examined the implication of the guarantees of a fair procedure for Article 4 of the American Convention on Human Rights, which permitted the death penalty in certain circumstances. It stated: “134. It might be useful to recall that in a previous examination of Article 4 of the American Convention (Restrictions to the Death Penalty, Advisory Opinion OC-3/83 of 8 September, 1983, Series A No. 3) the Court observed that the application and imposition of capital punishment are governed by the principle that'[n]o one shall be arbitrarily deprived of his life'. Both Article 6 of the International Covenant on Civil and Political Rights and Article 4 of the Convention require strict observance of legal procedure and limit application of this penalty to'the most serious crimes'. In both instruments, therefore, there is a marked tendency toward restricting application of the death penalty and ultimately abolishing it. 135. This tendency, evident in other inter-American and universal instruments, translates into the internationally recognised principle whereby those States that still have the death penalty must, without exception, exercise the most rigorous control for observance of judicial guarantees in these cases. It is obvious that the obligation to observe the right to information becomes all the more imperative here, given the exceptionally grave and irreparable nature of the penalty that one sentenced to death could receive. If the due process of law, with all its rights and guarantees, must be respected regardless of the circumstances, then its observance becomes all the more important when that supreme entitlement that every human rights treaty and declaration recognises and protects is at stake: human life. 136. Because execution of the death penalty is irreversible, the strictest and most rigorous enforcement of judicial guarantees is required of the State so that those guarantees are not violated and a human life not arbitrarily taken as a result.” In Hilaire, Constantine and Benjamin et al. v. Trinidad and Tobago (judgment of 21 June 2002 ), the Inter-American Court stated: “Taking into account the exceptionally serious and irreparable nature of the death penalty, the observance of due process, with its bundle of rights and guarantees, becomes all the more important when human life is at stake. ” (paragraph 148) THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION 61. The applicant complained of violations of Article 5 §§ 1, 3 and 4 of the Convention, the relevant provisions of which read as follows: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ... 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.” The Government pleaded a failure to exhaust domestic remedies with regard to the complaints under Article 5 §§ 1, 3 and 4. The Grand Chamber considers this preliminary objection to be closely linked to the merits of the complaint under Article 5 § 4 and will therefore examine it with that complaint, which – like the Chamber – it will deal with first. A. Article 5 § 4 of the Convention 62. The applicant complained that, contrary to Article 5 § 4 of the Convention, he had not had an opportunity to take proceedings by which the lawfulness of his detention in police custody could be decided. 1. The applicant's submissions 63. The applicant asked the Grand Chamber to uphold the Chamber's finding that he had not had an effective remedy by which to have the lawfulness of his detention in police custody decided. He said that during the first ten days of his detention he had been held incommunicado and had been unable to contact his lawyers. He did not have the legal training that would have enabled him to lodge an appeal without the assistance of his lawyers. Nor had he been given access to the documents concerning his arrest that he needed to enable him to prepare such an appeal. The applicant maintained that in his case an application to a district judge or a judge of the National Security Court would have been an inadequate and illusory remedy that was bound to fail. 2. The Government's submissions 64. On this point, the Government contested the Chamber's reasons for finding that there had been a violation of Article 5 § 4. As they had done in the Chamber proceedings, they also raised a preliminary objection of failure to exhaust domestic remedies with regard to all the Article 5 complaints. Neither the applicant's lawyers nor his close relatives had lodged an application with the Mudanya Court of First Instance or a judge of the Ankara National Security Court to challenge his arrest or detention by the police, the length of such detention, or the order requiring his detention pending trial. The Government referred to Article 128 § 4 of the Code of Criminal Procedure, which entitled suspects to apply to the district judge to have the lawfulness of their detention decided or to challenge an order by the public prosecutor's office that they should remain in custody. If the district judge considered the application well-founded, he could order the police not to question the suspect further and to bring him or her before the public prosecutor forthwith. The Government added that by virtue of Article 144 of the Code of Criminal Procedure the applicant's representatives did not require a written authority to make such an application. 65. The Government provided the Grand Chamber with examples of decisions in which the courts had examined applications from persons in police custody for a decision on the lawfulness of their detention and, in the absence of an order from the public prosecutor authorising their continued detention, had made an order for the prisoners to be brought before the judge responsible for pre-trial detention at the end of the statutory period for which they could be held in police custody. Each of the applications referred to by the Government was decided on the papers, in the absence of the prisoner. 3. The Court's assessment 66. The remedy required by Article 5 § 4 must be of a judicial nature, which implies that “the person concerned should have access to a court and the opportunity to be heard either in person or, where necessary, through some form of representation, failing which he will not have been afforded the fundamental guarantees of procedure applied in matters of deprivation of liberty” (see Winterwerp v. the Netherlands, judgment of 24 October 1979, Series A no. 33, p. 24, § 60). Furthermore, Article 5 § 4 requires that the court invited to rule on the lawfulness of the detention should have jurisdiction to order release if the detention is unlawful (see Weeks v. the United Kingdom, judgment of 2 March 1 987, Series A no. 114, p. 30, § 61). 67. In addition, in accordance with the generally recognised rules of international law, there may be special grounds for releasing the applicant from the obligation to exhaust the available domestic remedies (see Van Oosterwijck v. Belgium, judgment of 6 November 1980, Series A no. 40, pp. 18-19, §§ 36-40). 68. Having examined the examples of judicial decisions produced by the Government, the Court finds that the domestic courts'review of the lawfulness of the detention in these cases (which concerned the arrest, the police custody or the length of such custody) did not comply with the requirements of Article 5 § 4 in two respects. Firstly, in none of the decisions did the domestic courts order the prisoner's release, not even when they found that the statutory period had expired or the public prosecutor had failed to order the prisoner's continued detention. They merely referred the persons concerned to the judge responsible for pre-trial detention. Secondly, in none of the proceedings that resulted in the decisions cited by the Government did the person detained appear before the court. The judge's review was carried out solely on the papers following an application by the lawyer concerned. 69. The judicial decisions on which the Government relied in seeking to demonstrate the effectiveness of this remedy were delivered in 2001 and 2003, that is to say at least two years after the applicant's arrest and detention in the present case. 70. As regards the special circumstances in which the applicant found himself while in police custody, the Court sees no reason to disagree with the Chamber's finding that the circumstances of the case made it impossible for the applicant to have effective recourse to the remedy referred to by the Government. In its judgment, the Chamber reasoned as follows (see the judgment of 12 March 2003, §§ 72-74): “ ... Firstly, the conditions in which the applicant was held and notably the fact that he was kept in total isolation prevented him using the remedy personally. He possessed no legal training and had no possibility of consulting a lawyer while in police custody. Yet, as the Court has noted above ..., the proceedings referred to in Article 5 § 4 must be judicial in nature. The applicant could not reasonably be expected under such conditions to be able to challenge the lawfulness and length of his detention without the assistance of his lawyer. ... Secondly, as regards the suggestion that the lawyers instructed by the applicant or by his close relatives could have challenged his detention without consulting him, the Court observes that the movements of the sole member of the applicant's legal team to possess an authority to represent him were obstructed by the police ... The other lawyers, who had been retained by the applicant's family, found it impossible to contact him while he was in police custody. Moreover, in view of the unusual circumstances of his arrest, the applicant was the principal source of direct information on events in Nairobi that would have been relevant, at that point in the proceedings, for the purposes of challenging the lawfulness of his arrest. ... Lastly, solely with regard to the length of time the applicant was held in police custody, the Court takes into account the seriousness of the charges against him and the fact that the period spent in police custody did not exceed that permitted by the domestic legislation. It considers that, in those circumstances, an application on that issue to a district judge would have had little prospect of success.” 71. As to the Government's assertion before the Chamber that the applicant could have claimed compensation under Law no. 466, the Grand Chamber also considers that such a claim cannot constitute proceedings of the type required by Article 5 § 4 for the reasons set out in paragraph 75 of the Chamber judgment, namely the court's lack of jurisdiction to order release if the detention is unlawful or to award reparation for a breach of the Convention if the detention complies with domestic law. 72. For the aforementioned reasons, the Court dismisses the preliminary objection in respect of the complaints under Article 5 §§ 1, 3 and 4 of the Convention. It further holds for the same reasons that there has been a violation of Article 5 § 4. B. Article 5 § 1 of the Convention 73. The applicant complained that he had been deprived of his liberty unlawfully, without the applicable extradition procedure being followed. He alleged a violation of Article 5 § 1 of the Convention on that account. 1. The applicant's submissions 74. The applicant contested the Chamber's findings that his detention by Turkish officials was lawful and that his interception by Kenyan officials and transfer to the Turkish aircraft where Turkish officials were waiting for him could not be regarded as a violation of Kenyan sovereignty or international law. In that connection, he maintained that there was prima facie evidence that he had been abducted by the Turkish authorities operating abroad, beyond their jurisdiction, and that it was for the Government to prove that the arrest was not unlawful. The fact that arrest warrants had been issued by the Turkish authorities and a Red Notice circulated by Interpol did not give officials of the Turkish State jurisdiction to operate abroad. On that point, the applicant denied that he was a terrorist and affirmed that his activities were part of the Kurds'struggle to assert their rights. 75. The applicant pointed out that no proceedings had been brought to extradite him from Kenya and that the Kenyan authorities had denied all responsibility for his transfer to Turkey. Mere collusion between Kenyan officials operating without authority and the Turkish government could not constitute inter-State cooperation. The Kenyan Minister for Foreign Affairs had stated on 15 February 1999 that the Kenyan authorities had played no role in the applicant's departure and that there had been no Turkish troops in Kenyan territory. The applicant submitted that the Chamber should have attached greater importance to that ministerial announcement, which, in his submission, showed there had been no cooperation between the two governments. The applicant further suggested that the Kenyan officials involved in his arrest had been bribed by Turkish agents and had acted without the authority of the Kenyan government. 76. The applicant referred to the case-law of the Convention institutions in Cyprus v. Turkey (no. 800 7/77, Commission decision of 10 July 1978, Decisions and Reports (DR) 13, p. 85) and Drozd and Janousek v. France and Spain (judgment of 26 June 1992, Series A no. 240, p. 29, § 91), and submitted that Turkey was responsible for acts performed by its officials beyond its borders. He maintained that he had been arrested as a result of an operation that had been planned in Turkey, Italy, Greece and other States. 77. Referring to Bozano v. France (judgment of 18 December 1986, Series A no. 111, p. 23, § 54), the applicant stressed the need to protect individuals'liberty and security from arbitrariness. He said that in the instant case his forced expulsion had amounted to extradition in disguise and had deprived him of all procedural and substantive protection. He pointed out in that connection that the requirement of lawfulness under Article 5 § 1 applied to both international and domestic law. Contracting States were under an obligation not just to apply their laws in a non-arbitrary manner, but also to ensure that their laws complied with public international law. The applicant added that the guarantees against wrongful deprivation of liberty to which everyone was entitled could not be extinguished by certainty as to the defendant's guilt. 78. In his submission, the Commission's decision in Sánchez Ramirez v. France (no. 28780/95, Commission decision of 24 June 1996, DR 86 - B, p. 155) was not relevant to the present case. Whereas in the aforementioned case there had been cooperation between France and Sudan, the Kenyan authorities had not cooperated with the Turkish authorities in the instant case. In the former case, the Commission had taken the view that the applicant was indisputably a terrorist, whereas Mr Öcalan and the PKK had had recourse to force in order to assert the right of the population of Kurdish origin to self-determination. 79. Relying on the case-law of various national courts (the House of Lord's decision in R. v. Horseferry Road Magistrates'Court, ex parte Bennett [1994] 1 Appeal Cases 42; the decision of the Court of Appeal of New Zealand in Reg. v. Hartley [1978] 2 New Zealand Law Reports 199; the decision of the United States Court of Appeals (2nd Circuit, 1974) in United States v. Toscanino 555 Federal Reporter (Second Series) 267-68; the decision of 28 May 2001 of the Constitutional Court of South Africa in Mohamed and Dalvie v. President of the Republic of South Africa and Others 2001 (3) South African Law Reports 893 ( CC ) ), the applicant maintained that the arrest procedures that had been followed did not comply with Kenyan law or the rules established by international law, that his arrest amounted to an abduction, and that his detention and trial, which were based on that unlawful arrest, had to be regarded as null and void. 80. The applicant also submitted that, contrary to what the Chamber had found, he could not be expected to prove “beyond reasonable doubt” that the operation by Turkish officials on Kenyan territory in the instant case had violated Kenyan sovereignty. He was merely required to adduce prima facie evidence that it had in order for the burden of proof to shift to the respondent Government to show that there had been no violation of Kenyan sovereignty. 2. The Government's submissions 81. The Government agreed with and supported the Chamber's view that in this type of case cooperation between States confronted with terrorism was normal and did not infringe the Convention. On that point, they maintained that the applicant had been arrested and detained in accordance with a procedure prescribed by law, following cooperation between two States, Turkey and Kenya. They noted that the applicant had entered Kenya not as an asylum-seeker, but by using false identity papers, and added that since Kenya was a sovereign State, Turkey had no means of exercising its authority there. They also pointed out that there was no extradition treaty between Kenya and Turkey. The applicant had been apprehended by the Kenyan authorities and handed over to the Turkish authorities by way of cooperation between the two States. On his arrival in Turkey, he had been taken into custody under arrest warrants issued by the proper and lawful judicial authorities in Turkey, in order to be brought before a judge (the Turkish courts had issued seven warrants for the applicant's arrest before his capture and Interpol had circulated a Red Notice with regard to him ). There had been no extradition in disguise: Turkey had accepted the Kenyan authorities'offer to hand over the applicant, who was in any event an illegal immigrant in Kenya. 82. The applicant had thus been brought before a Turkish judicial authority at the end of a lawful procedure, in conformity with customary international law and the policy of cooperation between sovereign States in the prevention of terrorism. 3. The Court's assessment (a) General principles 83. The Court will consider the complaint in the light of the following principles. On the question whether detention is “lawful”, including whether it complies with “a procedure prescribed by law”, the Convention refers back essentially to national law and lays down the obligation to conform to the substantive and procedural rules thereof. However, it requires in addition that any deprivation of liberty should be consistent with the purpose of Article 5, namely to protect individuals from arbitrariness. What is at stake here is not only the “right to liberty” but also the “right to security of person” (see, among other authorities, Bozano, cited above, p. 23, § 54, and Wassink v. the Netherlands, judgment of 27 September 1990, Series A no. 185-A, p. 11, § 24). 84. It is in the first place for the national authorities, notably the courts, to interpret and apply domestic law. However, since under Article 5 § 1 failure to comply with domestic law entails a breach of the Convention, it follows that the Court can and should exercise a certain power to review whether this law has been complied with (see Benham v. the United Kingdom, judgment of 10 June 1996, Reports of Judgments and Decisions 1996 ‑ III, p. 753, § 41, and Bouamar v. Belgium, judgment of 29 February 1988, Series A no. 129, p. 21, § 49). 85. An arrest made by the authorities of one State on the territory of another State, without the consent of the latter, affects the person concerned's individual rights to security under Article 5 § 1 (see, to the same effect, Stocké v. Germany, judgment of 19 March 1991, Series A no. 199, opinion of the Commission, p. 24, § 167). 86. The Convention does not prevent cooperation between States, within the framework of extradition treaties or in matters of deportation, for the purpose of bringing fugitive offenders to justice, provided that it does not interfere with any specific rights recognised in the Convention ( ibid., pp. 24-25, § 169). 87. As regards extradition arrangements between States when one is a party to the Convention and the other is not, the rules established by an extradition treaty or, in the absence of any such treaty, the cooperation between the States concerned are also relevant factors to be taken into account for determining whether the arrest that has led to the subsequent complaint to the Court was lawful. The fact that a fugitive has been handed over as a result of cooperation between States does not in itself make the arrest unlawful and does not therefore give rise to any problem under Article 5 (see Freda v. Italy, no. 8916/80, Commission decision of 7 October 1980, DR 21, p. 250; Altmann (Barbie) v. France, no. 10689/83, Commission decision of 4 July 1984, DR 37, p. 225; and Reinette v. France, no. 14009/88, Commission decision of 2 October 1989, DR 63, p. 189). 88. Inherent in the whole of the Convention is the search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights. As movement about the world becomes easier and crime takes on a larger international dimension, it is increasingly in the interest of all nations that suspected offenders who flee abroad should be brought to justice. Conversely, the establishment of safe havens for fugitives would not only result in danger for the State obliged to harbour the protected person, but also tend to undermine the foundations of extradition (see Soering v. the United Kingdom, judgment of 7 July 1989, Series A no. 161, p. 35, § 89). 89. The Convention contains no provisions concerning the circumstances in which extradition may be granted, or the procedure to be followed before extradition may be granted. Subject to it being the result of cooperation between the States concerned and provided that the legal basis for the order for the fugitive's arrest is an arrest warrant issued by the authorities of the fugitive's State of origin, even an atypical extradition cannot as such be regarded as being contrary to the Convention (see Sánchez Ramirez, cited above ). 90. Irrespective of whether the arrest amounts to a violation of the law of the State in which the fugitive has taken refuge – a question that only falls to be examined by the Court if the host State is a party to the Convention – the Court requires proof in the form of concordant inferences that the authorities of the State to which the applicant has been transferred have acted extra-territorially in a manner that is inconsistent with the sovereignty of the host State and therefore contrary to international law (see, mutatis mutandis, Stocké, cited above, p. 19, § 54). Only then will the burden of proving that the sovereignty of the host State and international law have been complied with shift to the respondent Government. However, the applicant is not required to adduce proof “beyond all reasonable doubt” on this point, as was suggested by the Chamber ( see paragraph 92 of the Chamber judgment ). (b) Application of the principles to the present case (i) Whether the arrest complied with Turkish law 91. The Court notes that the applicant was arrested by members of the Turkish security forces inside an aircraft registered in Turkey in the international zone of Nairobi Airport. It is common ground that, directly after being handed over to the Turkish officials by the Kenyan officials, the applicant was effectively under Turkish authority and therefore within the “jurisdiction” of that State for the purposes of Article 1 of the Convention, even though in this instance Turkey exercised its authority outside its territory. It is true that the applicant was physically forced to return to Turkey by Turkish officials and was under their authority and control following his arrest and return to Turkey (see, in this respect, the aforementioned decisions in Sánchez Ramirez and Freda, and, by converse implication, Banković and Others v. Belgium and Others ( dec. ) [GC], no. 52207/99, ECHR 2001- XII ). 92. As to whether the arrest complied with Turkish domestic law, the Court notes that the Turkish criminal courts had issued seven warrants for the applicant's arrest while Interpol had put out a Red Notice. In each of these documents, the applicant was accused of criminal offences under the Turkish Criminal Code, namely founding an armed gang with a view to undermining the territorial integrity of the State and instigating a series of terrorist acts that had resulted in the loss of life. Following his arrest and on the expiry of the statutory period for which he could be held in police custody the applicant was brought before a court. Subsequently, he was charged, tried and convicted of offences under Article 125 of the Criminal Code. It follows that his arrest and detention complied with orders that had been issued by the Turkish courts “for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence”. (ii) Interception by Kenyan agents 93. The Court must decide in the light of the parties'arguments whether the applicant's interception in Kenya immediately before he was handed over to Turkish officials on board the aircraft at Nairobi Airport was the result of acts by Turkish officials that violated Kenyan sovereignty and international law (as the applicant submitted), or of cooperation between the Turkish and Kenyan authorities in the absence of any extradition treaty between Turkey and Kenya laying down a formal procedure (as the Government submitted). 94. The Court will begin by examining the evidence on the actual role played by the Kenyan authorities in the present case. The applicant entered Kenya without declaring his identity to the immigration officers. However, once they had been informed of the applicant's presence at the Greek embassy in Nairobi, the Kenyan authorities invited the Greek ambassador, with whom the applicant was staying in Nairobi, to arrange for the applicant to leave Kenyan territory. Shortly before the applicant was due to leave Kenya, more precisely as he was being transferred from the Greek embassy to the airport, Kenyan officials intervened and separated the applicant from the Greek ambassador. The car in which the applicant was travelling was driven by a Kenyan official, who took him to the aircraft in which Turkish officials were waiting to arrest him. 95. The Kenyan authorities did not perceive the applicant's arrest by the Turkish officials on board an aircraft at Nairobi Airport as being in any way a violation of Kenyan sovereignty. In sum, neither aspect of the applicant's detention – whether his interception by the Kenyan authorities before his transfer to the airport, or his arrest by the Turkish officials in the aircraft – led to an international dispute between Kenya and Turkey or to any deterioration in their diplomatic relations. The Kenyan authorities did not lodge any protest with the Turkish government on these points or claim any redress from Turkey, such as the applicant's return or compensation. 96. The Kenyan authorities did, however, issue a formal protest to the Greek government, accompanied by a demand for the Greek ambassador's immediate recall, on the grounds that the applicant had entered Kenya illegally with the help of Greek officials and was unlawfully staying there. The applicant was not welcome in Kenya and the Kenyan authorities were anxious for him to leave. 97. These aspects of the case lead the Court to accept the Government's version of events: it considers that at the material time the Kenyan authorities had decided either to hand the applicant over to the Turkish authorities or to facilitate such a handover. 98. The applicant has not adduced evidence enabling concordant inferences (see paragraph 90 above) to be drawn that Turkey failed to respect Kenyan sovereignty or to comply with international law in the present case. The Grand Chamber agrees with the Chamber's finding that: “ ... The Court is not persuaded by the statement by the Kenyan Minister for Foreign Affairs on 16 February 1999 that, contrary to what the applicant maintained, the Kenyan authorities had had no involvement in the applicant's arrest or transfer ... While it is true that the applicant was not arrested by the Kenyan authorities, the evidence before the Court indicates that Kenyan officials had played a role in separating the applicant from the Greek ambassador and in transporting him to the airport immediately preceding his arrest on board the aircraft.” (see paragraph 100 of the Chamber judgment) 99. Consequently, the applicant's arrest on 15 February 1999 and his detention were in accordance with “a procedure prescribed by law” for the purposes of Article 5 § 1 of the Convention. There has, therefore, been no violation of that provision. C. Article 5 § 3 of the Convention 100. The applicant alleged that, contrary to Article 5 § 3 of the Convention, he had not been brought “promptly” before a judge or other officer authorised by law to exercise judicial power. 1. The applicant's submissions 101. The applicant asked the Grand Chamber to uphold the Chamber's finding of a violation under this provision as there had been no need for him to be detained for seven days before being brought before a judge. He said that he had been arrested before 11 p.m. on 15 February 1999 and brought before a judge on 23 February 1999. The weather report produced by the Government which spoke of bad weather conditions concerned only the afternoon of 23 February 1999. 2. The Government's submissions 102. The Government contested the Chamber's finding of a violation in respect of this complaint. They pointed out that at the material time the Turkish rules of criminal procedure permitted police custody to be extended to seven days when the person detained was suspected of terrorist-related offences. In the instant case, the applicant had been arrested on 16 February 1999 and taken into police custody for an initial period of four days ending on 20 February 1999. On the latter date, a court order had been made extending the period to be spent in police custody by three days, that is to say until 23 February 1999. Owing to adverse weather conditions (there was a storm in the region), the representatives of the public prosecutor's office and judge of the National Security Court did not reach the island of İmralı until 22 February 1999. The public prosecutor had questioned the applicant that same day. The applicant had appeared before the judge the following day ( 23 February 1999 ) and the judge had ordered his detention pending trial after hearing his representations. 3. The Court's assessment 103. The Grand Chamber notes at the outset the importance of the guarantees afforded by Article 5 § 3 to an arrested person. The purpose of this provision is to ensure that arrested persons are physically brought before a judicial authority promptly. Such automatic expedited judicial scrutiny provides an important measure of protection against arbitrary behaviour, incommunicado detention and ill-treatment (see, among other authorities, Brannigan and McBride v. the United Kingdom, judgment of 26 May 1993, Series A no. 258-B, p. 55, §§ 62-63; Aquilina v. Malta [GC], no. 25642/94, § 49, ECHR 1999 ‑ III; Brogan and Others v. the United Kingdom, judgment of 29 November 1988, Series A no. 145 ‑ B, pp. 31-32, § 58; and Dikme v. Turkey, no. 20869/92, § 66, ECHR 2000- VIII ). 104. Having examined the parties'arguments, the Grand Chamber sees no good reason to disagree with the Chamber's findings, which were as follows: “106. The Court has already noted on a number of occasions that the investigation of terrorist offences undoubtedly presents the authorities with special problems ( see Brogan and Others v. the United Kingdom, judgment of 29 November 1988, Series A no. 145-B, p. 33, § 61; Murray v. the United Kingdom, judgment of 28 October 1994, Series A no. 300-A, p. 27, § 58; and Aksoy v. Turkey, [ judgment of 18 December 1996, Reports 1996-VI ], p. 2282, § 78). This does not mean, however, that the investigating authorities have carte blanche under Article 5 to arrest suspects for questioning, free from effective control by the domestic courts and, ultimately, by the Convention supervisory institutions, whenever they choose to assert that terrorism is involved ( see Sakık and Others v. Turkey, [ judgment of 26 November 1997, Reports 1997-VII ], pp. 2623-24, § 44). 107. The Court notes that the police custody in issue commenced with the applicant's arrest either very late on 15 February 1999 or very early on 16 February 1999. The applicant was held in police custody for four days until 20 February 1999. On that date a judicial order was made extending the period by three days, that is to say until 23 February 1999. The public prosecutor questioned the applicant on 22 February 1999. The applicant appeared before a judge for the first time on 23 February 1999 and the judge, who was without any doubt an'officer'within the meaning of Article 5 § 3 (see, among other authorities, Sakık and Others, cited above, p. 2615, § 12, and p. 2624, § 45 ), ordered his detention pending trial. The total period thus spent by the applicant in police custody before being brought before a judge came to a minimum of seven days. 108. The Court notes that in Brogan and Others it held that a period of four days and six hours in police custody without judicial supervision fell outside the strict constraints as to time permitted by Article 5 § 3, even when the aim was to protect the community as a whole from terrorism (see Brogan and Others, cited above, p. 33, § 62). 109. The Court cannot accept the Government's argument that adverse weather conditions were largely responsible for the period of seven days it took for the applicant to be brought before a judge. No evidence has been adduced before the Court that establishes that the judge attempted to reach the island on which the applicant was being held so that the latter could be brought before him within the total statutory period of seven days allowed for police custody. The Court observes in that connection that the police custody ran its ordinary course under the domestic rules. In addition to the four days ordered by the public prosecutor's office itself, the judge granted an additional period of three days after examining the case on the basis of the file. It seems unlikely that the judge would have granted the additional time had he intended to have the applicant brought before him before it expired. 110. The Court cannot, therefore, accept that it was necessary for the applicant to be detained for seven days without being brought before a judge.” 105. In the light of all the foregoing considerations, the Court holds that there has been a violation of Article 5 § 3 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION A. Whether the Ankara National Security Court, which convicted the applicant, was independent and impartial 106. The applicant alleged that he had not been tried by an independent and impartial tribunal, since a military judge had sat on the bench during part of the proceedings in the National Security Court. He relied on Article 6 § 1 of the Convention, the relevant part of which provides: “In the determination of ... any criminal charge against him, everyone is entitled to a ... hearing ... by an independent and impartial tribunal ...” 1. The applicant's submissions 107. The applicant asked the Grand Chamber to uphold the Chamber's finding of a violation on this issue. He said that a judge holding the rank of colonel in the army had sat on the bench of the National Security Court during most of the proceedings. The military judge had been replaced by a civilian judge just one week before the applicant's conviction and two months after the hearings before the National Security Court had started. In the meantime, in a case that concerned a conflict between the organisation led by the applicant and the army in which the military judge was an officer, the military judge had taken part in important interlocutory rulings and discussed the case with the other judges, thereby potentially influencing the conduct and outcome of the proceedings. 2. The Government's submissions 108. The Government contested the Chamber's finding that the last-minute replacement of the military judge was incapable of curing the defect in the composition of the court or of remedying the resulting violation of Article 6. They pointed out that the military judge had left the National Security Court following legislative amendments. All the members of the court that had convicted the applicant were civilian judges. As regards the period prior to the military judge's replacement, the Government noted that a civilian substitute judge had been following the proceedings from the start and had attended the hearings. In addition, the military judge had been replaced by the substitute judge before the stage in the proceedings in which evidence was gathered had ended. Had the substitute judge considered that the National Security Court needed to make further investigations, he could have voted against making an order to close that stage of the proceedings. 109. The Government invited the Grand Chamber to follow the Court's decision in İmrek v. Turkey ((dec.), no. 57175/00, 28 January 2003), in which it held that the replacement of a military judge by a civilian judge in the course of criminal proceedings had solved the problem regarding the independence and impartiality of the national security court concerned. 110. They objected in particular to the Chamber's use of the “last minute” criterion in its judgment in the present case. That criterion would have been valid had the new judge not been given sufficient time to examine the interlocutory decisions taken up to that point or been precluded from issuing new ones. However, in the Government's submission, the replacement judge had been given both the time and the means necessary to play an active role in the decision-making process. 111. The Government further maintained that the applicant himself had had no doubts about the independence and impartiality of the National Security Court. He had in fact expressed his confidence in that court at a hearing at which the military judge had been present. It mattered little that the applicant's lawyers had subsequently contradicted Mr Öcalan's remark in their submissions. The most important point was that that remark – which had been made of the applicant's own free will and expressed his confidence in the court – had been sincere. 3. The Court's assessment 112. The Court has consistently held that certain aspects of the status of military judges sitting as members of the national security courts made their independence from the executive questionable (see Incal v. Turkey, judgment of 9 June 1998, Reports 1998-IV, p. 1572, § 68, and Çıraklar v. Turkey, judgment of 28 October 1998, Reports 1998 - VII, p. 3073, § 39). 113. It is understandable that the applicant – prosecuted in a national security court for serious offences relating to national security – should have been apprehensive about being tried by a bench that included a regular army officer belonging to the military legal service. On that account he could legitimately fear that the National Security Court might allow itself to be unduly influenced by considerations that had nothing to do with the nature of the case (see, among other authorities, Iprahim Ülger v. Turkey, no. 57250/00, 29 July 2004 ). 114. As to whether the military judge's replacement by a civilian judge in the course of the proceedings before the verdict was delivered remedied the situation, the Court considers, firstly, that the question whether a court is seen to be independent does not depend solely on its composition when it delivers its verdict. In order to comply with the requirements of Article 6 regarding independence, the court concerned must be seen to be independent of the executive and the legislature at each of the three stages of the proceedings, namely the investigation, the trial and the verdict (those being the three stages in Turkish criminal proceedings according to the Government). 115. Secondly, when a military judge has participated in one or more interlocutory decisions that continue to remain in effect in the criminal proceedings concerned, the accused has reasonable cause for concern about the validity of the entire proceedings, unless it is established that the procedure subsequently followed in the national security court sufficiently dispelled that concern. More specifically, where a military judge has participated in an interlocutory decision that forms an integral part of proceedings against a civilian, the whole proceedings are deprived of the appearance of having been conducted by an independent and impartial court. 116. In its previous judgments, the Court attached 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 ( see, among other authorities, Incal, cited above, p. 1573, § 72). Such a situation seriously affects the confidence the courts must inspire in a democratic society (see, mutatis mutandis, Piersack v. Belgium, judgment of 1 October 1982, Series A no. 53, pp. 14-15, § 30). 117. In the instant case, the Court notes that before his replacement on 23 June 1999 the military judge was present at two preliminary hearings and six hearings on the merits, when interlocutory decisions were taken. It further notes that none of the decisions were renewed after the replacement of the military judge and that all were validated by the replacement judge. 118. In these circumstances, the Court cannot accept that the replacement of the military judge before the end of the proceedings dispelled the applicant's reasonably held concern about the trial court's independence and impartiality. In so far as the decision or reasoning in İmrek, cited above, may be regarded as inconsistent with this conclusion, the Grand Chamber will not follow the decision and the reasoning in that case. Consequently, there has been a violation of Article 6 § 1 of the Convention on this point. B. Whether the proceedings in the National Security Court were fair 119. The applicant complained that the provisions of Article 6 §§ 1, 2 and 3 of the Convention had been infringed owing to the restrictions and difficulties he had encountered in securing assistance from his lawyers, gaining access – for both himself and his lawyers – to the case file, calling defence witnesses and securing access for his lawyers to all the information held by the prosecution. He also alleged that the media had influenced the judges to his detriment. 120. The relevant part of Article 6 of the Convention reads as follows: “1. ... everyone is entitled to a fair ... hearing within a reasonable time ... 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; ...” 1. The applicant's submissions 121. The applicant asked the Grand Chamber to uphold the Chamber's finding that he had not had a fair trial. He set out the principal reasons why he considered that his trial failed to satisfy the requirements of Article 6. He observed that unfettered, confidential and prompt access to legal assistance of one's choosing at all stages of the proceedings from the instant a person is detained was one of the fundamental requirements of a fair hearing in a democratic society. In the present case, however, he had had difficulty contacting his lawyers and that had affected his defence rights. In that connection, he explained that his lawyers had not been allowed to visit him until ten days after his arrest, by which time he had already made statements to the judicial authorities. He had also encountered difficulties in appointing lawyers of his choice, and that process had taken some time. His first meeting with his lawyers had taken place in the presence of members of the security forces. The other visits by his lawyers had been overseen and listened in to by the authorities and filmed with a video camera. Ultimately, the applicant considered that he had not been able to confer in private with his lawyers, in breach of the mandatory provisions of the Code of Criminal Procedure. After two short initial visits, contact with his lawyers had been limited to two weekly visits of an hour each. In proceedings that had been conducted extremely quickly and had produced an enormous case file, the total duration of the visits had been manifestly insufficient for him to prepare his defence. In any event, the applicant's lawyers had not enjoyed the same facilities as the members of the prosecution for travelling to the place of detention and the trial centre. 122. The applicant stressed that for the purposes of preparing the defence it had been vital for him and his lawyers to be given full, effective access to all the documents in the case file, including documents whose relevance to the issues of guilt and sentencing was only potential. However, his lawyers had not been permitted to provide him with a copy of the trial papers or any other material that would assist him in the preparation of his defence. He had been obliged to write out his defence by hand, without having access to any of the documents in the case file other than the bill of indictment, with which he had already been provided. 123. Furthermore, because of the speed with which the proceedings had been conducted, his lawyers had had difficulty in consulting all the documents in the file. They were given access to the case file, which ran to 17,000 pages, just sixteen days before the hearings started. The defence's ability to analyse the documents had been further hampered by, inter alia, the restrictions imposed throughout the investigation on communications between the applicant and his lawyers. The National Security Court had nonetheless dismissed an application by the applicant's lawyers for additional evidence to be taken. The applicant added that, while before the National Security Court he had accepted political responsibility for the PKK's general policy, he had denied criminal liability for acts of violence that went beyond the PKK's stated policy. It had been with a view to highlighting the rapprochement between the PKK and the government that the applicant had made a request for the members of the government team that had led the negotiations with the PKK to be heard as defence witnesses. 124. In conclusion, the applicant said that he had not enjoyed equality of arms with the prosecution in preparing his defence, in particular as a result of the difficulties that had prevented him and his lawyers from having sufficient time to confer in private, obtaining effective access to the case file and putting forward his defence in a secure environment. 2. The Government's submissions 125. The Government disagreed with the Chamber's findings regarding the fairness of the applicant's trial; in their submission, it had been fair. In that connection, they observed firstly that the applicant had been convicted under Article 125 of the Criminal Code, the aim of which was to protect the democratic values of the Republic. The Criminal Divisions of the Turkish Court of Cassation, sitting in plenary session, had held that the PKK was an organisation that resorted to force and acts of violence with a view to bringing about the secession of part of Turkish territory to form a Kurdish State with a political regime based on Marxist-Leninist ideology. The acts of violence perpetrated by the PKK and acknowledged by the applicant at his trial had involved some 6,036 armed attacks on civilians, 8,257 armed confrontations with the security forces, 3,071 bomb attacks, 388 armed robberies and 1,046 kidnappings. Those acts came within the list of terrorist acts set out in Articles 1 and 2 of the European Convention on the Suppression of Terrorism. The Government noted that the applicant had admitted before the courts that he had played a role in the creation and organisation of the PKK and in the planning and perpetration of acts of violence committed by members of that organisation. 126. As regards the rights of the defence, the Government noted that the applicant had had a public hearing, had been able to participate fully in the hearings with the help of the special measures taken to ensure his safety, had addressed the court without being interrupted, and had said everything he wished to say in his defence. They said that the applicant had been provided with every facility for the preparation of his defence: he had been able to consult the lawyers of his choice during both the preliminary investigation and the trial and, with the exception of the first visit, the only restrictions to which his lawyers'visits had been subject were those set out in the Code of Criminal Procedure. Furthermore, the applicant's lawyers had made no request to see their client at more frequent intervals. There had been no restrictions on the applicant's correspondence and he had been able to lodge with the National Security Court eighty pages of defence submissions he had drafted himself. 127. As regards the applicant's access to the case file, the Government maintained that even before the hearings on the island of İmralı the applicant's lawyers had been given an opportunity to photocopy all the documents in the case file. The 17,000 -page case file had, in fact, been compiled from the case files in seven sets of criminal proceedings that had already been instituted in various national security courts several years before the applicant's arrest, and the applicant was already familiar with the papers. In any event, very few new documents had been added to the case file. The Government asserted that the National Security Court had communicated all the relevant documents to the applicant and allowed him to study the case file and any annexes he wished to see under the supervision of two officials. It had also informed the applicant that it would provide him with a copy of any document he thought might assist him with his defence. The applicant had in fact had sufficient time (twenty days) in which to acquaint himself with the relevant material in the case file. 128. On this point, the Government also argued that, contrary to what the Chamber had found, the Court's case-law in Kremzow v. Austria (judgment of 21 September 1993, Series A no. 268-B, p. 42, § 52) and Kamasinski v. Austria (judgment of 19 December 1989, Series A no. 168, pp. 39 -40, § 88) was applicable in the instant case. There was no requirement under that case-law for the accused to be given direct access to the case file. It was sufficient for him to be apprised of its content by his representatives. Requiring such access to be afforded in the prosecution of organised crime would discriminate against those accused of ordinary offences. Furthermore, the applicant had acknowledged his responsibility for the acts of the PKK, the organisation he had led before his arrest. Even if he had examined the acts of the other PKK members in greater detail, he would not have found any evidence to assist him in his defence. 129. Among the other facilities that had been made available to assist the applicant with his defence, a photocopier had been installed in the hearing room for the use of the lawyers, on the instructions of the President of the National Security Court. Furthermore, the lawyers had been taken to the island of İmralı by boat, embarking at a private quay for security reasons. Hotel rooms had been reserved for them near the embarkation point. If the lawyers were not present at a hearing, transcripts of the hearing and copies of any fresh documentary evidence had been delivered to them the next day. Counsel for the applicant had thanked the President of the National Security Court for establishing a dispassionate atmosphere. 3. The Court's assessment 130. The Court considers that in order to determine whether the rights of the defence were respected in the criminal proceedings against the applicant, it is necessary to examine the legal assistance available to him and the access he and his lawyers were given to the case file. (a) Legal assistance (i) The applicant's lack of access to a lawyer while in police custody 131. The Grand Chamber sees no reason to disagree with the Chamber's finding that the applicant's lack of access to a lawyer while in police custody adversely affected his defence rights. The Grand Chamber agrees with the reasoning of the Chamber, which was as follows: “ ... The Court reiterates that Article 6 may also be relevant before a case is sent for trial if and in so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with it ( see Imbrioscia v. Switzerland, judgment of 24 November 1993, Series A no. 275, p. 13, § 36). The manner in which Article 6 §§ 1 and 3 (c) are applied during the investigation depends on the special features of the proceedings and the facts of the case. Article 6 will normally require that the accused be allowed to benefit from the assistance of a lawyer from the initial stages of police interrogation. However, this right, which is not explicitly set out in the Convention, may be subject to restrictions for good cause. The question, in each case, is whether the restriction, in the light of the entirety of the proceedings, has deprived the accused of a fair hearing ( see John Murray v. the United Kingdom, judgment of 8 February 1996, Reports 1996-I, pp. 54-55, § 63). ... In the present case, the applicant was questioned by the security forces, a public prosecutor and a judge of the National Security Court while being held in police custody in Turkey for almost seven days, from 16 February 1999 to 23 February 1999. He received no legal assistance during that period and made several self-incriminating statements that were subsequently to become crucial elements of the indictment and the public prosecutor's submissions and a major contributing factor in his conviction. ... As to whether the applicant had waived his right to consult a lawyer, the Court notes that on the day after his arrest, his lawyer in Turkey, Mr Feridun Çelik (who already possessed a valid authority), sought permission to visit him. However, Mr Çelik was prevented from travelling by members of the security forces. In addition, on 22 February 1999 sixteen lawyers who had been retained by the applicant's family sought permission from the National Security Court to visit the applicant, but their request was turned down by the authorities on 23 February 1999. ... In these circumstances, the Court is of the view that to deny access to a lawyer for such a long period and in a situation where the rights of the defence might well be irretrievably prejudiced is detrimental to the rights of the defence to which the accused is entitled by virtue of Article 6 ( see, mutatis mutandis, Magee [ v. the United Kingdom, no. 28135/95 ], §§ 44-45 [, ECHR 2000-VI] ).” (ii) Consultation with his lawyers out of the hearing of third parties 132. In the absence of any specific observations by the parties on this point in the proceedings before it, the Grand Chamber endorses the Chamber's findings: “ ... the applicant's first visit from his lawyers took place under the supervision and within sight and hearing of members of the security forces and a judge, all of whom were present in the same room as the applicant and his lawyers. The security forces restricted the visit to twenty minutes. The record of the visit was sent to the National Security Court. ... As regards subsequent visits, ... the Court accepts that meetings between the applicant and his lawyers after the initial visit took place within hearing of members of the security forces, even though the security officers concerned were not in the room where the meetings took place.” 133. The Grand Chamber agrees with the Chamber's assessment of the effects of the applicant's inability to consult his lawyers out of the hearing of third parties: “ ... an accused's right to communicate with his legal representative out of the hearing of a third person is part of the basic requirements of a fair trial in a democratic society and follows from Article 6 § 3 (c) of the Convention. If a lawyer were unable to confer with his client and receive confidential instructions from him without such surveillance, his assistance would lose much of its usefulness, whereas the Convention is intended to guarantee rights that are practical and effective ( see S. v. Switzerland, judgment of 28 November 1991, Series A no. 220, pp. 15- 16, § 48). The importance to the rights of the defence of ensuring confidentiality in meetings between the accused and his lawyers has been affirmed in various international instruments, including European instruments (see Brennan v. the United Kingdom, no. 39846/98, §§ 38-40, ECHR 2001-X). However, as stated above ... restrictions may be imposed on an accused's access to his lawyer if good cause exists. The relevant issue is whether, in the light of the proceedings taken as a whole, the restriction has deprived the accused of a fair hearing. ... In the present case, the Court accepts ... that the applicant and his lawyers were unable to consult out of the hearing of the authorities at any stage. It considers that the inevitable consequence of that restriction, which was imposed during both the preliminary investigation and the trial, was to prevent the applicant from conversing openly with his lawyers and asking them questions that might prove important to the preparation of his defence. The rights of the defence were thus significantly affected. ... The Court observes in that connection that the applicant had already made statements by the time he conferred with his lawyers and made further statements at hearings before the National Security Court after consulting them. If his defence to the serious charges he was required to answer was to be effective, it was essential that those statements be consistent. Accordingly, the Court considers that it was necessary for the applicant to be able to speak with his lawyers out of the hearing of third parties. ... As to the Government's contention that the supervision of the meetings between the applicant and his lawyers was necessary to ensure the applicant's security, the Court observes that the lawyers had been retained by the applicant himself and that there was no reason to suspect that they threatened their client's life. They were not permitted to see the applicant until they had undergone a series of searches. Mere visual surveillance by the prison officials, accompanied by other measures, would have sufficed to ensure the applicant's security.” Consequently, the Court holds that the fact that it was impossible for the applicant to confer with his lawyers out of the hearing of members of the security forces infringed the rights of the defence. (iii) Number and length of the visits by the applicant's lawyers 134. After the first two visits by his lawyers, which were approximately two weeks apart, contact between the applicant and his lawyers was restricted to two one-hour visits per week. 135. Having examined the parties'arguments, the Grand Chamber sees no good reason to disagree with the following findings of the Chamber: “ ... while Article 6 § 3 (c) confers on everyone charged with a criminal offence the right to'defend himself in person or through legal assistance ...', it 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 ( see Quaranta v. Switzerland, judgment of 24 May 1991, Series A no. 205, p. 16, § 30). 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 a counsel does not in itself ensure the effectiveness of the assistance he may afford an accused ( see Artico v. Italy, judgment of 13 May 1980, Series A no. 37, pp. 15- 16, § 33). The Court also points out that the manner in which Article 6 §§ 1 and 3 (c) are to be applied during the preliminary investigation depends on the special features of the proceedings involved and on the circumstances of the case; in order to determine whether the aim of Article 6 – a fair trial – has been achieved, regard must be had to the entirety of the domestic proceedings conducted in the case ( see Imbrioscia, cited above, pp. 13- 14, § 38). ... The Court observes that, in the instant case, the charges against the applicant included numerous acts of violence perpetrated by an illegal armed organisation and that he was alleged to be the leader of that organisation and the principal instigator of its acts. The Court further notes that the presentation of those highly complex charges generated an exceptionally voluminous case file ... It considers that in order to prepare his defence to those charges the applicant required skilled legal assistance equal to the complex nature of the case. It finds that the special circumstances of the case did not justify restricting the applicant to a rhythm of two one-hour meetings per week with his lawyers in order to prepare for a trial of that magnitude. ... With respect to the Government's argument that visits took place in accordance with the frequency and departure times of the ferries between the island of İmralı and the coast, the Court considers that, while the Government's decision to hold the applicant in an island prison far from the coast is understandable in view of the exceptional security considerations in the case, restricting visits to two one-hour visits a week is less easily justified. It notes that the Government have not explained why the authorities did not permit the lawyers to visit their client more often or why they failed to provide more adequate means of transport, thereby increasing the length of each individual visit, when such measures were called for as part of the'diligence'the Contracting States must exercise in order to ensure that the rights guaranteed by Article 6 are enjoyed in an effective manner ( see Colozza [ v. Italy, judgment of 12 February 1985, Series A no. 89 ], pp. 14- 15, § 28). ... As to the Government's argument that the applicant's lawyers organised press conferences after each visit and acted as spokespersons for the PKK, the Court holds that any such conduct on their part could not justify the restrictions in issue, since restrictions cannot be placed on the rights of the defence for reasons that are not directly related to the trial. In addition, there is no evidence before the Court that any complaint was lodged in Turkey against the applicant's lawyers for acting as spokespersons for the PKK.” 136. The Government's argument before the Grand Chamber that the applicant's lawyers had not asked to see him at more frequent intervals must also be rejected. The Court reiterates that waiver of the exercise of a right guaranteed by the Convention must be established in an unequivocal manner (see, mutatis mutandis, Pfeifer and Plankl v. Austria, judgment of 25 February 1992, Series A no. 227, pp. 16 -17, § 37). It notes that there was in fact a complaint by the applicant's lawyers to the National Security Court about the difficulties they had encountered in communicating with their client. 137. Consequently, the Court considers that the restriction on the number and length of the applicant's meetings with his lawyers was one of the factors that made the preparation of his defence difficult. (b) The applicant's access to the case file 138. The Court must next examine whether the fact that the applicant was prevented from obtaining communication of the documents in the case file (apart from the bill of indictment) until 4 June 1999 violated the rights of the defence, as guaranteed by Article 6 § 1, taken together with the rights guaranteed by Article 6 § 3, as it was not until the hearing on that date that the National Security Court gave the applicant permission to consult the case file under the supervision of two registrars and gave his lawyers permission to provide him with copies of certain documents. 139. The Court will first examine the submission made by the Government before the Grand Chamber that the decisions in Kremzow and Kamasinski, both cited above, are applicable in the instant case. These authorities establish that an accused does not have to be given direct access to the case file, it being sufficient for him to be informed of the material in the file by his representatives. The Court also notes that, relying on those same authorities, the Government have already argued before the Chamber that restricting the right to inspect the court file to an accused's lawyer is not incompatible with the rights of the defence. 140. When examining these issues, the Court will have regard to its case-law to the effect that under 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 disadvantage vis-à-vis his opponent. In this context, importance is attached to appearances as well as to the increased sensitivity to the fair administration of justice (see, among other authorities, Bulut v. Austria, judgment of 22 February 1996, Reports 1996-II, p. 359, § 47). The Court further considers that respect for the rights of the defence requires that limitations on access by an accused or his lawyer to the court file must not prevent the evidence being made available to the accused before the trial and the accused being given an opportunity to comment on it through his lawyer in oral submissions (see, mutatis mutandis, Kremzow, cited above, p. 44, § 63). 141. As regards the relevant facts in the present case, the Grand Chamber agrees with the following findings of the Chamber: “ ... in the instant case, the applicant was not permitted to inspect the evidence produced by the prosecution personally before the hearings. When the applicant's lawyers made their comments on that evidence, they had yet to obtain the applicant's observations following a direct inspection of the documentation. The fact that the applicant was given permission on 2 June 1999 to consult the case file under the supervision of two registrars did little to remedy that situation, in view of the considerable volume of documents concerned and the short time available to the applicant.” 142. The Grand Chamber therefore considers that the present case is distinguishable from Kremzow, in which the applicant had twenty-one days in which to examine forty-nine pages, in contrast to Mr Öcalan, who had twenty days in which to examine a case file containing some 17,000 pages. The present case is also distinguishable from Kamasinski, in which the applicant's lawyer was able to pass on to his client copies of all the documents he considered relevant. Mr Öcalan's lawyers were not able to provide him with any documents before submitting their comments on the prosecution evidence. 143. The Government's argument that a more detailed examination by the applicant of the material relating to the acts of the other members of the PKK would not have permitted him to find evidence to assist him in his defence as he had already acknowledged responsibility for the acts of the PKK also warrants examination by the Court. It should be noted that while the applicant admitted before the National Security Court that he was the leader of the PKK, an armed separatist organisation, and responsible for the general policy of that organisation, he did not specifically comment on each act of violence committed by PKK members. He did say in his defence, however, that certain acts of violence had been committed against his will or beyond his control. It is thus reasonable to assume that, had he been permitted to study the prosecution evidence directly for a sufficient period, the applicant would have been able to identify arguments relevant to his defence other than those his lawyers advanced without the benefit of his instructions. 144. The Court therefore holds that the fact that the applicant was not given proper access to any documents in the case file other than the bill of indictment also served to compound the difficulties encountered in the preparation of his defence. (c) Access by the applicant's lawyers to the court file 145. Together with the issue of the applicant's access to his case file, the Court must also determine whether, in the instant case, the lawyers'access to the documents in the case file was restricted, either formally or in practice, and, if so, whether the restrictions affected the fairness of the proceedings. 146. The principle of equality of arms is only 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, judgment of 28 August 1991, Series A no. 211, pp. 27 -28, §§ 66-67). 147. In the present case, the bill of indictment was served on the applicant and his lawyers on 24 April 1999. The court file was placed at the disposal of the applicant's lawyers on 7 May 1999, but they were not provided with a copy. The applicant's lawyers finished photocopying the documents on 15 May 1999. They were in possession of the full file in the case from that date onwards. Two weeks later, on 31 May 1999, the hearings before the National Security Court began. The applicant's lawyers were invited to make their final submissions – in reply to the prosecution's submissions – at the eighth substantive hearing, which was held on 23 June 1999. In these circumstances, the Grand Chamber agrees with the Chamber's findings regarding the difficulties the applicant's lawyers encountered in gaining access to the court file, which were exacerbated by the same kinds of problem the applicant had experienced: “ ... the applicant's lawyers received a 17,000- page file approximately two weeks before the beginning of the trial in the National Security Court. Since the restrictions imposed on the number and length of their visits made it impossible for the applicant's lawyers to communicate the documents in the file to their client before 2 June 1999 or to involve him in its examination and analysis, they found themselves in a situation that made the preparation of the defence case particularly difficult. Subsequent developments in the proceedings did not permit them to overcome those difficulties: the trial proceeded apace; the hearings continued without interruption until 8 June 1999; and on 23 June 1999 the applicant's lawyers were invited to present their submissions on all the evidence in the file, including that taken at the hearings.” (d) The Court's conclusion regarding the fairness of the trial 148. Accordingly, the applicant's trial was unfair for the following reasons : he had no assistance from his lawyers during questioning in police custody; he was unable to communicate with his lawyers out of the hearing of third parties; he was unable to gain direct access to the case file until a very late stage in the proceedings; restrictions were imposed on the number and length of his lawyers'visits; and, lastly, his lawyers were given proper access to the case file belatedly. 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) and (c). 149. As regards the other complaints under Article 6 of the Convention, the Court considers that it has already dealt with the applicant's main grievances arising out of the proceedings against him in the domestic courts. It therefore holds that it is unnecessary to examine the other complaints under Article 6 relating to the fairness of the proceedings. III. DEATH PENALTY: ALLEGED VIOLATION OF ARTICLES 2, 3 AND 14 OF THE CONVENTION 150. The applicant maintained that the imposition and/or execution of the death penalty constituted a violation of Article 2 of the Convention – which should be interpreted as no longer permitting capital punishment – as well as an inhuman and degrading punishment in violation of Article 3. He also claimed that his execution would be discriminatory and, therefore, in breach of Article 14. The relevant parts of these provisions provide: Article 2 “1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. ... ” 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. Implementation of the death penalty 151. In his initial application, the applicant complained that any recourse to the death penalty would violate both Articles 2 and 3 of the Convention. 152. In its judgment, the Chamber said that it considered that the threat of implementation of the death sentence had been effectively removed (see paragraphs 184- 85 of the Chamber judgment). 153. The parties did not comment on this issue in the subsequent proceedings. 154. In this connection, the Court notes that the death penalty has been abolished in Turkey and the applicant's sentence has been commuted to life imprisonment. Furthermore, on 12 November 2003 Turkey ratified Protocol No. 6 to the Convention concerning the abolition of the death penalty. 155. In these circumstances, the complaints the applicant made in his initial application of violations of Articles 2, 3 and 14 on account of the implementation of the death penalty must be dismissed. Accordingly, there has been no violation of those provisions on that account. B. Imposition of the death penalty 156. The Grand Chamber agrees with the Chamber that no separate issue arises under Article 2 with respect to the imposition of the death penalty. It will therefore examine this point under Article 3. 1. The parties'submissions (a) The applicant 157. The applicant asked the Grand Chamber to pursue the reasoning of the Chamber as regards the abolitionist trend established by the practice of the Contracting States and to take it a stage further by concluding that the States had, by their practice, abrogated the exception set out in the second sentence of Article 2 § 1 of the Convention and that the death penalty constituted inhuman and degrading treatment within the meaning of Article 3. In that connection, he repeated the observations he had submitted to the Chamber (see paragraphs 175- 79 of the Chamber judgment). When the Convention was signed in 1950, the death penalty was not perceived as a degrading and inhuman punishment in Europe and was provided for in the legislation of a number of States. Since that time there had been de facto abolition throughout Europe. Such developments should be seen as an agreement by Contracting States to amend Article 2 § 1. 158. No construction of Article 2 should permit a State to inflict inhuman and degrading treatment since the death penalty per se constituted such treatment in breach of Article 3 of the Convention. In that latter respect, the following submissions were made. 159. Developments in international and comparative law showed that the death penalty could also be seen to be contrary to international law. In that respect, reference was made, inter alia, to a judgment of the South African Constitutional Court in which it was held that the death penalty was contrary to the South African Constitution's prohibition of cruel, inhuman or degrading treatment ( see S. v. Makwanyane (1995) (6) Butterworths Constitutional Law Reports 665), and to the judgment of the Canadian Supreme Court in United States v. Burns [ 2001 ] Supreme Court Reports 283, where that court, in a case concerning the extradition of a fugitive to the United States of America, considered capital punishment to amount to cruel and unusual punishment. The United Nations Human Rights Committee had also held that execution of a death sentence constituted cruel and inhuman treatment contrary to Article 6 of the International Covenant on Civil and Political Rights (see paragraph 60 above). Reference was also made to similar statements by the Hungarian Constitutional Court and the Constitutional Courts of Ukraine, Albania, Lithuania and Republika Srpska (within Bosnia and Herzegovina ). 160. Finally, the applicant maintained that the imposition of the death penalty by a court that failed to satisfy the requisite standards of the Convention and permitted violations of the applicant's rights under Article 6 also violated Articles 2 and 3. (b) The Government 161. The Government disagreed with the Chamber's finding that the imposition of the death penalty following an unfair trial constituted a violation of Article 3. They observed, firstly, that neither the applicant nor his lawyers had presented any argument on this point. Secondly, even assuming that the Court had decided of its own motion to examine the case under Article 3, it would be difficult if not impossible to do so in view of the nature of Article 3. Inhuman treatment within the meaning of Article 3 was based on a subjective concept, that is to say fear and anguish felt by the applicant that reached the level proscribed by Article 3. In the absence of such a complaint, it was not possible for the Court to put itself in the applicant's position. In the Government's submission, the conclusion reached by the Chamber was contrary to an earlier admissibility decision of the Commission in Çınar v. Turkey ( no. 178 64/91, Commission decision of 5 September 1994, DR 79 -A, p. 5) and to Sertkaya v. Turkey ( (dec.), no. 77113/01, 11 December 2003 ). In those decisions, the Convention institutions found that the applicants had not felt fear or anguish as the moratorium on the implementation of the death penalty had eliminated any risk of their being executed. The applicant's situation was identical to that of Mr Çınar and Mr Sertkaya, and the guarantees that the death penalty would not be carried out were, if anything, firmer in his case: as the applicant's case file had never been sent to Parliament, the procedure allowing the death penalty to be implemented was never set in motion. In addition, the Turkish government's moratorium on the implementation of the death penalty was unconditional and no offences or individuals were excluded from its scope. The Government had complied with the interim measure ordered by the Court under Rule 39 requiring them to stay the applicant's execution. There was a broad consensus in Parliament in Turkey that the applicant should not be executed, the composition of Parliament at the material time being the same as when it abolished the death penalty. The Government submitted that there was no evidential basis for the Chamber's finding, nor could it be justified by the Court's request for a stay of execution of the death penalty. Lastly, the Turkish government's decision to comply with the European norms on capital punishment had eliminated all risk that the applicant would be executed. 2. The Court's assessment (a) Legal significance of the practice of the Contracting States as regards the death penalty 162. The Court must first address the applicant's submission that the practice of the Contracting States in this area can be taken as establishing an agreement to abrogate the exception provided for in the second sentence of Article 2 § 1, which explicitly permits capital punishment under certain conditions. In practice, if Article 2 is to be read as permitting capital punishment, notwithstanding the almost universal abolition of the death penalty in Europe, Article 3 cannot be interpreted as prohibiting the death penalty since that would nullify the clear wording of Article 2 § 1 (see Soering, cited above, pp. 40-41, § 103). 163. The Grand Chamber agrees with the following conclusions of the Chamber on this point (see paragraphs 19 0 - 96 of the Chamber judgment): “ ... The Court reiterates that it must be mindful of the Convention's special character as a human rights treaty and that the Convention cannot be interpreted in a vacuum. It should so far as possible be interpreted in harmony with other rules of public international law of which it forms part (see, mutatis mutandis, Al-Adsani v. the United Kingdom [GC], no. 35763/97, § 55, ECHR 2001-XI, and Loizidou v. Turkey, judgment of 18 December 1996, Reports 1996-VI, p. 2231, § 43). It must, however, confine its primary attention to the issues of interpretation and application of the provisions of the Convention that arise in the present case. ... It is recalled that the Court accepted in Soering that an established practice within the member States could give rise to an amendment of the Convention. In that case the Court accepted that subsequent practice in national penal policy, in the form of a generalised abolition of capital punishment, could be taken as establishing the agreement of the Contracting States to abrogate the exception provided for under Article 2 § 1 and hence remove a textual limit on the scope for evolutive interpretation of Article 3 ( ibid., pp. 40-41, § 103). It was found, however, that Protocol No. 6 showed that the intention of the States was to adopt the normal method of amendment of the text in order to introduce a new obligation to abolish capital punishment in time of peace and to do so by an optional instrument allowing each State to choose the moment when to undertake such an engagement. The Court accordingly concluded that Article 3 could not be interpreted as generally prohibiting the death penalty (ibid., pp. 40-41, §§ 103-04). ... The applicant takes issue with the Court's approach in Soering. His principal submission was that the reasoning is flawed since Protocol No. 6 represents merely one yardstick by which the practice of the States may be measured and that the evidence shows that all member States of the Council of Europe have, either de facto or de jure, effected total abolition of the death penalty for all crimes and in all circumstances. He contended that as a matter of legal theory there was no reason why the States should not be capable of abolishing the death penalty both by abrogating the right to rely on the second sentence of Article 2 § 1 through their practice and by formal recognition of that process in the ratification of Protocol No. 6. ... The Court reiterates that the Convention is a living instrument which must be interpreted in the light of present-day conditions and that the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies (see Selmouni v. France [GC], no. 25803/94, § 101, ECHR 1999-V). ... It reiterates that in assessing whether a given treatment or punishment is to be regarded as inhuman or degrading for the purposes of Article 3 it cannot but be influenced by the developments and commonly accepted standards in the penal policy of the member States of the Council of Europe in this field (see Soering, cited above, p. 40, § 102). Moreover, the concepts of inhuman and degrading treatment and punishment have evolved considerably since the Convention came into force in 195 3 and indeed since the Court's judgment in Soering in 1989. ... Equally the Court observes that the legal position as regards the death penalty has undergone a considerable evolution since Soering was decided. The de facto abolition noted in that case in respect of twenty-two Contracting States in 1989 has developed into a de jure abolition in forty-three of the forty-four Contracting States and a moratorium in the remaining State that has not yet abolished the penalty, namely Russia. This almost complete abandonment of the death penalty in times of peace in Europe is reflected in the fact that all the Contracting States have signed Protocol No. 6 and forty-one States have ratified it, that is to say, all except Turkey, Armenia and Russia [ [1] ]. It is further reflected in the policy of the Council of Europe, which requires that new member States undertake to abolish capital punishment as a condition of their admission into the organisation. As a result of these developments the territories encompassed by the member States of the Council of Europe have become a zone free of capital punishment. ... Such a marked development could now be taken as signalling the agreement of the Contracting States to abrogate, or at the very least to modify, the second sentence of Article 2 § 1, particularly when regard is had to the fact that all Contracting States have now signed Protocol No. 6 and that it has been ratified by forty-one States. It may be questioned whether it is necessary to await ratification of Protocol No. 6 by the three remaining States before concluding that the death penalty exception in Article 2 § 1 has been significantly modified. Against such a consistent background, it can be said that capital punishment in peacetime has come to be regarded as an unacceptable ... form of punishment that is no longer permissible under Article 2.” 164. The Court notes that, by opening for signature Protocol No. 13 concerning the abolition of the death penalty in all circumstances, the Contracting States have chosen the traditional method of amendment of the text of the Convention in pursuit of their policy of abolition. At the date of this judgment, three member States have not signed this Protocol and sixteen have yet to ratify it. However, this final step towards complete abolition of the death penalty – that is to say both in times of peace and in times of war – can be seen as confirmation of the abolitionist trend in the practice of the Contracting States. It does not necessarily run counter to the view that Article 2 has been amended in so far as it permits the death penalty in times of peace. 165. For the time being, the fact that there is still a large number of States who have yet to sign or ratify Protocol No. 13 may prevent the Court from finding that it is the established practice of the Contracting States to regard the implementation of the death penalty as inhuman and degrading treatment contrary to Article 3 of the Convention, since no derogation may be made from that provision, even in times of war. However, the Grand Chamber agrees with the Chamber that it is not necessary for the Court to reach any firm conclusion on these points since, for the following reasons, it would be contrary to the Convention, even if Article 2 were to be construed as still permitting the death penalty, to implement a death sentence following an unfair trial. (b) Unfair proceedings and the death penalty (i) Under Article 2 166. As regards the reference in Article 2 of the Convention to “the execution of a sentence of a court”, the Grand Chamber agrees with the Chamber's reasoning (see paragraphs 201- 04 of the Chamber judgment): “ ... Since the right to life in Article 2 of the Convention ranks as one of the most fundamental provisions of the Convention – one from which there can be no derogation in peacetime under Article 15 – and enshrines one of the basic values of the democratic societies making up the Council of Europe, its provisions must be strictly construed (see, mutatis mutandis, McCann and Others v. the United Kingdom, judgment of 27 September 1995, Series A no. 324, pp. 45-46, § 147), a fortiori the second sentence of Article 2 § 1. ... Even if the death penalty were still permissible under Article 2, the Court considers that an arbitrary deprivation of life pursuant to capital punishment is prohibited. This flows from the requirement that'[e] veryone's right to life shall be protected by law'. An arbitrary act cannot be lawful under the Convention ( see Bozano, cited above, p. 23, § 54, and pp. 25-26, § 59). ... It also follows from the requirement in Article 2 § 1 that the deprivation of life be pursuant to the'execution of a sentence of a court', that the'court'which imposes the penalty be an independent and impartial tribunal within the meaning of the Court's case-law ( see Incal, cited above; Çıraklar, cited above; Findlay v. the United Kingdom, judgment of 25 February 1997, Reports 1997-I; and Hauschildt v. Denmark, judgment of 24 May 1989, Series A no. 154), and that the most rigorous standards of fairness be observed in the criminal proceedings both at first instance and on appeal. Since the execution of the death penalty is irreversible, it can only be through the application of such standards that an arbitrary and unlawful taking of life can be avoided (see, in this connection, Article 5 of ECOSOC Resolution 1984/50 and the decisions of the United Nations Human Rights Committee ...; also Advisory Opinion OC-16/99 of 1 October 1999 of the Inter-American Court of Human Rights on'The right to information on consular assistance in the framework of the guarantee of due process of law', §§ 135 ‑ 36, and Hilaire, Constantine and Benjamin et al. v. Trinidad and Tobago, § 148 ...). Lastly, the requirement in Article 2 § 1 that the penalty be'provided by law'means not only that there must exist a basis for the penalty in domestic law but that the requirement of the quality of the law be fully respected, namely that the legal basis be'accessible'and'foreseeable'as those terms are understood in the case-law of the Court (see Amann v. Switzerland [GC], no. 27798/95, § 56, ECHR 2000-II, and Rotaru v. Romania [GC], no. 28341/95, § 52, ECHR 2000-V). ... It follows from the above construction of Article 2 that the implementation of the death penalty in respect of a person who has not had a fair trial would not be permissible.” (ii) Under Article 3 167. The above conclusion concerning the interpretation of Article 2 where there has been an unfair trial must inform the opinion of the Court when it considers under Article 3 the question of the imposition of the death penalty in such circumstances. 168. As the Court has previously noted in connection with Article 3, the manner in which the death penalty is imposed or executed, the personal circumstances of the condemned person and a disproportionality to the gravity of the crime committed, as well as the conditions of detention awaiting execution, are examples of factors capable of bringing the treatment or punishment received by the condemned person within the proscription under Article 3 (see Soering, cited above, p. 41, § 104). 169. In the Court's view, to impose a death sentence on a person after an unfair trial is to subject that person wrongfully to the fear that he will be executed. The fear and uncertainty as to the future generated by a sentence of death, in circumstances where there exists a real possibility that the sentence will be enforced, must give rise to a significant degree of anguish. Such anguish cannot be dissociated from the unfairness of the proceedings underlying the sentence which, given that human life is at stake, becomes unlawful under the Convention. (iii) Application of these principles to the present case 170. The Court notes that there has been a moratorium on the implementation of the death penalty in Turkey since 1984 and that in the present case the Government complied with the Court's interim measure indicated pursuant to Rule 39 to stay the execution. It is further noted that the applicant's file was not sent to Parliament for approval of the death sentence, as was then required by the Turkish Constitution. 171. The Court has also had regard, in this context, to Çınar ( cited above ) in which the Commission rejected a claim that Article 3 had been violated in the case of an applicant who had been sentenced to death in Turkey. In its reasoning, the Commission took into account the long-standing moratorium on the death penalty and concluded in the circumstances of that case that the risk of the penalty being implemented was illusory. 172. The Grand Chamber agrees with the Chamber that the special circumstances of the instant case prevent it from reaching the same conclusion as that reached in Çınar. The applicant's background as the founder and leader of the PKK, an organisation that had been engaged in a sustained campaign of violence causing many thousands of casualties, had made him Turkey's most wanted person. In view of the fact that the applicant had been convicted of the most serious crimes existing in the Turkish Criminal Code and of the general political controversy in Turkey – prior to the decision to abolish the death penalty – surrounding the question of whether he should be executed, it is not possible to rule out the possibility that the risk that the sentence would be implemented was a real one. In practical terms, the risk remained for more than three years of the applicant's detention in İmralı, from the date of the Court of Cassation's judgment of 25 November 1999 affirming the applicant's conviction until the Ankara National Security Court's judgment of 3 October 2002 commuting the death penalty to which the applicant had been sentenced to imprisonment. 173. As to the nature of the applicant's trial, the Court refers to its conclusions on the applicant's complaints under Article 6 of the Convention. It has found that the applicant was not tried by an independent and impartial tribunal within the meaning of Article 6 § 1 and that there has been a breach of the rights of the defence under Article 6 § 1 taken in conjunction with Article 6 § 3 (b) and (c), as the applicant had no access to a lawyer while in police custody and was unable to communicate with his lawyers out of the hearing of officials, restrictions had been imposed on the number and length of his lawyers'visits to him, he was unable to consult the case file until an advanced stage of the proceedings, and his lawyers did not have sufficient time to consult the file properly. 174. The death penalty has thus been imposed on the applicant following an unfair procedure which cannot be considered to conform to the strict standards of fairness required in cases involving a capital sentence. Moreover, he had to suffer the consequences of the imposition of that sentence for nearly three years. 175. Consequently, the Court concludes that the imposition of the death sentence on the applicant following an unfair trial by a court whose independence and impartiality were open to doubt amounted to inhuman treatment in violation of Article 3 of the Convention. IV. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION: CONDITIONS OF DETENTION 176. The applicant further complained that the conditions in which he had been transferred from Kenya to Turkey and detained on the island of İmralı amounted to 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.” A. Conditions in which the applicant was transferred from Kenya to Turkey 1. The applicant's submissions 177. The applicant said that he had been “abducted” in Kenya by Turkish officials and that his abduction necessarily constituted a violation of his right to respect for his physical integrity. He added that the circumstances in which the arrest had been effected also amounted to degrading and inhuman treatment. In his submission, the fact that he had been abducted for political reasons was in itself capable of constituting a breach of Article 3. 2. The Government's submissions 178. The Government asked the Grand Chamber to uphold the Chamber's finding that the conditions in which the applicant was transferred from Kenya to Turkey did not infringe Article 3. 3. The Court's assessment (a) General principles 179. Article 3 of the Convention enshrines one of the fundamental values of democratic societies (see Soering, cited above, pp. 34 -35, § 88). The Court is well aware of the immense difficulties faced by States in modern times in protecting their populations from terrorist violence. However, even in these circumstances, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the victim's conduct. Article 3 makes no provision for exceptions and no derogation from it is permissible even under Article 15 of the Convention in time of war or other national emergency ( see Chahal v. the United Kingdom, judgment of 15 November 1996, Reports 1996-V, p. 1855, § 79). 180. Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see, for example, Ireland v. the United Kingdom, judgment of 18 January 1978, Series A no. 25, p. 65, § 162). 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” but adds that such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. In this context, the conduct of the parties when evidence is being obtained has to be taken into account (ibid., pp. 64 ‑ 65, § 161). 181. Treatment will be considered to be “inhuman” within the meaning of Article 3 where, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical or mental suffering (see, among other authorities, Kudła v. Poland [GC], no. 30210/96, § 92, ECHR 2000-XI). Furthermore, in considering whether a punishment or treatment is “degrading” within the meaning of Article 3, the Court will have regard to whether its object is to humiliate and debase the person concerned and whether, as far as the consequences are concerned, it adversely affected his or her personality in a manner incompatible with Article 3 (see Albert and Le Compte v. Belgium, judgment of 10 February 1983, Series A no. 58, p. 13, § 22). In order for an arrest or detention in connection with court proceedings to be degrading within the meaning of Article 3, the humiliation or debasement to which it gives rise must be of a special level and in any event different from the usual degree of humiliation inherent in arrest or detention (see, mutatis mutandis, Raninen v. Finland, judgment of 16 December 1997, Reports 1997-VIII, pp. 2821-22, § 55). 182. Handcuffing, one of the forms of treatment complained of in the present case, does not normally give rise to an issue under Article 3 of the Convention where it has been imposed in connection with lawful arrest or detention and does not entail the use of force, or public exposure, exceeding what is reasonably considered necessary in the circumstances. In this regard, it is of importance for instance whether there is reason to believe that the person concerned would resist arrest or try to abscond or cause injury or damage. In addition, the public nature of the treatment or the mere fact that the victim is humiliated in his own eyes may be a relevant consideration ( see Tyrer v. the United Kingdom, judgment of 25 April 1978, Series A no. 26, p. 16, § 32, and Raninen, cited above, p. 2822, § 56). 183. Artificially depriving prisoners of their sight by blindfolding them for lengthy periods spread over several days may, when combined with other ill-treatment, subject them to strong psychological and physical pressure. The Court must examine the effect of such treatment in the special circumstances of each case (see, mutatis mutandis, Salman v. Turkey [GC], no. 21986/ 93, § 132, ECHR 2000-VII). (b) Application of the above principles to the instant case 184. The Grand Chamber has examined the Chamber's findings and, in the absence of any additional arguments by the parties in support of their views, adopts them: “ ... the applicant was forced to wear handcuffs from the moment of his arrest by the Turkish security forces on the aircraft until his arrival at the prison on the island of İmralı. [The Court] also notes that he was suspected of being the leader of an armed separatist movement that was engaged in an armed struggle against the Turkish security forces and that he was considered dangerous. The Court accepts the Government's submission that the sole purpose of requiring the applicant to wear handcuffs as one of the security measures taken during the arrest phase was to prevent him from attempting to abscond or causing injury or damage to himself or others. ... As regards the blindfolding of the applicant during his journey from Kenya to Turkey, the Court observes that that was a measure taken by the members of the security forces in order to avoid being recognised by the applicant. They also considered that it was a means of preventing the applicant from attempting to escape or injuring himself or others. The applicant was not questioned by the security forces when he was blindfolded. The Court accepts the Government's explanation that the purpose of that precaution was not to humiliate or debase the applicant but to ensure that the transfer proceeded smoothly and it acknowledges that, in view of the applicant's character and the reaction to his arrest, considerable care and proper precautions were necessary if the operation was to be a success. ... The Court's view on this point is not altered by the fact that the applicant was photographed wearing a blindfold in the aircraft that took him back to Turkey. It points out that there had been fears for the applicant's life following his arrest and the photographs, which the Government say were intended for use by the police, served to reassure those concerned about his welfare. The Court notes, lastly, that the applicant was not wearing a blindfold when he was photographed in Turkey shortly before his transfer to the prison. ... The applicant said that he was under sedation when he was transferred from Kenya to Turkey, the drugs having been administered to him either at the Greek embassy in Nairobi before he boarded the plane or in the aircraft that had taken him to Turkey. The Government rejected the latter suggestion. The Court notes that there is no evidence in the case file to substantiate the allegation that the Turkish security forces administered drugs to the applicant. Since the applicant also seems to think that the most probable explanation is that he was drugged before he was put on board the flight from Nairobi to Turkey, the Court considers that this allegation against the Turkish officials has not been established. ... Furthermore, at the hearing on 31 May 1999 the applicant stated in the National Security Court :'Since my arrest I have not up to now been subjected to torture, ill-treatment or verbal abuse .'While the applicant's vulnerability at the time as a result of his being on trial for a capital offence means that that statement does not by itself conclusively establish the facts, it does support the Government's submissions. ... Lastly, since the applicant's arrest was lawful under Turkish law, the Court cannot accept the applicant's submission that his'abduction'abroad on account of his political opinions constituted inhuman or degrading treatment within the meaning of Article 3. ... That being so, the Court considers that it has not been established'beyond all reasonable doubt'that the applicant's arrest and the conditions in which he was transferred from Kenya to Turkey exceeded the usual degree of humiliation that is inherent in every arrest and detention or attained the minimum level of severity required for Article 3 of the Convention to apply.” 185. Consequently, there has been no violation of Article 3 on that account. B. Conditions of detention on the island of İmralı 1. The applicant's submissions 186. The applicant disagreed with the Chamber's finding that the conditions of his detention on the island of İmralı did not infringe Article 3. He submitted that the conditions were inhuman within the meaning of Article 3 or at the very least entailed disproportionate interference with the exercise of his rights under Article 8. He had been the sole inmate in the prison for more than five years and his social isolation was made worse by the ban on his having a television set or communicating by telephone, and by the practical obstacle inadequate sea transport facilities posed to visits by his lawyers and members of his family. The applicant pointed out that the CPT's recommendations for reduced social isolation had not been followed by the prison authorities. His prison conditions were, in his submission, harsher than those of other prisoners. The applicant said that his health had deteriorated as a result of the particular weather conditions that prevailed on the island of İmralı and that the Government's insistence on keeping him in that prison had more to do with their repressive attitude than security. There was no justification for the Government's refusal to transfer him to an ordinary prison or to allow visitors to travel to the island by helicopter. 2. The Government's submissions 187. The Government invited the Grand Chamber to endorse the Chamber's finding that the conditions of the applicant's detention on the island of İmralı did not infringe Article 3. They pointed out that the applicant had at no stage been held in cellular confinement. He received visits from his lawyers and members of his family every week. The adverse maritime weather conditions in the winter of 200 2- 03 that had been responsible for the cancellation of some visits were highly unusual. 188. The Government produced photographs which in their submission showed that the applicant's cell was suitably furnished. They pointed out that the applicant had been tried and convicted of being the head of a major armed separatist organisation that continued to regard him as its leader. All the restrictions imposed on his telephone communications were intended to prevent the applicant from continuing to run the organisation from his prison cell, and that was a national security issue. However, he was able to read books and daily newspapers of his choice and to listen to the radio. No restrictions had been placed on his written communications with the outside world. As to the applicant's health, he was examined frequently by doctors and psychologists, whose daily medical reports were sent to the Court on a regular basis. 189. The Government asserted that the applicant was treated in strict conformity with European standards governing conditions of detention. In the cases in which the Court had found a violation of Article 3, the conditions of detention were far worse than in Mr Öcalan's case (for instance, Poltoratskiy v. Ukraine, no. 38812/97, ECHR 2003- V, and Kuznetsov v. Ukraine, no. 39042/97, 29 April 2003 ). 3. The Court's assessment 190. The Court must first determine the period of the applicant's detention to be taken into consideration when examining his complaints under Article 3. It points out that the “case” referred to the Grand Chamber embraces in principle all aspects of the application previously examined by the Chamber in its judgment, the scope of its jurisdiction in the “case” being limited only by the Chamber's decision on admissibility (see, mutatis mutandis, K. and T. v. Finland [GC], no. 25702/94, §§ 139- 41, ECHR 2001-VII; Kingsley v. the United Kingdom [GC], no. 35605/97, § 34, ECHR 2002-IV; Göç v. Turkey [GC], no. 36590/97, §§ 35-37, ECHR 2002-V; and Refah Partisi (the Welfare Party) and Others v. Turkey [GC], nos. 41340/98, 41342/98, 41343/98 and 41344/98, § 56, ECHR 2003-II). More specifically, within the compass delimited by the decision on the admissibility of the application, the Court may deal with any issue of fact or law that arises during the proceedings before it (see, among many other authorities, Guerra and Others v. Italy, judgment of 19 February 1998, Reports 1998-I, p. 223, § 44; Chahal, cited above, p. 1856, § 86; and Ahmed v. Austria, judgment of 17 December 1996, Reports 1996-VI, p. 2207, § 43). There is no justification for excluding from the scope of that general jurisdiction events that took place up to the date of the Grand Chamber's judgment, provided that they are directly related to the complaints declared admissible. Furthermore, in the instant case, the applicant has already made submissions in the proceedings before the Chamber outlining his arguments on the effects his prolonged social isolation while in custody were likely to have. The Court will therefore take into consideration the conditions of the applicant's detention between 16 February 1999 and the date this judgment is adopted. The fact that the applicant has in the interim lodged a new application concerning the latter part of his detention does not alter the position. 191. Complete sensory isolation coupled with total social isolation can destroy the personality and constitutes a form of inhuman treatment that cannot be justified by the requirements of security or any other reason. On the other hand, the prohibition of contact with other prisoners for security, disciplinary or protective reasons does not in itself amount to inhuman treatment or punishment (see, among other authorities, Messina v. Italy (no. 2) (dec.), no. 25498/94, ECHR 1999-V). 192. In the present case, it is true that the applicant's detention posed exceptional difficulties for the Turkish authorities. The applicant, as the leader of a large, armed separatist movement, is considered in Turkey to be the most dangerous terrorist in the country. Reactions to his arrest and differences of opinion that have come to light within his own movement show that his life is genuinely at risk. It is also a reasonable presumption that his supporters will seek to help him escape from prison. In those circumstances, it is understandable that the Turkish authorities should have found it necessary to take extraordinary security measures to detain the applicant. 193. The applicant's prison cell is indisputably furnished to a standard that is beyond reproach. From the photographs in its possession and the findings of the delegates of the CPT, who inspected the applicant's prison during their visit to Turkey from 2 to 14 September 2001, the Court notes that the cell the applicant occupies alone is large enough to accommodate a prisoner and furnished with a bed, table, armchair and bookshelves. It is also air-conditioned, has washing and toilet facilities and a window overlooking an inner courtyard. The applicant appears to be under medical supervision that is both strict and regular. The Court considers that these conditions do not give rise to any issue under Article 3 of the Convention. 194. Further, the Court considers that the applicant cannot be regarded as being kept in sensory isolation or cellular confinement. It is true that, as the sole inmate, his only contact is with prison staff. He has books, newspapers and a radio at his disposal. He does not have access to television programmes or a telephone. He does, however, communicate with the outside world by letter. He sees a doctor every day and his lawyers and members of his family once a week (his lawyers were allowed to see him twice a week during the trial). The difficulties in gaining access to İmralı Prison in adverse weather conditions appear to have been resolved, as the prison authorities were provided with a suitable craft at the end of 2004. 195. The Court notes the CPT's recommendations that the applicant's relative social isolation should not be allowed to continue for too long and that its effects should be attenuated by giving him access to a television and to telephone communications with his lawyers and close relatives. However, like the Chamber, the Grand Chamber is also mindful of the Government's concerns that the applicant may seek to take advantage of communications with the outside world to renew contact with members of the armed separatist movement of which he was leader. These concerns cannot be said to be unfounded. An added consideration is the Government's fear that it would be difficult to protect the applicant's life in an ordinary prison. 196. While concurring with the CPT's recommendations that the long ‑ term effects of the applicant's relative social isolation should be attenuated by giving him access to the same facilities as other high security prisoners in Turkey, such as television and telephone contact with his family, the Grand Chamber agrees with the Chamber that the general conditions in which he is being detained at İmralı Prison have not thus far reached the minimum level of severity required to constitute inhuman or degrading treatment within the meaning of Article 3 of the Convention. Consequently, there has been no violation of that provision on that account. V. ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION 197. The applicant complained that he had been hindered in the exercise of his right of individual application in that his lawyers in Amsterdam had not been permitted to contact him after his arrest and that the Government had delayed in replying to the Court's request for information. He alleged a violation of Article 34 of the Convention, which reads as follows: “The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.” 198. The Government asked the Court to dismiss those complaints. 199. The Court is called upon to decide whether the two matters raised by the applicant genuinely hindered him in the effective exercise of his right of application. 200. As regards his inability to communicate with his lawyers in Amsterdam following his arrest, the Court notes that a group of representatives composed of lawyers chosen by the applicant, including the lawyers in Amsterdam, subsequently applied to the Court and put forward all the applicant's allegations concerning the period in which he had had no contact with his lawyers. There is therefore nothing to indicate that the applicant was hindered in the exercise of his right of individual application to any significant degree. 201. As to the Government's delay in replying to the Chamber's second request for information, the Court reiterates that by virtue of Article 34 of the Convention Contracting States undertake to refrain from any act or omission that may hinder the effective exercise of an individual applicant's right of application. A failure by a Contracting State to comply with interim measures is to be regarded as preventing the Court from effectively examining the applicant's complaint and as hindering the effective exercise of his or her right and, accordingly, as a violation of Article 34 of the Convention ( see Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99, § 128, ECHR 2005-I ). However, though regrettable, the Government's failure to supply the information requested by the Court earlier did not, in the special circumstances of the case, prevent the applicant from setting out his complaints about the criminal proceedings that had been brought against him. Accordingly, the applicant has not been obstructed in the exercise of his right of individual application. 202. In conclusion, there has been no violation of Article 34 in fine of the Convention. VI. OTHER COMPLAINTS 203. Relying on the same facts, the applicant also alleged a violation of Articles 7, 8, 9, 10, 13, 14 and 18 of the Convention, taken individually or in conjunction with the aforementioned provisions of the Convention. 204. Repeating the arguments set out above with regard to the other complaints, the Government submitted that those complaints too were ill ‑ founded and had to be dismissed. 205. The applicant wished to pursue his complaints. 206. Having examined the complaints, which, incidentally, are not set out in any detail in the applicant's submissions, the Court notes that they have virtually the same factual basis as the complaints it has examined in previous sections of this judgment. Consequently, it considers that no separate examination of the complaints under Articles 7, 8, 9, 10, 13, 14 and 18 of the Convention, taken individually or in conjunction with Articles 2, 3, 5 and 6, is necessary. VII. ARTICLES 46 AND 41 OF THE CONVENTION A. Article 46 of the Convention 207. Article 46 of the Convention 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.” 208. In the event of the Court finding a violation of Article 6, the applicant requested a retrial by an independent and impartial court in which he would enjoy full defence rights. In the event of the Court finding a violation of Article 3 on account of the conditions of his detention, he requested a transfer to a prison on the mainland, and the facilitation of contact with other prisoners, members of his family and his lawyers. 209. While reaffirming their view that there had been no violation of the Convention provisions relied on by the applicant, the Government submitted, in the alternative, that a finding of a violation could constitute in itself sufficient just satisfaction for the applicant. 210. As to the specific measures requested by the applicant, 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 (see, among other authorities, Assanidze v. Georgia [GC], no. 71503/01, § 202, ECHR 2004-II; Scozzari and Giunta v. Italy [GC], nos. 39221/98 and 41963/98, § 249, ECHR 2000-VIII; and Brumărescu v. Romania (just satisfaction) [GC], no. 28342/95, § 20, ECHR 2001-I). 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 Broniowski v. Poland [GC], no. 31443/96, § 194, ECHR 2004-V). In other exceptional 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 only one such measure (see Assanidze, cited above, § 202). In the specific context of cases against Turkey concerning the independence and impartiality of the national security courts, Chambers of the Court have indicated in certain judgments that were delivered after the Chamber judgment in the present case that, in principle, the most appropriate form of redress would be for the applicant to be given a retrial without delay if he or she so requests (see, among other authorities, Gençel v. Turkey, no. 53431/99, § 27, 23 October 2003). It is also to be noted that a Chamber of the Court has adopted a similar stance in a case against Italy where the finding of a breach of the fairness guarantees contained in Article 6 was not related to the lack of independence or impartiality of the domestic courts (see Somogyi v. Italy, no. 67972/01, § 86, ECHR 2004-IV). The Grand Chamber endorses the general approach adopted in the above ‑ mentioned case-law. It considers that where an individual, as in the instant case, has been convicted by a court that did not meet the Convention requirements of independence and impartiality, a retrial or a reopening of the case, if requested, represents in principle an appropriate way of redressing the violation. However, the specific remedial measures, if any, required of a respondent State in order to discharge its obligations under Article 46 of the Convention must depend on the particular circumstances of the individual case and be determined in the light of the terms of the Court's judgment in that case, and with due regard to the above case-law of the Court. B. Article 41 of the Convention 211. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 1. Damage 212. The Court notes that the applicant has not put forward any claim in respect of pecuniary or non-pecuniary damage and concludes that any damage the applicant may have sustained has been sufficiently compensated for by its findings of a violation of Articles 3 (as regards the imposition of the death penalty following an unfair trial), 5 and 6 of the Convention. 2. Costs and expenses 213. During the proceedings before the Chamber, the applicant had claimed compensation of 1,123,933.96 euros (EUR) for the costs and expenses he had incurred for the seven lawyers and three trainee lawyers who had acted for him outside Turkey and the costs and expenses of six of his lawyers in Turkey. The Chamber awarded him EUR 100,000 under that head. The applicant claimed an additional EUR 75,559.32 in respect of the proceedings under Article 43 of the Convention. He explained that that sum was broken down into EUR 65,978.60 for the fees of his lawyers and their assistants and EUR 9,580.72 for sundry expenses, such as translation costs and travel expenses. 214. The Government submitted that those claims were manifestly unreasonable, in particular as regards the amount of the lawyers'fees. 215. 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 The Sunday Times v. the United Kingdom (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 ). 216. In the present case, the Court notes that it has upheld only some of the applicant's complaints under the Convention. It therefore notes that not all the time or all the meetings for which the applicant's main lawyers claimed remuneration were spent solely on the complaints in respect of which a violation has been found. 217. The Court considers that the applicant should only be reimbursed part of his costs incurred before the Court. Having regard to the circumstances of the case, the fee scales applicable in the United Kingdom and in Turkey and the complexity of certain issues raised by the application, and ruling on an equitable basis, it considers it reasonable to award the applicant EUR 120,000 in respect of the complaints put forward by all his legal representatives. That sum is to be paid into bank accounts nominated by his Turkish and United Kingdom representatives. 3. Default interest 218. 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 there had been a violation of Article 3 of the Convention, as the conditions of detention imposed on the applicant up to 17 November 2009 constituted inhuman treatment, but no violation of Article 3 as regards the subsequent period. It observed in particular as follows: “Article 3 of the Convention enshrines one of the fundamental values of democratic societies. Even in the most difficult circumstances, such as the fight against terrorism and organised crime, the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the conduct of the person concerned ... In the modern world, States face very real difficulties in protecting their populations from terrorist violence. However, unlike most of the substantive clauses of the Convention ..., 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 paragraphs 97-98 of the judgment). |
749 | Freedom of assembly and association (Article 11 of the Convention) | II. RELEVANT DOMESTIC LAW 11. The relevant provisions of Government Ordinance no. 26/2000 on associations and foundations read as follows: Article 1 “ ... (3 ) Political parties, trade unions and religious organisations are not covered by the present ordinance. ” Article 7 “(1) Any of the associates ... may apply for registration of the association in the Register of Associations and Foundations kept by the registry of the court where the association shall have its main office. (2) The following documents shall be attached to the application for registration : ( a) the memorandum of association; ( b) the articles of association; ... ” Article 8 “(1) An association gains legal personality from the moment of its registration in the Register of Associations and Foundations. ( 2 ) Within three days of the registration of the application and of the documents required under Article 7(2), the judge assigned by the president of the court shall examine their lawfulness and shall order the registration of the association by an interlocutory judgment .. .” Article 9 “(1) If the lawful requirements for registration have not been met, the judge shall, after the expiry of the time-limit set out in Article 8(2), summon in chambers the representative of the association and ask him in writing to resolve any irregularities ... ” Article 10 “ (1) If the irregularities have been resolved within the set time-limit, the judge ... shall order the registration of the association. (2) If the irregularities have not been resolved, or the representative of the association is absent without justification after being lawfully summoned, the judge shall reject the application for registration ... ” Article 11 “(1) The interlocutory judgments allowing or dismissing the request for registration are subject to appeal on points of law only ... ” Article 56 “ (1) The association shall be dissolved by a decision of a court of law at the request of an interested party if : ( a) the association ’ s goal or activity has become unlawful or is contrary to public order; ( b) it has achieved its goals by means that are unlawful or contrary to public order; ( c) the association has pursued a different goal from that for which it was founded; ( d) the association has become bankrupt; and ( e) the association has initiated activities requiring preliminary administrative authorisation without having such authorisation ... ” 12. The relevant provisions of Law no. 14/2003 on political parties read as follows: Article 2 “Through their activities political parties promote national values and interests, political pluralism, shape public opinion, take part in elections and in establishing public authorities, and lawfully encourage the participation of citizens in elections. ” THE LAW I. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION 13. The applicant complained under Article 11 of the Convention of a violation of his right to freedom of association, arguing that the rejection by the domestic courts of the application for registration of the association founded by him and four other associates had not been necessary in a democratic society and that the courts had failed to provide relevant and sufficient reasons for that restriction. The relevant part of the aforementioned Article reads as follows: “ 1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. 2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.” A. Admissibility 14. 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 ’ submission (a) The applicant 15. The applicant contested the Government ’ s claim that the association had been intended to carry out activities that could have been considered to fall within the field of activities of a political party and that he and his co ‑ founders had chosen that form of organisation in order to avoid the special legal provisions regulating political activity. The applicant submitted that he had wished to found an association and not a political party. 16. The applicant contended that the domestic courts had interfered with his right to freedom of association by refusing to register the EcoPolis association, but agreed that the interference had been prescribed by law, namely the relevant Articles of Government Ordinance no. 26/2000. 17. The applicant submitted that although the first-instance court had not identified any irregularities with regard to the association ’ s application for registration and had allowed it, the last-instance court had, as in similar cases that had been brought before the Court against Romania, failed to grant the association any time to modify the provisions of its articles of association which had been considered contrary to Government Ordinance no. 26/2000. The last-instance court had allowed the appeal on points of law by the Public Prosecutor ’ s Office after the initial hearing, in the absence of the association ’ s legal representative and without taking any of the other steps required by Article 9 of Government Ordinance 26/2000. 18. The applicant contended that Article 9 of the Government Ordinance no. 26/2000 did not state clearly whether it applied to appeal proceedings. He further argued that in accordance with that provision he should have been informed in writing of the need to rectify the irregularities in the articles of association pending a new hearing of the case, even though the aforementioned provisions might have been insufficiently clear or compatible with the rule of law and the last-instance court might have considered that they applied only to first-instance court proceedings. He argued that in the case of Argeş College of Legal Advisers v. Romania ( no. 2162/05, § 40, 8 March 2011 ) the Court had already considered that the main purpose of the option provided by Article 9 of Government Ordinance no. 26/2000 had been to give an association applying for registration the opportunity to comply with all the necessary formalities during the registration proceedings, should there be any irregularities in the initial application. 19. The applicant submitted that the last-instance court had rejected the application for registration by relying only on the provisions of the association ’ s memorandum and its articles of association. He considered, however, that the finding that some provisions of the memorandum and articles of association could have amounted to activities specific to political parties had been mere speculation and did not amount to compelling reasons that could have justified the interference with his freedom of association. In the applicant ’ s opinion, the goal of the association had certainly not been one that could have been attributed exclusively to political parties. 20. The applicant argued that the Government ’ s claim that the dismissal of the registration under Government Ordinance no. 26/2000 had not prevented him from making an application for registration of a political party was absurd, given that he and his co-founders had intended to establish an association and that the application for registration had contained the legal grounds for the application. Moreover, if they had considered it necessary, the domestic courts could have asked the interested parties to debate the necessity of changing the legal classification of the application. 21. The applicant also contended that the fact that the domestic courts had considered that the principles promoted by the association had been very general and had given rise to the possibility of their being classified as belonging to the domain of political parties could not have amounted to sufficient and compelling evidence of a threat to national security or to public safety and order. There had also been no similarity between the activities listed by the founding members of the association in the organisation ’ s articles of association and the activities carried out by political parties as defined by Law no. 14/2003 on political parties. 22. The applicant contested the Government ’ s submission that the measure in question had purported to prevent a possible abuse by the association in acting as a political party and had been aimed at upholding the rules regulating political parties. In so far as the association had not existed before and neither it nor its founding members had engaged in activities of a political nature, the refusal of the registration appeared disproportionate to the aim pursued and had been unnecessary in a democratic society. That was all the more so since Government Ordinance no. 26/2000 allowed the State authorities to dissolve any association which had pursued goals that were different from the ones for which it had been founded. (b) The Government 23. The Government submitted that the applicable legal provisions had allowed the domestic courts to refuse the registration of associations in certain circumstances. Those rules had been accessible, foreseeable in respect of their effects and compatible with the rule of law. The domestic courts had made their own assessment of the application for registration and had rejected it because they had considered that the goal of the association and the means to be employed to achieve them had been characteristic of political parties, which could not have been registered under the legal framework relied on by the applicant. 24. The Government contended that the interference had pursued a legitimate goal, namely the protection of the domestic legal order, and had aimed to prevent a possible abuse of the law by the association acting as a political party. 25. The Government acknowledged that the applicant ’ s intention could not have been confirmed by reference to the actual conduct of the association, as it had never been registered. They also acknowledged that the goal of founding a political party had not been explicitly stated in the memorandum of association and that any unstated intention that the applicant might have had as regards political activity would have depended on a combination of future events. However, they contended that the memorandum of association had afforded the organisation broad-ranging means with which to accomplish its goals without having had to expressly mention a desire to register as a political party. Thus, behind its innocuous appearance as an ordinary association, the organisation had de facto thought of itself as being a political party. Consequently, the domestic courts had refused the association ’ s registration and had based their reasoning on the realities behind the appearance. 26. The Government also argued that by reviewing the compliance of the application for registration with the relevant domestic rules regulating that field, the domestic courts had simply exercised their power to review the lawfulness of the application and to reject any ambiguous or misleading clause that could have potentially led to an abuse of the law. They also contended that the dismissal of the association ’ s application for registration under Government Ordinance no. 26/2000 had not deprived the organisation of the possibility of submitting another application for registration as a political party under Law no. 14/2003 on political parties. The fact that the domestic courts had decided that the latter legislation had been applicable in respect of the association ’ s application for registration could not have been considered an infringement of the applicant ’ s right of freedom of association, as the applicant had not been free to choose the domestic rules applicable to his association. 27. The Government submitted that the domestic courts had not imposed a general ban on the registration of the association. Therefore, the applicant had the option of either modifying the association ’ s articles or of applying for its registration as a political party. 28. The Government argued that in accordance with the Court ’ s case ‑ law the State ’ s margin of appreciation could include a right to interfere with an association ’ s internal organisation and functioning in the event of non-compliance with reasonable legal formalities applying to its establishment, functioning or internal organisational structure. Consequently, they contended that the domestic courts ’ refusal to register the association had met a pressing social need and had been proportionate. 29. The Government argued that, as in the case of Gorzelik and Others v. Poland ( [GC], no. 44158/98, ECHR 2004-I ), the authorities had not prevented the applicant from forming an association to express and promote the distinctive features of a union, but from creating a legal entity which through registration under Government Ordinance no. 26 /2000, given its stated goal, would inevitably have become entitled to special status under the law applicable to political parties. 2. The Court ’ s assessment (a) General principles 30. The Court reiterates that in matters of freedom of association, the right enshrined in Article 11 includes the right to form an association in order to act collectively in a field of mutual interest (see The Argeş College of Legal Advisers, cited above, § 31, and Gorzelik and Others, cited above, § § 88-93). 31. The Court further reiterates that the way in which national legislation enshrines this freedom and its practical application by the authorities reveal the state of democracy in the country concerned. The Court has repeatedly referred to the direct relationship that exists between democracy, pluralism and freedom of association, and it has established the principle that only convincing and compelling reasons can justify restrictions on freedom of association. All such restrictions are subject to rigorous supervision by the Court (see, among many other authorities, Association of Victims of Romanian Judges and Others v. Romania, no. 47732/06, § 25, 14 January 2014, and Refah Partisi (the Welfare Party) and Others v. Turkey [GC], nos. 41340/98, 4 1342/98, 41343/98 and 41344/98, §§ 86 ‑ 89, ECHR 2003 ‑ II ). Consequently, 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 Eğitim ve Bilim Emekçileri Sendikası v. Turkey, no. 20641/05, § 49, ECHR 2012). 32. In its scrutiny, the Court ’ s task is not to substitute its own view for that of the relevant national authorities but rather to review under Article 11 the decisions they delivered in the exercise of their discretion; it must therefore look at the interference complained of in the light of the case as a whole and determine whether it was “proportionate to the legitimate aim pursued” and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient”. In so doing, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 11 and, moreover, that they based their decisions on an acceptable assessment of the relevant facts (see The Argeş College of Legal Advisers, cited above, § 33, and Partidul Comuniștilor (Nepecerişti) and Ungureanu v. Romania, no. 46626/99, § 49, ECHR 2005 ‑ I ). (b) The application of those principles in the instant case (i) Existence of interference 33. In so far as the Government ’ s submissions may be understood to amount to a claim that the refusal of the domestic courts to register the EcoPolis association had not interfered with the applicant ’ s right to freedom of association, the Court observes that it has already established that such a refusal by the authorities amounted to an interference with the aforementioned right of the association or of its founding members (see Association of Victims of Romanian Judges and Others, cited above, § 20; The Argeş College of Legal Advisers, cited above, § 3 4; and Gorzelik and Others, cited above, § § 88-93). Consequently, notwithstanding the Government ’ s submission, the Court has no reason to hold otherwise. ( ii) Justification of the interference 34. The Court is satisfied that the interference in question was prescribed by law, namely by Government Ordinance no. 26/2000, and that it pursued a legitimate aim, namely the protection of public order. 35. It must therefore proceed to examine whether the interference at issue, namely the refusal by the domestic courts to register the association, met a “pressing social need” and was “proportionate to the legitimate aims pursued”. 36. The Court notes in this connection that, in so far as the association in question had not been active before applying for registration, the national courts based their refusal of the application for registration solely on an assessment of whether the memorandum and articles of association submitted to them complied with the provisions of Government Ordinance no. 26/2000. The Court will therefore rely on these documents as the basis for assessing whether the interference in question was necessary (see, among other authorities, Refah Partisi (the Welfare Party) and Others, cited above, § 116, and Association of Victims of Romanian Judges and Others, cited above, § 28 ). 37. The Court observes from the reasons put forward by the Bucharest County Court that the main problem with the registration of the association was the provisions of its memorandum and articles of association, which used general concepts and led the last-instance court to believe that the organisation wanted to carry on activities that could have been perceived as belonging to the field of activity of political parties, which by their nature could not have been registered under the provisions of Government Ordinance no. 2 6/2000. In that decision, the County Court had regard to the association ’ s goal and to part of Article 7 (defining the objectives of the association ) of its articles of association. 38. The Court further notes that Articles 9 and 10 of Government Ordinance no. 26/2000 provided that the judge reviewing an application for registration could allow some time for the person making the application to remedy any irregularities affecting the registration after that person had been summoned and been asked in writing to do so. This option was explicitly provided by law for first- instance court proceedings, although no express provisions had been made in respect of appeal proceedings. 39. The Court reiterates that the main purpose of the aforementioned legal provision was to allow an association making an application for registration to comply with all the necessary formalities during the registration proceedings, should there be any irregularities in the initial application (see The Argeş College of Legal Advisers, cited above, § 4 0 ). 40. In the applicant ’ s case, the first-instance court did not identify any irregularity in respect of the association ’ s application for registration and therefore allowed it. Following the appeal on points of law lodged by the Public Prosecutor ’ s Office, the last-instance court identified some irregularities in the application. However, it does not appear from the evidence available in the case file that the applicant was either summoned in chambers, or asked in writing to remedy those irregularities. Given that the national law aimed to give associations a chance to remedy any irregularities during the registration process, the decision of the last-instance court to dismiss the application for registration without allowing the applicant any time or giving him an opportunity to remedy the deficiencies found by the court appears to contradict the purpose and spirit of the law (see, mutatis mutandis, The Argeş College of Legal Advisers, cited above, § 40). 41. The Court notes that the last-instance court ’ s statements seem to have been based on mere suspicions regarding the true intentions of the association ’ s founders and the activities it might have engaged in once it had begun to function (see, mutatis mutandis, Sidiropoulos and Others v. Greece, 10 July 1998, § 46, Reports of Judgments and Decisions 1998 ‑ IV, and Bozgan v. Romania, no. 35097/02, § 23, 11 October 2007). The provisions of the association ’ s founding instruments gave no indication that its goal was the setting up of a political party or that it had intended to involve itself in political activities (contrast Bota v. Romania (dec.), no. 24057/03, 12 October 2004). Also, there is no evidence in the case file that the association ’ s founding members had intended to use their association as a de facto political party. Their organisation, had it been founded as an association, would have not been able to take part in the elections and in establishing public authorities, i.e. in the activities, mentioned in Article 2 of Law no. 14/2003 (see paragraph 12 above). Therefore, the Court sees no need to speculate whether the said Law defines any field of activity as an exclusive domain of political parties, which an association is not allowed to enter, and whether the goal and objectives of the applicant ’ s association as described by its memorandum and articles of association could have had any attributes that entered that hypothetical domain. 42. As regards the Government ’ s arguments that the decision of the last ‑ instance court had not deprived the organisation of the possibility of making another application for registration as a political party under Law no. 14/2003 on political parties, the Court notes that the applicant expressly stated in his submissions before it that he and his co-founders had acted with the sole purpose of registering an association and not a political party. Likewise, in so far as the Government suggested that the association could have made a second application for registration after amending its articles of association, the Court observes that it has already established that imposing such a duty on the applicant would have amounted to a disproportionate burden given that the domestic legislation had allowed for the possibility of having the potential irregularities remedied during the course of the first set of registration proceedings (see Bozgan, cited above, § 29 ). 43. Furthermore, the Court also notes that domestic law provides for the possibility of dissolving an association should it be demonstrated that the association ’ s goal or activity has become unlawful or contrary to public order or that the association has achieved its goals by means that were unlawful or contrary to public order (see The Argeş College of Legal Advisers, cited above, § 42 ). 44. In the light of the foregoing considerations, the Court is not convinced that the factual circumstances of the present case are similar to those in the case of Gorzelik and Others ( cited above ), where the applicants had refused to amend the provisions of the articles of association without any perceptible practical purpose other than preparing the ground for enabling their association and its members to benefit from the electoral privileges afforded by Polish election laws even after the authorities had notified them during the registration process that the registration of their association would not be possible in the absence of such amendments. Therefore, the Court cannot accept the Government ’ s submission that the conclusion reached by the Court in that case also applies to the present one. 45. Taking into account all of the above, the Court considers that the reasons invoked by the authorities for refusing registration of the EcoPolis association were not guided by any “pressing social need”, nor were they convincing and compelling. Consequently, a measure as radical as the refusal to register the association, taken even before the association had started operating, appears disproportionate to the aim pursued (see Association of Victims of Romanian Judges and Others, cited above, § 34 ). 46. That being so, the interference cannot be deemed necessary in a democratic society. 47. There has accordingly been a violation of Article 11 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 48. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 49. The applicant claimed 5,000 euros (EUR) in respect of non ‑ pecuniary damage. He argued that the decision of the last-instance court had prevented him from founding a non-profit, non-governmental organisation and from pursuing his calling as an environmental activist by developing new projects in that field. The decision of the last-instance court had caused him feelings of uncertainty about the possibility of carrying out activities benefiting the community and had infringed his right to dignity and honour in so far as his desire to help the community had been met by the authorities ’ suspicion that he had intended to breach the law. The authorities had also continued to disregard his right to freedom of association, in spite of the Court ’ s repeated findings of a violation of Article 11 in Romanian cases. The clemency showed by the Court in previous cases, when it had considered that the mere finding of a violation amounted to sufficient just satisfaction for an applicant, had failed to improve the authorities ’ behaviour. 50. The Government contended that, in line with the Court ’ s case-law, the finding of a violation provided sufficient just satisfaction for the applicant. In that connection, they submitted that if the Court found a violation of the Convention provisions in the present case, the relevant civil procedure rules allowed the applicant to lodge an extraordinary appeal to review proceedings ( revizuire ) in order to ask the domestic courts to restore the situation that had existed before the alleged breach of the Convention. 51. The Court considers that the applicant must have suffered non ‑ pecuniary damage as a result of the infringement of his right guaranteed by Article 11 of the Convention, which cannot be made good by the mere finding of a violation. Consequently, making an assessment on an equitable basis, the Court awards the applicant EUR 4, 50 0 in respect of non ‑ pecuniary damage, plus any tax that may be chargeable. B. Costs and expenses 52. The applicant also claimed EUR 1,847 for the costs and expenses incurred before the Court to be paid directly to his representative. These included EUR 1,697 in lawyer ’ s fees (charged at between EUR 5 and EUR 120 per hour depending on the complexity of the tasks performed by the lawyer) and EUR 150 for secretarial and mailing expenses. The applicant submitted an agreement between him and his counsel and a breakdown of the number of hours worked by the lawyer on the case. 53. The Government submitted that the amount of costs and expenses claimed by the applicant was speculative and excessive. They argued that the applicant had not produced any relevant documents in order to substantiate his claims and that therefore he was not entitled to an award in respect of costs and expenses. 54. 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. In the present case, regard being had to the documents in its possession, the complexity of the issues, the lawyer ’ s work and the above criteria, the Court considers it reasonable to award the applicant the sum of EUR 8 00 in respect of costs and expenses, to be paid directly into the bank account indicated by the applicant ’ s representative. 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 11 of the Convention, finding that the reasons invoked by the Romanian authorities for refusing registration of the association were not guided by any pressing social need, nor were they convincing and compelling. Consequently, a measure as radical as the refusal to register the association, taken even before the association had started operating, appeared disproportionate to the aim pursued. |
275 | (Suspected) terrorists | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Introduction 12. The emergency situation in Northern Ireland in the early 1970s and the attendant level of terrorist activity form the background to the introduction of the Prevention of Terrorism (Temporary Provisions) Act 1974 ("the 1974 Act"). Between 1972 and 1992, over three thousand deaths were attributable to terrorism in Northern Ireland. In the mid 1980s, the number of deaths was significantly lower than in the early 1970s but organised terrorism has continued to grow. Since the commencement of the terrorist campaign there have been 35,104 people injured in Northern Ireland as a result of terrorist acts. Many of these injuries involved loss of limbs and permanent physical disability. In the same period there have been a total of 41,859 terrorist shooting or bombing incidents. Other parts of the United Kingdom have also been subjected to a considerable scale of terrorist violence. 13. The 1974 Act came into force on 29 November 1974. The Act proscribed the Irish Republican Army ("IRA") and made it an offence to display support in public of that organisation in Great Britain. The IRA was already a proscribed organisation in Northern Ireland. The Act also conferred special powers of arrest and detention on the police so that they could deal more effectively with the threat of terrorism (see paragraphs 16-17 below). This Act was subject to renewal every six months by Parliament so that, inter alia, the need for the continued use of the special powers could be monitored. The Act was thus renewed until March 1976, when it was re-enacted with certain amendments. Under section 17 of the 1976 Act, the special powers were subject to parliamentary renewal every twelve months. The 1976 Act was in turn renewed annually until 1984, when it was re-enacted with certain amendments. The 1984 Act, which came into force in March 1984, proscribed the Irish National Liberation Army as well as the IRA. It was renewed every year until replaced by the 1989 Act which came into force on 27 March 1989. Section 14 of the 1989 Act contains provisions similar to those contained in section 12 of the 1984 Act. 14. The 1976 Act was reviewed by Lord Shackleton in a report published in July 1978 and subsequently by Lord Jellicoe in a report published in January 1983. Annual reports on the 1984 Act have been presented to Parliament by Sir Cyril Philips (for 1984 and 1985) and Viscount Colville (from 1986-1991). A wider-scale review of the operation of the 1984 Act was also carried out by Viscount Colville in 1987. 15. These reviews were commissioned by the Government and presented to Parliament to assist consideration of the continued need for the legislation. The authors of these reports concluded in particular that in view of the problems inherent in the prevention and investigation of terrorism, the continued use of the special powers of arrest and detention was indispensable. The suggestion that decisions extending detention should be taken by the courts was rejected, notably because the information grounding those decisions was highly sensitive and could not be disclosed to the persons in detention or their legal advisers. For various reasons, the decisions were considered to fall properly within the sphere of the executive. In his 1987 report reviewing the provisions of section 12, Viscount Colville considered that good reasons existed for extending detention in certain cases beyond forty-eight hours and up to seven days. He noted in this regard that the police in Northern Ireland were frequently confronted by a situation where they had good intelligence to connect persons with a terrorist incident but the persons concerned, if detained, made no statements, and witnesses were afraid to come forward, certainly in court: in these circumstances, it was concluded, the reliance on forensic evidence by the prosecution was increasing, and detective work had assumed a higher degree of importance. He also set out the reasons which individually or, as often, in combination constituted good grounds for extending the various periods within which otherwise persons suspected of involvement in terrorism would have to be charged or taken to court. These included checking of fingerprints; forensic tests; checking the detainee ’ s replies against intelligence; new lines of inquiry; information obtained from one or more than one other detainee in the same case; finding and consulting other witnesses (Command Paper 264, paragraphs 5.1.5-5.1.7, December 1987). B. Power to arrest without warrant under the 1984 and other Acts 16. The relevant provisions of section 12 of the 1984 Act, substantially the same as those of the 1974 and 1976 Acts, are as follows: "12. (1) [A] constable may arrest without warrant a person whom he has reasonable grounds for suspecting to be ... (b) a person who is or has been concerned in the commission, preparation or instigation of acts of terrorism to which this Part of this Act applies; ... (3) The acts of terrorism to which this Part of this Act applies are (a) acts of terrorism connected with the affairs of Northern Ireland; ... (4) A person arrested under this section shall not be detained in right of the arrest for more than forty-eight hours after his arrest; but the Secretary of State may, in any particular case, extend the period of forty-eight hours by a period or periods specified by him. (5) Any such further period or periods shall not exceed five days in all. (6) The following provisions (requirement to bring accused person before the court after his arrest) shall not apply to a person detained in right of the arrest ... (d) Article 131 of the Magistrates ’ Courts ( Northern Ireland ) Order 1981; ... (8) The provisions of this section are without prejudice to any power of arrest exercisable apart from this section." 17. According to the definition given in section 14 (1) of the 1984 Act, "terrorism means the use of violence for political ends, and includes any use of violence for the purpose of putting the public or any section of the public in fear". An identical definition of terrorism in the Northern Ireland (Emergency Provisions) Act 1978 was held to be "in wide terms" by the House of Lords, which rejected an interpretation of the word "terrorist" that would have been "in narrower terms than popular usage of the word ‘ terrorist ’ might connote to a police officer or a layman" (McKee v. Chief Constable for Northern Ireland [1985] 1 All England Law Reports 1 at 3-4, per Lord Roskill ). C. Detention under the ordinary criminal law 18. Article 131 of the Magistrates ’ Courts (Northern Ireland) Order 1981, declared inapplicable in cases of suspected terrorism by section 12(6)(d) of the 1984 Act (see paragraph 16 above), provided that where a person arrested without warrant was not released from custody within twenty-four hours, he had to be brought before a Magistrates ’ Court as soon as practicable thereafter but not later than forty-eight hours after his arrest. 19. Article 131 was repealed by the Police and Criminal Evidence ( Northern Ireland ) Order 1989 (Statutory Instrument 1989/1341 (Northern Ireland) 12). Under the provisions of the 1989 Order (which corresponds directly with the Police and Criminal Evidence Act 1984 in force in England and Wales) a person arrested on suspicion of his involvement in an offence may initially not be kept in police detention for more than twenty-four hours without being charged (Article 42(1)). On the authority of a police officer of the rank of Superintendent or above, the detention may be extended for a period not exceeding thirty-six hours from the time of arrest, or arrival at a police station after arrest, when the officer concerned: "... has reasonable grounds for believing that - (a) the detention of that person without charge is necessary to secure or preserve evidence relating to an offence for which he is under arrest or to obtain such evidence by questioning him; (b) an offence for which he is under arrest is a serious arrestable offence; (c) the investigation is being conducted diligently and expeditiously." (Article 43(1)) By Article 44(1) of the Order a Magistrates ’ Court is empowered, on a complaint in writing by a constable, to extend the period of police detention if satisfied that there are reasonable grounds for believing that the further detention of that person is justified. Detention is only justified for these purposes if the conditions set out in (a)-(c) above are satisfied (Article 44(4)). The person to whom the complaint relates must be furnished with a copy of the complaint and brought before the court for the hearing (Article 44(2)) and is entitled to be legally represented at the hearing (Article 44(3)). The period of further detention authorised by the warrant may not exceed thirty-six hours (Article 44(12)). By Article 45 a Magistrates ’ Court may, on a complaint in writing by a constable, extend the period of detention for such period as the court thinks fit, having regard to the evidence before it (Article 45(1), (2)). This additional extension may not exceed thirty-six hours and may not end later than ninety-six hours after the time of arrest or arrival at the police station after arrest (Article 45(3)). D. Exercise of the power to make an arrest under section 12(1)(b) of the 1984 Act 20. In order to make a lawful arrest under section 12(1)(b) of the 1984 Act, the arresting officer must have a reasonable suspicion that the person being arrested is or has been concerned in the commission, preparation or instigation of acts of terrorism. In addition, an arrest without warrant is subject to the applicable common law rules laid down by the House of Lords in the case of Christie v. Leachinsky [1947] Appeal Cases 573 at 587 and 600. The person being arrested must in ordinary circumstances be informed of the true ground of his arrest at the time he is taken into custody or, if special circumstances exist which excuse this, as soon thereafter as it is reasonably practicable to inform him. This does not require technical or precise language to be used provided the person being arrested knows in substance why. In the case of Ex parte Lynch [1980] Northern Ireland Reports 126 at 131, in which the arrested person sought a writ of habeas corpus, the High Court of Northern Ireland discussed section 12(1)(b). The arresting officer had told the applicant that he was arresting him under section 12 of the 1976 Act as he suspected him of being involved in terrorist activities. Accordingly, the High Court found that the lawfulness of the arrest could not be impugned in this respect. 21. The arresting officer ’ s suspicion must be reasonable in the circumstances and to decide this the court must be told something about the sources and grounds of the suspicion (per Higgins J. in Van Hout v. Chief Constable of the RUC and the Northern Ireland Office, decision of Northern Ireland High Court, 28 June 1984 ). E. Purpose of arrest and detention under section 12 of the 1984 Act 22. Under ordinary law, there is no power to arrest and detain a person merely to make enquiries about him. The questioning of a suspect on the ground of a reasonable suspicion that he has committed an arrestable offence is a legitimate cause for arrest and detention without warrant where the purpose of such questioning is to dispel or confirm such a reasonable suspicion, provided he is brought before a court as soon as practicable (R. v. Houghton [1979] 68 Criminal Appeal Reports 197 at 205, and Holgate -Mohammed v. Duke [1984] 1 All England Law Reports 1054 at 1059). On the other hand, Lord Lowry LCJ held in the case of Ex parte Lynch (loc. cit. at 131) that under the 1984 Act no specific crime need be suspected to ground a proper arrest under section 12(1)(b). He added (ibid.): "... [I]t is further to be noted that an arrest under section 12(1) leads ... to a permitted period of detention without preferring a charge. No charge may follow at all; thus an arrest is not necessarily ... the first step in a criminal proceeding against a suspected person on a charge which was intended to be judicially investigated." F. Extension of period of detention 23. In Northern Ireland, applications for extended detention beyond the initial forty-eight-hour period are processed at senior police level in Belfast and then forwarded to the Secretary of State for Northern Ireland for approval by him or, if he is not available, a junior minister. There are no criteria in the 1984 Act (or its predecessors) governing decisions to extend the initial period of detention, though strict criteria that have been developed in practice are listed in the reports and reviews referred to above (see paragraphs 14 and 15 above). According to statistics submitted by the Government a total number of 1,549 persons were arrested under the Prevention of Terrorism (Temporary Provisions) Act in 1990 of whom approximately 333 were eventually charged. Of these, 1,140 were detained for two days or less, 17% of whom were charged. However, of the 365 persons detained for more than two days and less than five days 39% were charged. In addition, of the 45 persons detained for more than five days some 67% were charged, many with serious offences including murder, attempted murder and causing explosions. In each of these cases the evidence which formed the basis of the charges only became available or was revealed in the latest stages of the detention of the person concerned. G. Rights during detention 24. A person detained under section 12 of the 1984 Act (now section 14 of the 1989 Act) has the rights, if he so requests, to have a friend, relative or other person informed of the fact and place of his detention and to consult a solicitor privately; he must be informed of these rights as soon as practicable. Any such requests must be complied with as soon as practicable. This may, however, be delayed for up to forty-eight hours in certain specified circumstances (sections 44 and 45 of the Northern Ireland (Emergency Provisions) Act 1991 - formerly sections 14 and 15 of the 1987 Act). A decision to deny access to a solicitor within the first forty-eight hours is subject to judicial review. Cases decided by the High Court in Northern Ireland establish that under section 45 of the Northern Ireland (Emergency Provisions) Act 1991 the power to delay access can only be used if the officer concerned has reasonable grounds for believing that the exercise of the right would have one or more of the specific consequences set out in subsection 8 of section 45. There is a burden on the officer concerned to show to the satisfaction of the court that he had reasonable grounds for his belief. In the absence of evidence to establish such reasonable grounds the court will order the immediate grant of access to a solicitor (decisions of the Northern Ireland High Court in applications for judicial review by Patrick Duffy ( 20 September 1991 ), Dermot and Deirdre McKenna ( 10 February 1992 ), Francis Maher and Others ( 25 March 1992 )). Since 1979, the practice has been that a detainee is not interviewed until he has been examined by a forensic medical officer. Thereafter, arrangements are made for the detainee to have access to a medical officer including his own doctor. There is provision for consultation with a forensic medical officer at a pre-arranged time each day. The above rights are briefly set out in a "Notice to Persons in Police Custody" which is served on persons arrested under section 12 when they are detained. H. Judicial involvement in terrorist investigations 25. Under paragraph 2 of Schedule 7 to the Prevention of Terrorism (Temporary Provisions) Act 1989 a justice of the peace may grant a warrant authorising a constable involved in a terrorist investigation to search premises and seize and retain anything found there if he has reasonable grounds for believing inter alia that it is likely to be of substantial value to the investigation. Paragraphs 5(1) and (4) of Schedule 7 confer a similar power on a circuit judge and on a county court judge in Northern Ireland. However, paragraph 8(2) provides that the Secretary of State may give to any constable in Northern Ireland the authority which may be given by a search warrant under paragraphs 2 and 5 if inter alia it appears to him that the disclosure of information that would be necessary for an application under those provisions "would be likely to prejudice the capability of members of the Royal Ulster Constabulary in relation to the investigation of offences ... or otherwise prejudice the safety of, or of persons in, Northern Ireland". PROCEEDINGS BEFORE THE COMMISSION 33. The applicants applied to the Commission on 19 January 1989 (applications nos. 14553/89 and 14554/89). They complained that they were not brought promptly before a judge, in breach of Article 5 para. 3 (art. 5-3). They also alleged that they did not have an enforceable right to compensation in breach of Article 5 para. 5 (art. 5-5) and that there was no effective remedy in respect of their complaints contrary to Article 13 (art. 13). They subsequently withdrew other complaints that they had made under Articles 3, 5 paras. 1 and 4, 8, 9 and 10 (art. 3, art. 5-1, art. 5-4, art. 8, art. 9, art. 10) of the Convention. 34. On 5 October 1990 the Commission ordered the joinder of the applications and on 28 February 1991 declared the case admissible. In its report of 3 December 1991 (Article 31) (art. 31) the Commission expressed the opinion: (a) by eight votes to five, that there had been no violation of Article 5 paras. 3 and 5 (art. 5-3, art. 5-5) of the Convention in view of the United Kingdom ’ s derogation of 23 December 1988 under Article 15 (art. 15) of the Convention; (b) unanimously, that no separate issue arose under Article 13 (art. 13). The full text of the Commission ’ s opinion and of the separate opinions contained in the report is reproduced as an annex to this judgment [*]. FINAL SUBMISSIONS MADE TO THE COURT BY THE GOVERNMENT 35. The Government requested the Court to find that there has been no violation of Article 5 paras. 3 and 5 (art. 5-3, art. 5-5) in view of the United Kingdom ’ s derogation of 23 December 1988 under Article 15 (art. 15) of the Convention and that there has been no violation of Article 13 (art. 13) or alternatively that no separate issue arises under this provision. AS TO THE LAW I. ALLEGED VIOLATIONS OF ARTICLE 5 (art. 5) 36. The applicants, Mr Brannigan and Mr McBride, were detained under section 12 (1) (b) of the 1984 Act in early January 1989 very shortly after the Government ’ s derogation of 23 December 1988 under Article 15 (art. 15) of the Convention, which itself was made soon after the Court ’ s judgment of 29 November 1988 in the case of Brogan and Others (judgment of 29 November 1988, Series A no. 145-B). Their detention lasted for periods of six days, fourteen hours and thirty minutes, and four days, six hours and twenty-five minutes respectively (see paragraphs 10-11 above). They complained of violations of Article 5 paras. 3 and 5 (art. 5-3, art. 5-5) of the Convention. The relevant parts of Article 5 (art. 5) are as follows: "1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence ...; ... 3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article (art. 5-1-c) shall be brought promptly before a judge or other officer authorised by law to exercise judicial power ... ... 5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article (art. 5) shall have an enforceable right to compensation." 37. The Government, noting that both of the applicants were detained for longer periods than the shortest period found by the Court to be in breach of Article 5 para. 3 (art. 5-3) in the case of Brogan and Others, conceded that the requirement of promptness had not been respected in the present cases (see paragraph 30 above). They further accepted that, in the absence of an enforceable right to compensation in respect of the breach of Article 5 para. 3 (art. 5-3), Article 5 para. 5 (art. 5-5) had not been complied with. Having regard to its judgment in the case of Brogan and Others, the Court finds that Article 5 paras. 3 and 5 (art. 5-3, art. 5-5) have not been respected (loc. cit., pp. 30-35, paras. 55-62 and 66-67). 38. However, the Government further submitted that the failure to observe these requirements of Article 5 (art. 5) had been met by their derogation of 23 December 1988 under Article 15 (art. 15) of the Convention. The Court must therefore examine the validity of the Government ’ s derogation in the light of this provision. It recalls at the outset that the question whether any derogation from the United Kingdom ’ s obligations under the Convention might be permissible under Article 15 (art. 15) by reason of the terrorist campaign in Northern Ireland was specifically left open by the Court in the Brogan and Others case (loc. cit., pp. 27-28, para. 48). Validity of the United Kingdom ’ s derogation under Article 15 (art. 15) 39. The applicants maintained that the derogation under Article 15 (art. 15) was invalid. This was disputed by both the Government and the Commission. 40. Article 15 (art. 15) provides: "1. In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under [the] Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law. 2. No derogation from Article 2 (art. 2), except in respect of deaths resulting from lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 (art. 3, art. 4-1, art. 7) shall be made under this provision. 3. Any High Contracting Party availing itself of this right of derogation shall keep the Secretary General of the Council of Europe fully informed of the measures which it has taken and the reasons therefor. It shall also inform the Secretary General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed." 1. The Court ’ s approach to the matter 41. The applicants argued that it would be inconsistent with Article 15 para. 2 (art. 15-2) if, in derogating from safeguards recognised as essential for the protection of non- derogable rights such as Articles 2 and 3 (art. 2, art. 3), the national authorities were to be afforded a wide margin of appreciation. This was especially so where the emergency was of a quasi-permanent nature such as that existing in Northern Ireland. To do so would also be inconsistent with the Brogan and Others judgment where the Court had regarded judicial control as one of the fundamental principles of a democratic society and had already - they claimed - extended to the Government a margin of appreciation by taking into account in paragraph 58 (p. 32) the context of terrorism in Northern Ireland (loc. cit.). 42. In their written submissions, Amnesty International maintained that strict scrutiny was required by the Court when examining derogation from fundamental procedural guarantees which were essential for the protection of detainees at all times, but particularly in times of emergency. Liberty, Interights and the Committee on the Administration of Justice (" Liberty and Others") submitted for their part that, if States are to be allowed a margin of appreciation at all, it should be narrower the more permanent the emergency becomes. 43. The Court recalls that it falls to each Contracting State, with its responsibility for "the life of [its] nation", to determine whether that life is threatened by a "public emergency" and, if so, how far it is necessary to go in attempting to overcome the emergency. By reason of their direct and continuous contact with the pressing needs of the moment, the national authorities are in principle in a better position than the international judge to decide both on the presence of such an emergency and on the nature and scope of derogations necessary to avert it. Accordingly, in this matter a wide margin of appreciation should be left to the national authorities (see the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, pp. 78-79, para. 207). Nevertheless, Contracting Parties do not enjoy an unlimited power of appreciation. It is for the Court to rule on whether inter alia the States have gone beyond the "extent strictly required by the exigencies" of the crisis. The domestic margin of appreciation is thus accompanied by a European supervision (ibid.). At the same time, in exercising its supervision the Court must give appropriate weight to such relevant factors as the nature of the rights affected by the derogation, the circumstances leading to, and the duration of, the emergency situation. 2. Existence of a public emergency threatening the life of the nation 44. Although the applicants did not dispute that there existed a public emergency "threatening the life of the nation", they submitted that the burden rested on the Government to satisfy the Court that such an emergency really existed. 45. It was, however, suggested by Liberty and Others in their written submissions that at the relevant time there was no longer any evidence of an exceptional situation of crisis. They maintained that reconsideration of the position could only properly have led to a further derogation if there was a demonstrable deterioration in the situation since August 1984 when the Government withdrew their previous derogation. For the Standing Advisory Commission on Human Rights, on the other hand, there was a public emergency in Northern Ireland at the relevant time of a sufficient magnitude to entitle the Government to derogate. 46. Both the Government and the Commission, referring to the existence of public disturbance in Northern Ireland, maintained that there was such an emergency. 47. Recalling its case-law in Lawless v. Ireland (judgment of 1 July 1961, Series A no. 3, p. 56, para. 28) and Ireland v. the United Kingdom (loc. cit., Series A no. 25, p. 78, para. 205) and making its own assessment, in the light of all the material before it as to the extent and impact of terrorist violence in Northern Ireland and elsewhere in the United Kingdom (see paragraph 12 above), the Court considers there can be no doubt that such a public emergency existed at the relevant time. It does not judge it necessary to compare the situation which obtained in 1984 with that which prevailed in December 1988 since a decision to withdraw a derogation is, in principle, a matter within the discretion of the State and since it is clear that the Government believed that the legislation in question was in fact compatible with the Convention (see paragraphs 49-51 below). 3. Were the measures strictly required by the exigencies of the situation? (a) General considerations 48. The Court recalls that judicial control of interferences by the executive with the individual ’ s right to liberty provided for by Article 5 (art. 5) is implied by one of the fundamental principles of a democratic society, namely the rule of law (see the above-mentioned Brogan and Others judgment, Series A no. 145-B, p. 32, para. 58). It further observes that the notice of derogation invoked in the present case was lodged by the respondent Government soon after the judgment in the above-mentioned Brogan and Others case where the Court had found the Government to be in breach of their obligations under Article 5 para. 3 (art. 5-3) by not bringing the applicants "promptly" before a court. The Court must scrutinise the derogation against this background and taking into account that the power of arrest and detention in question has been in force since 1974. However, it must be observed that the central issue in the present case is not the existence of the power to detain suspected terrorists for up to seven days - indeed a complaint under Article 5 para. 1 (art. 5-1) was withdrawn by the applicants (see paragraph 33 above) - but rather the exercise of this power without judicial intervention. (b) Was the derogation a genuine response to an emergency situation? 49. For the applicants, the purported derogation was not a necessary response to any new or altered state of affairs but was the Government ’ s reaction to the decision in Brogan and Others and was lodged merely to circumvent the consequences of this judgment. 50. The Government and the Commission maintained that, while it was true that this judgment triggered off the derogation, the exigencies of the situation have at all times since 1974 required the powers of extended detention conferred by the Prevention of Terrorism legislation. It was the view of successive Governments that these powers were consistent with Article 5 para. 3 (art. 5-3) and that no derogation was necessary. However, both the measures and the derogation were direct responses to the emergency with which the United Kingdom was and continues to be confronted. 51. The Court first observes that the power of arrest and extended detention has been considered necessary by the Government since 1974 in dealing with the threat of terrorism. Following the Brogan and Others judgment the Government were then faced with the option of either introducing judicial control of the decision to detain under section 12 of the 1984 Act or lodging a derogation from their Convention obligations in this respect. The adoption of the view by the Government that judicial control compatible with Article 5 para. 3 (art. 5-3) was not feasible because of the special difficulties associated with the investigation and prosecution of terrorist crime rendered derogation inevitable. Accordingly, the power of extended detention without such judicial control and the derogation of 23 December 1988 being clearly linked to the persistence of the emergency situation, there is no indication that the derogation was other than a genuine response. (c) Was the derogation premature? 52. The applicants maintained that derogation was an interim measure which Article 15 (art. 15) did not provide for since it appeared from the notice of derogation communicated to the Secretary General of the Council of Europe on 23 December 1988 that the Government had not reached a "firm or final view" on the need to derogate from Article 5 para. 3 (art. 5-3) and required a further period of reflection and consultation. Following this period the Secretary of State for the Home Department confirmed the derogation in a statement to Parliament on 14 November 1989 (see paragraph 32 above). Prior to this concluded view Article 15 (art. 15) did not permit derogation. Furthermore, even at this date the Government had not properly examined whether the obligation in Article 5 para. 3 (art. 5-3) could be satisfied by an "officer authorised by law to exercise judicial power". 53. The Government contended that the validity of the derogation was not affected by their examination of the possibility of judicial control of extended detention since, as the Commission had pointed out, it was consistent with the requirements of Article 15 para. 3 (art. 15-3) to keep derogation measures under constant review. 54. The Court does not accept the applicants ’ argument that the derogation was premature. While it is true that Article 15 (art. 15) does not envisage an interim suspension of Convention guarantees pending consideration of the necessity to derogate, it is clear from the notice of derogation that "against the background of the terrorist campaign, and the over-riding need to bring terrorists to justice, the Government did not believe that the maximum period of detention should be reduced". However it remained the Government ’ s wish "to find a judicial process under which extended detention might be reviewed and where appropriate authorised by a judge or other judicial officer" (see paragraph 31 above). The validity of the derogation cannot be called into question for the sole reason that the Government had decided to examine whether in the future a way could be found of ensuring greater conformity with Convention obligations. Indeed, such a process of continued reflection is not only in keeping with Article 15 para. 3 (art. 15-3) which requires permanent review of the need for emergency measures but is also implicit in the very notion of proportionality. (d) Was the absence of judicial control of extended detention justified? 55. The applicants further considered that there was no basis for the Government ’ s assertion that control of extended detention by a judge or other officer authorised by law to exercise judicial power was not possible or that a period of seven days ’ detention was necessary. They did not accept that the material required to satisfy a court of the justification for extended detention could be more sensitive than that needed in proceedings for habeas corpus. They and the Standing Advisory Commission on Human Rights also pointed out that the courts in Northern Ireland were frequently called on to deal with submissions based on confidential information - for example, in bail applications - and that there were sufficient procedural and evidential safeguards to protect confidentiality. Procedures also existed where judges were required to act on the basis of material which would not be disclosed either to the legal adviser or to his client. This was the case, for example, with claims by the executive to public interest immunity or application by the police to extend detention under the Police and Criminal Evidence (Northern Ireland) Order 1989 (see paragraph 19 above). 56. On this point the Government responded that none of the above procedures involved both the non-disclosure of material to the detainee or his legal adviser and an executive act of the court. The only exception appeared in Schedule 7 to the Prevention of Terrorism (Temporary Provisions) Act 1989 where inter alia the court may make an order in relation to the production of, and search for, special material relevant to terrorist investigations. However, paragraph 8 of Schedule 7 provides that, where the disclosure of information to the court would be too sensitive or would prejudice the investigation, the power to make the order is conferred on the Secretary of State and not the court (see paragraph 25 above). It was also emphasised that the Government had reluctantly concluded that, within the framework of the common-law system, it was not feasible to introduce a system which would be compatible with Article 5 para. 3 (art. 5-3) but would not weaken the effectiveness of the response to the terrorist threat. Decisions to prolong detention were taken on the basis of information the nature and source of which could not be revealed to a suspect or his legal adviser without risk to individuals assisting the police or the prospect of further valuable intelligence being lost. Moreover, involving the judiciary in the process of granting or approving extensions of detention created a real risk of undermining their independence as they would inevitably be seen as part of the investigation and prosecution process. In addition, the Government did not accept that the comparison with habeas corpus was a valid one since judicial involvement in the grant or approval of extension would require the disclosure of a considerable amount of additional sensitive information which it would not be necessary to produce in habeas corpus proceedings. In particular, a court would have to be provided with details of the nature and extent of police inquiries following the arrest, including details of witnesses interviewed and information obtained from other sources as well as information about the future course of the police investigation. Finally, Lords Shackleton and Jellicoe and Viscount Colville in their reports had concluded that arrest and extended detention were indispensable powers in combating terrorism. These reports also found that the training of terrorists in remaining silent under police questioning hampered and protracted the investigation of terrorist offences. In consequence, the police were required to undertake extensive checks and inquiries and to rely to a greater degree than usual on painstaking detective work and forensic examination (see paragraph 15 above). 57. The Commission was of the opinion that the Government had not overstepped their margin of appreciation in this regard. 58. The Court notes the opinions expressed in the various reports reviewing the operation of the Prevention of Terrorism legislation that the difficulties of investigating and prosecuting terrorist crime give rise to the need for an extended period of detention which would not be subject to judicial control (see paragraph 15 above). Moreover, these special difficulties were recognised in its above-mentioned Brogan and Others judgment (see Series A no. 145-B, p. 33, para. 61). It further observes that it remains the view of the respondent Government that it is essential to prevent the disclosure to the detainee and his legal adviser of information on the basis of which decisions on the extension of detention are made and that, in the adversarial system of the common law, the independence of the judiciary would be compromised if judges or other judicial officers were to be involved in the granting or approval of extensions. The Court also notes that the introduction of a "judge or other officer authorised by law to exercise judicial power" into the process of extension of periods of detention would not of itself necessarily bring about a situation of compliance with Article 5 para. 3 (art. 5-3). That provision - like Article 5 para. 4 (art. 5-4) - must be understood to require the necessity of following a procedure that has a judicial character although that procedure need not necessarily be identical in each of the cases where the intervention of a judge is required (see, among other authorities, the following judgments: as regards Article 5 para. 3 (art. 5-3) Schiesser v. Switzerland of 4 December 1979, Series A no. 34, p. 13, para. 30 and Huber v. Switzerland of 23 October 1990, Series A no. 188, p. 18, paras. 42-43; as regards Article 5 para. 4 (art. 5-4), De Wilde, Ooms and Versyp v. Belgium of 18 June 1971, Series A no. 12, p. 41, para. 78, Sanchez- Reisse v. Switzerland of 21 October 1986, Series A no. 107, p. 19, para. 51, and Lamy v. Belgium of 30 March 1989, Series A no. 151, pp. 15-16, para. 28). 59. It is not the Court ’ s role to substitute its view as to what measures were most appropriate or expedient at the relevant time in dealing with an emergency situation for that of the Government which have direct responsibility for establishing the balance between the taking of effective measures to combat terrorism on the one hand, and respecting individual rights on the other (see the above-mentioned Ireland v. the United Kingdom judgment, Series A no. 25, p. 82, para. 214, and the Klass and Others v. Germany judgment of 6 September 1978, Series A no. 28, p. 23, para. 49). In the context of Northern Ireland, where the judiciary is small and vulnerable to terrorist attacks, public confidence in the independence of the judiciary is understandably a matter to which the Government attach great importance. 60. In the light of these considerations it cannot be said that the Government have exceeded their margin of appreciation in deciding, in the prevailing circumstances, against judicial control. (e) Safeguards against abuse 61. The applicants, Amnesty International and Liberty and Others maintained that the safeguards against abuse of the detention power were negligible and that during the period of detention the detainee was completely cut off from the outside world and not permitted access to newspapers, radios or his family. Amnesty International, in particular, stressed that international standards such as the 1988 United Nations Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (General Assembly Resolution 43/173 of 9 December 1988) ruled out incommunicado detention by requiring access to lawyers and members of the family. Amnesty submitted that being brought promptly before a judicial authority was especially important since in Northern Ireland habeas corpus has been shown to be ineffective in practice. In their view Article 5 para. 4 (art. 5-4) should be considered non- derogable in times of public emergency. In addition, it was contended that a decision to extend detention cannot in practical terms be challenged by habeas corpus or judicial review since it is taken completely in secret and, in nearly all cases, is granted. This is evident from the fact that, despite the thousands of extended detention orders, a challenge to such a decision has never been attempted. 62. Although submissions have been made by the applicants and the organisations concerning the absence of effective safeguards, the Court is satisfied that such safeguards do in fact exist and provide an important measure of protection against arbitrary behaviour and incommunicado detention. 63. In the first place, the remedy of habeas corpus is available to test the lawfulness of the original arrest and detention. There is no dispute that this remedy was open to the applicants had they or their legal advisers chosen to avail themselves of it and that it provides an important measure of protection against arbitrary detention (see the above-mentioned Brogan and Others judgment, Series A no. 145-B, pp. 34-35, paras. 63-65). The Court recalls, in this context, that the applicants withdrew their complaint of a breach of Article 5 para. 4 (art. 5-4) of the Convention (see paragraph 33 above). 64. In the second place, detainees have an absolute and legally enforceable right to consult a solicitor after forty-eight hours from the time of arrest. Both of the applicants were, in fact, free to consult a solicitor after this period (see paragraphs 10 and 11 above). Moreover, within this period the exercise of this right can only be delayed where there exists reasonable grounds for doing so. It is clear from judgments of the High Court in Northern Ireland that the decision to delay access to a solicitor is susceptible to judicial review and that in such proceedings the burden of establishing reasonable grounds for doing so rests on the authorities. In these cases judicial review has been shown to be a speedy and effective manner of ensuring that access to a solicitor is not arbitrarily withheld (see paragraph 24 above). It is also not disputed that detainees are entitled to inform a relative or friend about their detention and to have access to a doctor. 65. In addition to the above basic safeguards the operation of the legislation in question has been kept under regular independent review and, until 1989, it was subject to regular renewal. (f) Conclusion 66. Having regard to the nature of the terrorist threat in Northern Ireland, the limited scope of the derogation and the reasons advanced in support of it, as well as the existence of basic safeguards against abuse, the Court takes the view that the Government have not exceeded their margin of appreciation in considering that the derogation was strictly required by the exigencies of the situation. 4. Other obligations under international law 67. The Court recalls that under Article 15 para. 1 (art. 15-1) measures taken by the State derogating from Convention obligations must not be "inconsistent with its other obligations under international law" (see paragraph 40 above). 68. In this respect, before the Court the applicants contended for the first time that it was an essential requirement for a valid derogation under Article 4 of the 1966 United Nations International Covenant on Civil and Political Rights ("the Covenant"), to which the United Kingdom is a Party, that a public emergency must have been "officially proclaimed". Since such proclamation had never taken place the derogation was inconsistent with the United Kingdom ’ s other obligations under international law. In their view this requirement involved a formal proclamation and not a mere statement in Parliament. 69. For the Government, it was open to question whether an official proclamation was necessary for the purposes of Article 4 of the Covenant, since the emergency existed prior to the ratification of the Covenant by the United Kingdom and has continued to the present day. In any event, the existence of the emergency and the fact of derogation were publicly and formally announced by the Secretary of State for the Home Department to the House of Commons on 22 December 1988. Moreover there had been no suggestion by the United Nations Human Rights Committee that the derogation did not satisfy the formal requirements of Article 4. 70. The Delegate of the Commission considered the Government ’ s argument to be tenable. 71. The relevant part of Article 4 of the Covenant states: "In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed ..." 72. The Court observes that it is not its role to seek to define authoritatively the meaning of the terms "officially proclaimed" in Article 4 of the Covenant. Nevertheless it must examine whether there is any plausible basis for the applicant ’ s argument in this respect. 73. In his statement of 22 December 1988 to the House of Commons the Secretary of State for the Home Department explained in detail the reasons underlying the Government ’ s decision to derogate and announced that steps were being taken to give notice of derogation under both Article 15 (art. 15) of the European Convention and Article 4 of the Covenant. He added that there was "a public emergency within the meaning of these provisions in respect of terrorism connected with the affairs of Northern Ireland in the United Kingdom ..." (see paragraph 30 above). In the Court ’ s view the above statement, which was formal in character and made public the Government ’ s intentions as regards derogation, was well in keeping with the notion of an official proclamation. It therefore considers that there is no basis for the applicants ’ arguments in this regard. 5. Summary 74. In the light of the above examination, the Court concludes that the derogation lodged by the United Kingdom satisfies the requirements of Article 15 (art. 15) and that therefore the applicants cannot validly complain of a violation of Article 5 para. 3 (art. 5-3). It follows that there was no obligation under Article 5 para. 5 (art. 5-5) to provide the applicants with an enforceable right to compensation. II. ALLEGED VIOLATION OF ARTICLE 13 (art. 13) 75. In the proceedings before the Commission the applicants complained that they had no effective domestic remedy at their disposal in respect of their Article 5 (art. 5) claims. They requested the Court to uphold this claim but made no submissions in support of it. Article 13 (art. 13) provides as follows: "Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity." 76. The Court recalls that it was open to the applicants to challenge the lawfulness of their detention by way of proceedings for habeas corpus and that the Court in its Brogan and Others judgment of 29 November 1988 found that this remedy satisfied Article 5 para. 4 (art. 5-4) of the Convention (Series A no. 145-B, pp. 34-35, paras. 63-65). Since the requirements of Article 13 (art. 13) are less strict than those of Article 5 para. 4 (art. 5-4), which must be regarded as the lex specialis in respect of complaints under Article 5 (art. 5), there has been no breach of this provision (see the de Jong, Baljet and van den Brink v. the Netherlands judgment of 22 May 1984, Series A no. 77, p. 27, para. 60). | The Court held that there had been no violation of Article 5 § 3 (right to liberty and security) of the Convention. The detention of the applicants for periods longer than in the Brogan and Others case (see above) did not breach the Convention as the United Kingdom had made a valid emergency derogation under Article 15 of the Convention (see above, page 1). |
1,004 | Cases concerning the NATO operation in former Yugoslavia | II. RELEVANT DOMESTIC LAW AND PRACTICE 20. The relevant provisions of the Italian Constitution are as follows : Article 10 § 1 “ The Italian legal system shall comply with the generally recognised rules of international law. ... ” Article 24 § 1 “ Everyone may bring legal proceedings to protect his or her rights and legitimate interests. ... ” Article 28 “ Civil servants, other agents of the State and public entities shall be directly responsible, in accordance with the criminal, civil and administrative law, for acts committed in breach of rights. In connection with such acts, civil liability shall extend to the State and public entities. ... ” Article 113 “ Judicial protection of rights and legitimate interests in the ordinary and administrative courts shall always lie against acts of the public administrative authorities. It may not be excluded or limited to extraordinary remedies or specific categories of act. The law shall specify which judicial bodies are empowered to set aside acts of the public authorities, in what cases and with what effects.” 21. Article 31 of Royal Decree no. 1024 of 26 June 1924 provides : “ No appeal to the Consiglio di Stato, sitting in its judicial capacity, shall lie against acts or decisions of the government which involve the exercise of political power.” 22. Article 2043 of the Civil Code provides: “Any unlawful act which causes damage to another will render the perpetrator liable in damages under the civil law.” 23. Article 41 of the Code of Civil Procedure, which deals with the issue of jurisdiction, provides: “For so long as there has been no determination of the merits of the proceedings at first instance, any party may seek a ruling on a question of jurisdiction under Article 37 from the Court of Cassation, sitting as a full court. ...” Article 37 of the Code of Civil Procedure provides: “A ruling that an ordinary court has no jurisdiction because the case concerns a public authority or is within the province of a special court may be made at any time and at any level of jurisdiction, including by the court of its own motion.” 24. The relevant provisions of the Criminal Code provide: Article 6 “Anyone who commits an offence on the territory of the State shall be punished in accordance with Italian law. The offence will be regarded as having been committed on the territory of the State if all or part of the act or omission at the origin of the offence or all or some of the consequences of such act or omission occurred there.” Article 185 “Restitution and compensation for damage. The commission of an offence shall give rise to an obligation of restitution under the civil law [Articles 2043 et seq. of the Civil Code]. Any offence that causes pecuniary damage [Article 2056 of the Civil Code] or non-pecuniary damage [Article 2059 of the Civil Code] shall impose an obligation on the perpetrator and those accountable for his or her actions under the civil law [Article 2047 of the Civil Code] to make reparation.” 25. Article 174 of the Wartime Military Criminal Code reads as follows: “A commanding officer of a military force who, in order to inflict damage on the enemy, orders or authorises the use of a means or method of warfare that is prohibited by law or by international treaty or which is in any event contrary to the military code of honour shall be liable on conviction to a minimum of five years ’ imprisonment unless the act concerned is a criminal offence under a specific statutory provision. If the act results in a massacre, the minimum term of imprisonment shall be ten years.” 26. In a judgment of 10 July 1992 (no. 124/1993), the Court of Cassation, sitting as a full court, established the rule that the courts had no jurisdiction to hear cases against the authorities relating to political acts. A trade union had brought an action against the Prime Minister, the Civil Service Ministry and the Ministry of State Education on the ground that the government had failed to comply with their undertakings. The Court of Cassation noted, inter alia, that such a failure could only engage the government ’ s political responsibility, but could not create a right. It ruled that the courts had no jurisdiction to hear the case after formulating the following principle: “Legislative action is a political act since it is the standard means of performing political and governmental functions. The governmental authority ’ s conduct in the present case was not, therefore, capable in law of causing individuals damage (whether to their personal rights or to their legitimate interests); it consequently escapes all judicial scrutiny.” 27. The Italian courts had in fact already examined this question in a number of earlier cases and had ruled that, as they were political in nature, the following acts escaped the scrutiny of the domestic courts: (i) a waiver of the right to exercise jurisdiction under Article VII of the Agreement of 1951 between the Parties to the North Atlantic Treaty regarding the Status of their Forces (Court of Cassation, Third Criminal Division, 21 March 1962, no. 1645, Kinardi and Others, Giust. Pen. [Criminal Justice], 1963, III, p. 80); (ii) the assignment of property belonging to Italian nationals under the London Convention of 1951 (Court of Cassation, sitting as a full court, 12 July 1968, no. 2452, De Langlade v. the Treasury, Rivista diritto internazionale [ International Law Review ], 1969, p. 583); (iii) a Transport Ministry decree suspending permission to transport goods to Austria (Rome District Court, 18 May 1993, Soc. S. and C. Transp. GmbH v. Ministry of Transport, Rivista diritto internazionale privato e processuale [ Review of Private International Law and Procedure ], 1995, p. 755); (iv) a decision by the Ministry of Employment appointing employees ’ representatives as delegates to the International Labour Organisation (Lazio Regional Administrative Court, 20 August 1976, no. 492, CISNAL v. Ministry of Employment and Ministry of Foreign Affairs, Italian Yearbook of International Law, 1978-79, p. 184); (v) a declaration of war and treaty provisions relating to compensation for war damage ( Lazio Regional Administrative Court (I), 28 January 1985, no. 106, Pestalozza v. the Treasury, Trib. Amm. Reg. [ Regional Administrative Court Review ], 1985, p. 38 1). 28. The full court of the Court of Cassation delivered a further judgment (no. 5044) on 11 March 2004. It concerned the jurisdiction of the Italian civil courts to hear claims for compensation for damage sustained by a person who had been captured by the German military in 1944 and deported to work for German industry. Germany had pleaded State immunity and the courts of first instance and appeal had held that they had no jurisdiction to make an order against it. The Court of Cassation carried out a very extensive examination of the international treaties on international crime, imprescriptibility, the international responsibility of States, immunity from jurisdiction and of the case-law of various international tribunals. In holding that the immunity plea failed and the Italian courts had to decide the claim, it stated inter alia : “ ... In a decision no. 8157 of 5 June 2002, this full court did indeed rule that acts performed by the State in the conduct of hostilities escape all scrutiny by the courts, as they are acts through which ‘ political ’ functions are carried out. The nature of these functions ‘ precludes any claim to a protected interest in respect thereto, so that there may or may not be a specific content to the acts through which they are performed ’. Pursuant to this principle, the Italian courts were held to have no jurisdiction to hear a claim against the Italian Prime Minister ’ s Office and the Italian Ministry of Defence for compensation for the destruction of a non-military objective during NATO air strikes against the Federal Republic of Yugoslavia or for the resultant civilian deaths. It is readily apparent, however, firstly, that the fact that the court cannot contest the manner in which the actions of the supreme head of the res publica are conducted does not prevent it from finding that a criminal offence has been committed or that there is related liability under the criminal or civil law (Articles 90 and 96 of the Constitution; section 15 of Constitutional Law no. 1 of 1953; and section 30 of Law no. 20 of 1962); secondly, by virtue of the principle of adaptation established by Article 10 § 1 of the Constitution, the ‘ generally recognised ’ principles of international law which govern the fundamental values constituted by the freedom and dignity of the human being and characterise the most serious assaults upon the integrity of those values as ‘ international crimes ’ have ‘ automatically ’ been integrated into our system and are entirely apt for use as a standard whereby the injustice of damage caused to others by intentional or negligent ‘ acts ’ may be gauged. It is evident, therefore, that the principles referred to in this decision cannot be taken into consideration in the instant case. ... 9.1 Granting immunity from jurisdiction to States who have been guilty of such wrongdoing is in manifest contradiction with the aforementioned normative rules because it constitutes an obstacle to the defence of values whose protection, like these norms and principles, must on the contrary be considered essential for the entire international community, even to the point of justifying forms of mandatory response in the most serious cases. Nor is there any doubt that the antinomy must be resolved by giving priority to the highest ranking norms, as the judges in the minority (eight to nine) stated in their dissenting opinion appended to the judgment in Al-Adsani [ v. the United Kingdom [GC], no. 3 5763/97, ECHR 2001-XI], by precluding in such cases any claim by the State to immunity from suit in the foreign courts.” 29. In 1993 the Italian government decided to send a military expeditionary force to Somalia to perform peacekeeping operations. After the expeditionary force had returned to Italy, it was discovered that some of its members had engaged in the torture of Somali prisoners. Two members of the expedition were charged and given prison sentences. They were also ordered to pay compensation to the civil party. In judgment no. 28154 of 7 March 2002, the text of which was deposited with the registry on 10 July 2002, the Rome Civil Court ordered another Italian serviceman and the Ministry of Defence to make reparation for the damage sustained by the relatives of a civilian whom the serviceman had killed unlawfully. III. OTHER RELEVANT PROVISIONS 30. The applicants relied in the domestic courts on the Protocol Additional of 8 June 1977 to the Geneva Conventions of 12 August 1949, relating to the Protection of Victims of International Armed Conflicts (Protocol I). The Protocol, which Italy ratified through Law no. 672 of 11 December 1985, contains, inter alia, the following provisions: Article 35 – Basic rules “ 1. In any armed conflict, the right of the Parties to the conflict to choose methods or means of warfare is not unlimited. 2. It is prohibited to employ weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering. 3. It is prohibited to employ methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment. ... ” Article 48 – Basic rule “ In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives. ” Article 49 – Definition of attacks and scope of application “ 1. ’ Attacks ’ means acts of violence against the adversary, whether in offence or in defence. 2. The provisions of this Protocol with respect to attacks apply to all attacks in whatever territory conducted, including the national territory belonging to a Party to the conflict but under the control of an adverse Party. 3. The provisions of this section apply to any land, air or sea warfare which may affect the civilian population, individual civilians or civilian objects on land. They further apply to all attacks from the sea or from the air against objectives on land but do not otherwise affect the rules of international law applicable in armed conflict at sea or in the air. 4. The provisions of this section are additional to the rules concerning humanitarian protection contained in the Fourth Convention, particularly in Part II thereof, and in other international agreements binding upon the High Contracting Parties, as well as to other rules of international law relating to the protection of civilians and civilian objects on land, at sea or in the air against the effects of hostilities. ” Article 51 – Protection of the civilian population “ 1. The civilian population and individual civilians shall enjoy general protection against dangers arising from military operations. To give effect to this protection, the following rules, which are additional to other applicable rules of international law, shall be observed in all circumstances. 2. The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited. 3. Civilians shall enjoy the protection afforded by this section, unless and for such time as they take a direct part in hostilities. 4. Indiscriminate attacks are prohibited. Indiscriminate attacks are: (a) those which are not directed at a specific military objective; (b) those which employ a method or means of combat which cannot be directed at a specific military objective; or (c) those which employ a method or means of combat the effects of which cannot be limited as required by this Protocol; and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction. 5. Among others, the following types of attacks are to be considered as indiscriminate: (a) an attack by bombardment by any methods or means which treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilians or civilian objects; and (b) an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated. 6. Attacks against the civilian population or civilians by way of reprisals are prohibited. 7. The presence or movements of the civilian population or individual civilians shall not be used to render certain points or areas immune from military operations, in particular in attempts to shield military objectives from attacks or to shield, favour or impede military operations. The Parties to the conflict shall not direct the movement of the civilian population or individual civilians in order to attempt to shield military objectives from attacks or to shield military operations. 8. Any violation of these prohibitions shall not release the Parties to the conflict from their legal obligations with respect to the civilian population and civilians, including the obligation to take the precautionary measures provided for in Article 57. ... ” Article 52 – General Protection of civilian objects “ 1. Civilian objects shall not be the object of attack or of reprisals. Civilian objects are all objects which are not military objectives as defined in paragraph 2. 2. Attacks shall be limited strictly to military objectives. In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage. 3. In case of doubt whether an object which is normally dedicated to civilian purposes, such as a place of worship, a house or other dwelling or a school, is being used to make an effective contribution to military action, it shall be presumed not to be so used. ... ” Article 57 – Precautions in attack “ 1. In the conduct of military operations, constant care shall be taken to spare the civilian population, civilians and civilian objects. 2. With respect to attacks, the following precautions shall be taken: (a) those who plan or decide upon an attack shall: (i) do everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects and are not subject to special protection but are military objectives within the meaning of paragraph 2 of Article 52 and that it is not prohibited by the provisions of this Protocol to attack them; (ii) take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental loss or civilian life, injury to civilians and damage to civilian objects; (iii) refrain from deciding to launch any attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated; (b) an attack shall be cancelled or suspended if it becomes apparent that the objective is not a military one or is subject to special protection or that the attack may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated; (c) effective advance warning shall be given of attacks which may affect the civilian population, unless circumstances do not permit. 3. When a choice is possible between several military objectives for obtaining a similar military advantage, the objective to be selected shall be that the attack on which may be expected to cause the least danger to civilian lives and to civilian objects. 4. In the conduct of military operations at sea or in the air, each Party to the conflict shall, in conformity with its rights and duties under the rules of international law applicable in armed conflict, take all reasonable precautions to avoid losses of civilian lives and damage to civilian objects. 5. No provision of this Article may be construed as authorizing any attacks against the civilian population, civilians or civilian objects. ... ” Article 91 – Responsibility “ A Party to the conflict which violates the provisions of the Conventions or of this Protocol shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces. ” 31. The applicants also relied in the domestic courts on paragraph 5 of Article VIII of the London Convention of 19 June 1951 between the Parties to the North Atlantic Treaty regarding the Status of their Forces [1], which Italy ratified through Law no. 1335 of 1955. Article I defines certain terms as follows: “ ... (d) ’ sending State ’ means the Contracting Party to which the force belongs; (e) ’ receiving State ’ means the Contracting Party in the territory of which the force or civilian component is located, whether it be stationed there or passing in transit; ... ” Article VIII provides, inter alia : “ ... 5. Claims (other than contractual claims and those to which paragraphs 6 or 7 of this Article apply) arising out of acts or omissions of members of a force or civilian component done in the performance of official duty, or out of any other act, omission or occurrence for which a force or civilian component is legally responsible, and causing damage in the territory of the receiving State to third parties, other than any of the Contracting Parties, shall be dealt with by the receiving State in accordance with the following provisions: (a) Claims shall be filed, considered and settled or adjudicated in accordance with the laws and regulations of the receiving State with respect to claims arising from the activities of its own armed forces. (b) The receiving State may settle any such claims, and payment of the amount agreed upon or determinated by adjudication shall be made by the receiving State in its currency. (c) Such payment, whether made pursuant to a settlement or to adjudication of the case by a competent tribunal of the receiving State, or the final adjudication by such a tribunal denying payment, shall be binding and conclusive upon the Contracting Parties. (d) Every claim paid by the receiving State shall be communicated to the sending States concerned together with full particulars and a proposed distribution in conformity with sub-paragraphs ( e ) (i), (ii) and (iii) below. In default of a reply within two months, the proposed distribution shall be regarded as accepted. (e) The cost incurred in satisfying claims pursuant to the preceding sub-paragraphs and paragraph 2 of this Article shall be distributed between the Contracting Parties, as follows: (i) Where one sending State alone is responsible, the amount awarded or adjudged shall be distributed in the proportion of 25 per cent chargeable to the receiving State and 75 per cent chargeable to the sending State. (ii) Where more than one State is responsible for the damage, the amount awarded or adjudged shall be distributed equally among them: however, if the receiving State is not one of the States responsible, its contribution shall be half that of each of the sending States. (iii) Where the damage was caused by the armed services of the Contracting Parties and it is not possible to attribute it specifically to one or more of those armed services, the amount awarded or adjudged shall be distributed equally among the Contracting Parties concerned: however, if the receiving State is not one of the States by whose armed services the damage was caused, its contribution shall be half that of each of the sending States concerned. (iv) Every half-year, a statement of the sums paid by the receiving State in the course of the half-yearly period in respect of every case regarding which the proposed distribution on a percentage basis has been accepted, shall be sent to the sending States concerned, together with a request for reimbursement. Such reimbursement shall be made within the shortest possible time, in the currency of the receiving State. (f) In cases where the application of the provisions of sub-paragraphs ( b ) and ( e ) of this paragraph would cause a Contracting Party serious hardship, it may request the North Atlantic Council to arrange a settlement of a different nature. (g) A member of a force or civilian component shall not be subject to any proceedings for the enforcement of any judgment given against him in the receiving State in a matter arising from the performance of his official duties. (h) Except in so far as sub-paragraph ( e ) of this paragraph applies to claims covered by paragraph 2 of this Article, the provisions of this paragraph shall not apply to any claim arising out of or in connexion with the navigation or operation of a ship or the loading, carriage, or discharge of a cargo, other than claims for death or personal injury to which paragraph 4 of this Article does not apply. 6. Claims against members of a force or civilian component arising out of tortious acts or omissions in the receiving State not done in the performance of official duty shall be dealt with in the following manner: (a) The authorities of the receiving State shall consider the claim and assess compensation to the claimant in a fair and just manner, taking into account all the circumstances of the case, including the conduct of the injured person, and shall prepare a report on the matter. (b) The report shall be delivered to the authorities of the sending State, who shall then decide without delay whether they will offer an ex gratia payment, and if so, of what amount. (c) If an offer of ex gratia payment is made, and accepted by the claimant in full satisfaction of his claim, the authorities of the sending State shall make the payment themselves and inform the authorities of the receiving State of their decision and of the sum paid. (d) Nothing in this paragraph shall affect the jurisdiction of the courts of the receiving State to entertain an action against a member of a force or of a civilian component unless and until there has been payment in full satisfaction of the claim. 7. Claims arising out of the unauthorized use of any vehicle of the armed services of a sending State shall be dealt with in accordance with paragraph 6 of this Article, except in so far as the force or civilian component is legally responsible. 8. If a dispute arises as to whether a tortious act or omission of a member of a force or civilian component was done in the performance of official duty or as to whether the use of any vehicle of the armed services of a sending State was unauthorized, the question shall be submitted to an arbitrator appointed in accordance with paragraph 2 ( b ) of this Article, whose decision on this point shall be final and conclusive. 9. The sending State shall not claim immunity from the jurisdiction of the courts of the receiving State for members of a force or civilian component in respect of the civil jurisdiction of the courts of the receiving State except to the extent provided in paragraph 5 ( g ) of this Article. 10. The authorities of the sending State and of the receiving State shall co-operate in the procurement of evidence for a fair hearing and disposal of claims in regard to which the Contracting Parties are concerned. ...” THE LAW I. ADMISSIBILITY OF THE APPLICATION A. Objection of failure to exhaust domestic remedies 32. The respondent Government pointed out that in the six months following the Court of Cassation ’ s judgment, which dealt with the question of jurisdiction only in respect of the Italian State, not in respect of NATO or AFSOUTH, the applicants had not resumed the proceedings against NATO. In their submission, this reflected a lack of interest on the applicants ’ part and constituted, albeit indirectly, a failure to exhaust the domestic remedies available to them under Italian law. The respondent Government added at the hearing that the applicants ’ claim was based on provisions which, while of relevance to instituting criminal proceedings, could not validly be relied upon in the civil courts and they noted that the applicants had been unable to produce any example of a case in which a claim such as theirs had been successfully pleaded. 33. The applicants said that they had made a joint and several claim for reparation from the Italian State and NATO. However, after NATO claimed immunity in respect of its headquarters, they had withdrawn their claim against it with its consent. The action against NATO had therefore been finally extinguished. This had not, however, affected the action against the Italian State. The applicants pointed out that the respondent Government ’ s argument was illogical in that it required the applicants to pursue proceedings in the national courts when, according to the respondent Government ’ s own case, they had no right they could validly assert there. 34. The Court notes that in Banković and Others, cited above, which was based on the same facts as the present application save that the applicants in that case did not bring an action in the Italian courts, the Italian Government pleaded a failure to exhaust domestic remedies and actually cited the Markovic case as proof of the existence of a remedy. The applicants in the instant case made use of the remedy and pursued the proceedings which, in their view, had the greatest prospect of success as far as they could after NATO claimed immunity from the jurisdiction of the national courts. 35. 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 capable of providing redress in respect of the applicant ’ s complaints and offered reasonable prospects of success ( see Sejdovic v. Italy [GC], no. 56581/00, § 46, ECHR 2006-II ). The respondent Government have not provided any concrete example of a civil action being successfully brought against NATO. The Court does not, therefore, find convincing their argument that resuming the proceedings against NATO would have offered better prospects of success than the proceedings against the Italian State. 36. In these circumstances, the application cannot be dismissed for failure to exhaust domestic remedies within the meaning of Article 35 § 1 of the Convention. B. Whether the applicants came within the “jurisdiction” of the respondent State within the meaning of Article 1 of the Convention 1. The respondent Government ’ s submissions 37. The respondent Government submitted that the application was inadmissible as it was incompatible with the provisions of the Convention. With reference to the Article 6 complaint, they invited the Court to adopt the reasoning it had applied in Banković and Others when declaring the complaints concerning the essential rights guaranteed by the Convention inadmissible ratione loci. 38. The reference to Article 1 in the questions that had been put to the parties by the Court and the connection that undoubtedly existed with the Article 6 issue indicated that the Court considered the relevant question to be whether a right of access to the courts to assert a Convention right as opposed to an ordinary civil right existed in the present case. A person who was not within the national jurisdiction had no right of access to a remedy that would enable him or her to claim reparation for loss from the authorities of the State concerned. If a State had no liability for acts committed outside its territory, it could hardly be criticised for declining to accept an application complaining of the consequences of such acts. The respondent Government therefore submitted that, even though – in contrast to the applicants in Banković and Others – the applicants in the present case had brought themselves within the ambit of the State ’ s jurisdiction by lodging a claim with the authorities for reparation for their losses, their application, like that in Banković and Others, had to be considered as a whole and all the complaints, including those under Article 6, declared inadmissible. 39. The respondent Government further noted that an analysis of NATO ’ s decision-making system did not reveal any participation by Italy in the choice of the various targets and that all the military operations had been carried out in compliance with the rules of international humanitarian law. In those circumstances, it was very hard to establish any joint liability on the part of Italy. Accordingly, there was no jurisdictional link between the applicants and the Italian State. 40. In the respondent Government ’ s submission, it would be absurd in a case in which no obligation to protect a substantive right arose to hold that there was an obligation to protect the corresponding procedural right, that is to say, to afford a means of asserting that same substantive right in the national courts. 41. The respondent Government also raised the same objections as in Banković and Others with regard to the individual responsibility of States for acts committed by an international organisation of which they were members, observing that it would be illogical to hold the State – which was not responsible for the acts of international organisations of which it was a member – accountable under the Convention for not taking domestic measures to remedy the consequences of those acts. They submitted that the application should therefore be declared inadmissible as being incompatible ratione materiae with the provisions of the Convention. 2. The applicants ’ submissions 42. The applicants referred to the respondent Government ’ s objection in Banković and Others of a failure to exhaust domestic remedies. They submitted that it amounted to an acknowledgement, at least as regards the domestic legal order, that they were within the jurisdiction of the national courts. They added that Assistant Principal State Counsel at the Court of Cassation shared that view as, in his written submissions, he had argued that the lack of jurisdiction defence raised by the Prime Minister ’ s Office should be dismissed. 43. The applicants went on to say that in Banković and Others there had been no prior referral to the national courts. They argued that that difference sufficed to show that they were indisputably within the jurisdiction of the respondent State within the meaning of Article 1 of the Convention and consequently enjoyed the protection of the Convention. In their submission, the Court of Cassation ’ s decision was irreconcilable with Article 1 of the Convention in that it precluded any practical application of the provisions of the Convention in domestic law. 3. The intervening parties ’ submissions (a) The Government of Serbia and Montenegro 44. The Government of Serbia and Montenegro submitted that the complaint under Article 6 of the Convention was not incompatible ratione loci with the provisions of the Convention. They noted that the acts had been committed either on the territory of Serbia and Montenegro or on the territory of Italy, while the consequences had been suffered solely in Serbia and Montenegro. In their submission, the first point the Court had to take into consideration was that the aircraft which had bombed the RTS building had taken off in Italy, where the decision to carry out the raid had been taken in coordination with NATO headquarters in Brussels. The acts concerned also included all the physical and logistical preparation of the operation, which had resulted in the deaths of sixteen people. At the time, Italy and the other NATO member States had total control over the use of weapons in Serbian and Montenegrin airspace, but ultimately it was Italy which had had the aerial capacity to bomb the RTS building. These factors clearly showed the link between the events in issue and Italy, even though the consequences were suffered only in Serbia. In the Government of Serbia and Montenegro ’ s submission, the present case was, therefore, sufficiently distinguishable from Banković and Others (cited above) as to warrant a different conclusion and one that would avoid a denial of justice. They concluded from the above that the act complained of in the present case was not exclusively extraterritorial. (b) The Government of the United Kingdom 45. The British Government noted that in Banković and Others the Court had decided unanimously that all of the provisions of the Convention had to be read in the light of Article 1 of the Convention, which defined the scope of their application. The effect of Article 1, as the Court had decided in Banković and Others and in its earlier decision in the present case (see paragraph 4 above), was that the rights and freedoms guaranteed by the Convention were not applicable to an incident such as an attack – carried out in the course of an armed conflict – on a building outside the territory of the Contracting States concerned, because the persons affected by that attack were not within the jurisdiction of the Contracting States in question. 46. Once it had been established that the Convention was not applicable, it followed that those claiming in respect of that incident possessed no rights under the Convention. Accordingly, no question of a duty on the States Parties to the Convention to provide a remedy in the national courts for the violation of such rights could arise. 47. It was, therefore, entirely logical that the Grand Chamber in Banković and Others should have found the claim to be inadmissible with regard to Article 13 once it had found that the application did not fall within the scope of Articles 2 and 10. Referring to the case of Z and Others v. the United Kingdom ([GC], no. 29392/95, § 103, ECHR 2001-V), the British Government submitted that to the extent that Article 6, as opposed to Article 13, had a distinct role regarding the enforcement of rights under the other provisions of the Convention, the answer had to be the same under that Article. 48. It could make no difference that the individual applicant had subsequently entered the territory of the Contracting State and sought to bring proceedings there. While such a person could come within the jurisdiction of that Contracting State when he or she entered its territory, that fact could not retrospectively render the Convention applicable to a past event to which the Convention was not applicable at the time. Nor did it alter the fact that, at the time of the incident, that person was not within the jurisdiction of the State and accordingly it had no duty under Article 1 to guarantee to them the rights and freedoms set out in the Convention. Neither Article 13 nor Article 6 required a Contracting State to provide a remedy for violation of other provisions of the Convention if those other provisions were not applicable to the event in question because of their scope of application under Article 1. 4. The Court ’ s assessment 49. It will be recalled that in Banković and Others, the Court stated: “As to the ‘ ordinary meaning ’ of the relevant term in Article 1 of the Convention, the Court is satisfied that, from the standpoint of public international law, the jurisdictional competence of a State is primarily territorial. While international law does not exclude a State ’ s exercise of jurisdiction extraterritorially, the suggested bases of such jurisdiction (including nationality, flag, diplomatic and consular relations, effect, protection, passive personality and universality) are, as a general rule, defined and limited by the sovereign territorial rights of the other relevant States. ” 50. It did not find any “jurisdictional link” for the purposes of Article 1 of the Convention between the victims of the act complained of and the respondent States and held that the action concerned did not engage the latter ’ s responsibility under the Convention. In the light of that finding, it considered it unnecessary to examine the remaining issues of admissibility that had been raised by the parties. 51. As for the other complaints which the applicants in the present case have made in their application (see paragraph 4 above), the Court has declared them inadmissible on the grounds that the specific circumstances of the case, notably the fact that the applicants had sought a remedy in the Italian courts, did not warrant a departure from the Banković and Others case-law. 52. However, as regards the complaint under Article 6 taken in conjunction with Article 1 of the Convention, the Court notes that in Banković and Others the respondent Government stressed that it was possible for proceedings to be brought in the Italian domestic courts, thus implying that the existence of a jurisdictional link could not be excluded for future complaints made on a different basis. The applicants had in fact already begun proceedings in the domestic courts. 53. The Court does not share the view of the Italian and British Governments that the subsequent institution of proceedings at the national level does not give rise to any obligation on the part of the State towards the person bringing the proceedings. Everything depends on the rights which may be claimed under the law of the State concerned. If the domestic law recognises a right to bring an action and if the right claimed is one which prima facie possesses the characteristics required by Article 6 of the Convention, the Court sees no reason why such domestic proceedings should not be subjected to the same level of scrutiny as any other proceedings brought at the national level. 54. Even though the extraterritorial nature of the events alleged to have been at the origin of an action may have an effect on the applicability of Article 6 and the final outcome of the proceedings, it cannot under any circumstances affect the jurisdiction ratione loci and ratione personae of the State concerned. If civil proceedings are brought in the domestic courts, the State is required by Article 1 of the Convention to secure in those proceedings respect for the rights protected by Article 6. The Court considers that, once a person brings a civil action in the courts or tribunals of a State, there indisputably exists, without prejudice to the outcome of the proceedings, a “jurisdictional link” for the purposes of Article 1. 55. The Court notes that the applicants in the instant case brought an action in the Italian civil courts. Consequently, it finds that a “jurisdictional link” existed between them and the Italian State. 56. In these circumstances, the Government ’ s preliminary objections based on the lack of a jurisdictional link must be dismissed. C. Whether Article 6 was applicable to the proceedings 1. The respondent Government ’ s submissions 57. The respondent Government submitted that Articles 6 and 13 did not apply to political acts. Relying on the judgment in Z and Others v. the United Kingdom (cited above), they submitted that the concept of political act could not be considered a “procedural bar” to the domestic courts ’ power to determine a substantive right, but a limitation on that right. 58. They submitted that there was no civil right in the present case that could be said, at least on arguable grounds, to be recognised under domestic law. 59. There were three reasons for this: firstly, no right to reparation for damage caused by an allegedly illegal act of war existed either under the rules of international law applicable in the instant case or under Italian domestic law; secondly, the impugned act was attributable to NATO, not the Italian State; thirdly and lastly, the right the applicants sought to assert was not recognised under domestic law because the political-acts doctrine precluded in limine any action against the State. 2. The applicants ’ submissions 60. The applicants pointed out that the question whether their claim was well-founded or ill-founded under the domestic legal system should have been determined by a court. However, the Court of Cassation ’ s decision had prevented them from asserting in the Italian courts a right recognised by Article 2043 of the Civil Code. Moreover, it was at variance with that court ’ s existing case-law and subsequent decisions. In the applicants ’ submission, the Court of Cassation ’ s judgment no. 5044 of 11 March 2004 (see paragraph 28 above) showed, firstly, that immunity from jurisdiction could never extend to the criminal law so that civil liability for criminal acts could not, therefore, ever be excluded and, secondly, that rules of international origin protecting fundamental human rights were an integral part of the Italian system and could therefore be relied on in support of a claim in respect of damage caused by criminal acts or by negligence. It followed that anyone alleging a violation of a right guaranteed by such rules was always entitled to the protection of the courts. 61. The applicants added that the respondent Government ’ s conduct was ambiguous to say the least: in Banković and Others they had pleaded a failure to exhaust domestic remedies and referred to the applicants ’ own domestic-court proceedings then pending before the Court of Cassation. However, the respondent Government now sought to argue that the applicants had no right which they could assert in the national courts, although they seemed to have taken the opposite view when the proceedings were still pending. The applicants contended that it had therefore been reasonable for them to consider that they possessed an at least arguable right when they commenced the proceedings in the domestic courts, since even the respondent Government had been sufficiently convinced that they had as to rely on that argument in the international proceedings. 3. The intervening parties ’ submissions (a) The Government of Serbia and Montenegro 62. The Government of Serbia and Montenegro pointed out that since the events in question Serbia and Montenegro had acceded to the Convention and that its citizens had to be permitted to assert their rights not only in the courts of their State of origin but also in the courts of other States Parties to the Convention in all cases in which there was a basis in law for so doing. (b) The Government of the United Kingdom 63. The British Government argued that Article 6 § 1 did not convert the Convention enforcement bodies into an appellate tribunal determining appeals from national courts as to the content of the law applicable in those courts, irrespective of whether that law was wholly national in origin or was derived from public international law. In their submission, the general rules of liability that released the State from liability for reasons of public policy did not fall within the scope of Article 6 § 1 at all. 4. The Court ’ s assessment 64. The Court considers that the objection that the application is incompatible ratione materiae with the provisions of the Convention is very closely linked to the substance of the applicants ’ complaint under Article 6 of the Convention. It therefore considers it appropriate to join this objection to the merits (see, among other authorities, Airey v. Ireland, 9 October 1979, § 19, Series A no. 32; and Ferrazzini v. Italy [GC], no. 44759/98, § 18, ECHR 2001 ‑ VII). 65. The Court notes, further, that the application raises issues of fact and law which require an examination of the merits. It accordingly concludes that the application is not manifestly ill-founded. Having also established that no other obstacle to its admissibility exists, it declares the remainder of the application admissible ( see Vo v. France [GC], no. 53924/00, § 45, ECHR 2004 ‑ VIII). In accordance with its decision to apply Article 29 § 3 of the Convention (see paragraph 6 above), the Court will immediately consider the merits of the applicants ’ complaint ( see Kleyn and Others v. the Netherlands [GC], nos. 39343/98, 39651/98, 43147/98 and 46664/99, § 162, ECHR 2003 ‑ VI). II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 1 66. Relying on Article 6 of the Convention taken in conjunction with Article 1, the applicants complained of the Court of Cassation ’ s ruling that the Italian courts had no jurisdiction. The relevant parts of Article 6 read as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” Article 1 provides: “The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention.” A. The parties ’ submissions 1. The applicants ’ submissions 67. The applicants pointed out that, in his written submissions, Assistant Principal State Counsel at the Court of Cassation had stated that the issues that had been raised concerned the merits of the case, not the question of jurisdiction. Further, under domestic law a civil action for compensation for damage caused by a criminal offence lay irrespective of whether the offence had been made out at a criminal trial or the offender convicted by a criminal court. Consequently, they argued that they had been fully entitled to seek reparation for the damage they had sustained without being required first to bring criminal proceedings to establish individual criminal liability, which was an entirely independent form of action. 68. In their submission, their action in the Rome District Court satisfied all the conditions required by Article 6 of the Convention for it to qualify as a claim for the determination of a civil right. Since they had brought an ordinary action for the reparation of non-pecuniary damage caused by an illegal act, there could be no doubt that they had asserted a right protected under domestic law which the courts had full jurisdiction to determine if the defendant resided in Italy. Moreover, even if the question was examined from the territorial perspective, that is to say, by reference to the locus commissi delicti, Article 6 of the Italian Criminal Code allowed proceedings to be brought even if only part of the impugned act was committed on Italian territory. The bombing could not have taken place without the agreement of the Italian political authorities and the military facilities placed at NATO ’ s disposal by Italy, as the raids had been carried out from Italian territory. Furthermore, Article 185 of the Italian Criminal Code required reparation for criminal offences to be made in accordance with the civil law. It followed that the nature of the right the applicants had sought to assert was indeed civil and that it was only because that conclusion was inescapable that the Court of Cassation had been forced to rule that the Italian courts had no jurisdiction, thereby circumventing Assistant Principal State Counsel ’ s conclusions. 69. The applicants maintained that the Court of Cassation ’ s case-law both before and after its judgment in the present case showed that a national court could only be deemed to have no jurisdiction under Italian law if there were no rules or principles in the domestic legal order theoretically capable of protecting the personal right it was sought to assert (see the full Court of Cassation ’ s judgments nos. 3316 of 31 May 1985 and 5740 of 24 October 1988). In the applicants ’ case, however, the Court of Cassation had only been able to find in favour of the respondent Government and so deny the applicants access to a court by disregarding the provisions of domestic and international law on which the applicants had based their claim for compensation for damage caused by the acts of an Italian public authority that had involved not only the bombing of the RTS building, but also all the preparatory acts performed in Italy with the permission and assistance of the Italian authorities (see Article 2043 of the Civil Code, Article 6 of the Criminal Code and Article 174 of the Wartime Criminal Military Code). Its decision had deprived the European Convention on Human Rights of all effect in domestic law and was at variance with the Court ’ s case-law requiring the States Parties to the Convention to secure effective respect for the rights protected by the Convention. Further, the Court of Cassation had characterised the State ’ s conduct at the origin of the claim as an “act of government”. It had deduced from this that the act in question was not subject to scrutiny by the courts and had gone on to assert that this principle took precedence over the European Convention on Human Rights, so that the applicants were unable to rely upon it to secure a right of access to the courts. 70. In the applicants ’ submission, that proposition denied the primacy of the Convention, a primacy that was also recognised in domestic law through Article 117 of the Constitution, which provided: “Legislative power is exercised by the State and the regions in compliance with the Constitution and the links arising out of the organisation of the Community and other international obligations.” Furthermore, the bombing of the RTS headquarters could not be classified in domestic law as an act of government capable of precluding judicial review. Under Italian law, an act of government excluded the jurisdiction of the administrative courts, and only of the administrative courts, as they alone took acts of government directly into consideration in their decisions or had power to quash them. Although Article 31 of Royal Decree no. 1054 of 26 June 1924 had introduced into the system a limitation on judicial review, it did not affect personal rights, such as the right to compensation for damage, which could be asserted in the ordinary courts. In any event, even if the jurisdictional limitation could still be said to exist in the Italian system after the entry into force of the Constitution, it could only cover the act of government by which Italian participation in the military operations in the former FRY had been decided on, not each isolated act or military operation such as the operation at the origin of the instant case. In reality, a bombing mission of that kind could not be characterised as an act of government that escaped the scrutiny of the courts. In a similar case, the jurisdiction of the Italian courts to try a case concerning criminal acts committed by Italian soldiers during the international military mission to Somalia was held not to have been ousted. Thus, in the applicants ’ submission, neither the domestic law nor the Convention justified the exclusion of a right of access to the courts to assert a right to compensation for damage caused by the acts of a public authority, even when those acts stemmed from a political decision. It was necessary to distinguish between the merits of the claim before the courts and the issue of jurisdiction. As to the general issue of the effects of the Convention in domestic law, the applicants were at pains to point out the gravity of some of the statements which the Court of Cassation had made in its judgment denying the Italian courts all jurisdiction. They noted that the judgment was contrary to the Court of Cassation ’ s own decisions in earlier cases (see, inter alia, the judgments of Polo Castro (1988), Mediano (1993), and Galeotti (1998)) and could, if confirmed, have serious implications extending beyond their own case, in view of the full Court of Cassation ’ s role as the highest judicial authority. They added, however, that the Court of Cassation had later abandoned the line it had taken in their case, thus further highlighting the injustice they had suffered. 2. The respondent Government ’ s submissions 71. The respondent Government said that Article 6 was not applicable. The first reason for this was that the right claimed by the applicants was not one that could validly be said to be recognised in domestic law. 72. They noted that the applicants had relied on Article 2043 of the Civil Code, Articles 6 and 185 of the Criminal Code and Article 174 of the Wartime Military Criminal Code. As regards Article 2043, the State ’ s liability in tort could only be engaged by intentional or negligent acts for which the State was accountable under various provisions of domestic law. However, the provisions that had been relied upon did not afford any right to reparation for losses caused by an allegedly illegal act of war. 73. The effect of Article 6 of the Criminal Code was to establish and determine the scope of the State ’ s territorial jurisdiction in criminal cases. In the respondent Government ’ s submission, Italy could not be accused of violating the right of access to a court merely because its domestic law provided greater access to a court than the laws of other States in that Article 6 § 2 of the Criminal Code afforded a remedy that enabled claims for compensation to be made for damage resulting from acts committed overseas. As to the combined application of Article 174 of the Wartime Military Criminal Code and Article 185 of the Criminal Code, it enabled the State ’ s responsibility to be engaged for acts perpetrated by members of its armed forces. 74. All of the provisions on which the applicants had relied concerned the commission of an individual offence whereas their complaint in the proceedings referred to damage caused by NATO air forces which could not be said to have engaged the individual criminal liability of members of the Italian armed forces. The respondent Government noted in passing that the case-law cited by the applicants was totally irrelevant as it concerned either cases relating to the individual liability of a member of the armed forces or cases in which the State ’ s civil liability had not been established. 75. Nor was any legal basis for the right to reparation claimed by the applicants to be found in the rules applicable to international customary law. In the domestic courts, the applicants had referred to Articles 35, 48, 51 and 91 of the Protocol Additional to the Geneva Conventions (Protocol I). These provisions restricted the right of parties to a conflict to choose the methods or means by which they would carry on the war by making it illegal for operations to be directed against non-military objectives. The intention was to create rights and obligations solely at the inter-State level and not to confer rights on individuals, even in cases involving an obligation to make reparation. The provisions did not afford any personal right to obtain reparation for damage sustained in war in the courts of the State responsible, or impose on the States Parties an obligation to change their domestic law to provide such a right. 76. Although perhaps desirable, no right to reparation for damage resulting from an allegedly illegal act of war currently existed under Italian law and Italy was not bound by any international obligation to introduce such a right into its domestic legal system. Reaching the opposite conclusion would entail interpreting Article 6 in such a way as to create a substantive right for which there was no basis in the law of the country concerned. Article 6 did not, however, create rights. Further, finding that Article 6 of the Convention afforded a right of access to a court to bring an action against the State for unlawful acts even in cases where the breach of the civil right resulted from acts of international policy, including peacemaking and peacekeeping operations, would undermine the efforts being made to encourage governments to cooperate in international operations of that kind. 77. Since the impugned act was extraterritorial and had been committed by an international organisation of which Italy was a member, it would be extremely difficult to establish any joint liability on the part of Italy. The prospects of successfully instituting proceedings in Italy to challenge the lawfulness of the actions of the NATO forces in Kosovo were remote and poor. Indeed, the applicants had not furnished a single example of a case in which such a claim had succeeded. Referring to the judgment in Prince Hans-Adam II of Liechtenstein v. Germany ([GC], no. 42527/98, ECHR 2001 ‑ VIII), the respondent Government submitted, therefore, that it was not possible to assert that a sufficient link existed between the outcome of the proceedings and the recognition of the rights claimed by the applicants. 78. Lastly, the dispute was not of a type that could be brought before the courts. The Court of Cassation had found that the fundamental issue underlying the applicants ’ complaint was whether the impugned act was illegal and engaged the responsibility of the Italian State. In deciding that it was a “political act” that escaped the scrutiny of the courts, the Court of Cassation had not set a limit on the right of access to a court but had defined the scope of the substantive right claimed by the applicants. In the respondent Government ’ s submission, the political-act doctrine did not create a procedural bar that removed or restricted the right to refer complaints to the courts, it precluded an action against the State in limine. 79. As to the merits of the complaint, and in the event of the Court finding Article 6 of the Convention applicable despite the above arguments, the respondent Government submitted that there had been no violation of that provision and that the restriction on the applicants ’ right of access to a court was both consistent with the rule of law and the principle of the separation of powers, and proportionate to the legitimate aim pursued. 80. In their view, the national courts ’ lack of jurisdiction had not resulted in an infringement of the right of access to a court guaranteed by Article 6 of the Convention. The right was not unlimited: it could be regulated by the State and the State enjoyed a margin of appreciation in respect thereof. In Italy, neither the State, nor the government, nor the public authorities enjoyed any general form of immunity from jurisdiction. The Court of Cassation ’ s ruling in the present case that the Italian courts had no jurisdiction did not constitute a restriction applicable to claims for compensation for loss from the State per se. It referred only to a very narrow category of act asserting “State authority” at the highest level. These were “political” acts which concerned the State as a unit in relation to which the judiciary could not be regarded as a “third party”. Legislation was a typical example of an “act of government” that could cause damage to individuals. Yet the Court had already stated that the Convention did not go so far as to require the States to provide machinery for challenging legislation. 81. Other acts asserted “State authority” at the highest level: these were acts of international policy and, through them, acts of war. The rule that acts implementing a State ’ s fundamental political decisions were legitimately excluded from the realm of judicial competence stemmed from the principle of the separation of powers and the need to avoid involving the judiciary – which by definition had no democratic legitimacy – in the task of identifying the objectives that served the general interest or of choosing the means used to achieve such objectives. In sum, the judiciary could not be involved, even after the event, in the task of deciding national policy. 82. In the respondent Government ’ s submission, there was thus a legitimate purpose to the limitation imposed on access to the courts when the impugned act had a political objective. As to the rule requiring proportionality between the means used and the aim pursued, the respondent Government pointed out that the exemption from jurisdiction did not violate the very essence of the individual ’ s right of access to a court because it did not prevent access to a whole range of civil actions or confer immunity on large groups of people, but applied only to a limited and very strictly defined category of civil actions against the State. Nor was there any doubt that the aim pursued by the political-act doctrine could be achieved only by ousting the jurisdiction of the courts. For all these reasons, there had been no violation of Article 6 of the Convention. B. The intervening parties ’ submissions 1. The Government of Serbia and Montenegro 83. The Government of Serbia and Montenegro observed that the principle requiring the reparation of damage was a fundamental notion dating back to the Roman-law principle of neminem laedere that had been recognised as a general principle by the international treaties of civilised nations. They said that the principle had been applied by the Court in Osman v. the United Kingdom (28 October 1998, Reports of Judgments and Decisions 1998 ‑ VIII) when it ruled that a State – which had granted itself immunity on public-policy grounds in an action in tort – had to provide other means to enable victims of damage sustained as a result of an act or omission of the State to obtain reparation. 84. The Government of Serbia and Montenegro added that the underlying explanation for Article 6 of the Convention was to be found in the principle of the rule of law enunciated in Article 3 of the Statute of the Council of Europe. They said that it would be difficult to envisage that principle being applied without access to a court and referred to the judgment in Fayed v. the United Kingdom (21 September 1994, § 65, Series A no. 294 ‑ B ), in which the Court stated: “ [I]t would not be consistent with the rule of law in a democratic society or with the basic principle underlying Article 6 § 1 – namely that civil claims must be capable of being submitted to a judge for adjudication – if, for example, a State could, without restraint or control by the Convention enforcement bodies, remove from the jurisdiction of the courts a whole range of civil claims or confer immunities from civil liability on large groups or categories of persons. ” 85. Lastly, they explained that in Serbia and Montenegro, neither the civil nor the constitutional courts could decline to decide an issue on the pretext that it concerned an act of government. The sole problem that could arise was whether rules existed under the domestic law which would enable the acts concerned to be reviewed. Adopting the act of government doctrine would considerably limit the aim pursued in applying the law, as regards both access and the effectiveness of remedies such as those guaranteed by the Convention. By its very nature, such a doctrine would justify acts relating to the implementation of foreign policy being removed from scrutiny on the grounds of “reasons of State”, with the result that human-rights protection would become impossible. In the Government of Serbia and Montenegro ’ s submission, the doctrine of the rule of law should prevail over that of reasons of State. 2. The Government of the United Kingdom 86. The British Government submitted that a rule of national law that an individual was not entitled to compensation, or its corollary that the State did not incur liability, for acts performed by the State in the conduct of foreign relations did not violate Article 6 § 1. 87. They noted that such a rule was common in the laws both of member States of the Council of Europe and elsewhere even though different legal systems formulated it in different ways (for example, as a rule that decisions in the conduct of foreign relations were not justiciable or that a general rule relating to liability did not extend to damage caused by acts of war or other actions taken by the State in the course of its international relations). 88. Whichever way it was formulated, such a rule was a limit on the scope of the substantive law of the State concerned, not a limit on the right of access to courts to enforce that law. In the British Government ’ s submission, the substantive position was very similar to that in Z and Others v. the United Kingdom (cited above). Like the limiting rule of English law which was in issue in Z and Others, the rule of national law that the State was not liable to compensate individuals for losses which they had suffered on account of the State ’ s decisions in the conduct of foreign relations limited the scope of the general rules of liability in their application to the State for reasons of public policy. The British Government submitted that to treat such a rule as contrary to Article 6 § 1 would be to do precisely what the Court had repeatedly said it could not do, namely to create, by way of interpretation of Article 6 § 1, a substantive right which had no basis in the law of the Contracting State concerned. 89. While the British Government were of the view that rules of the kind considered above did not fall within the scope of Article 6 § 1 at all, and if (contrary to that view) it were held that they did, they submitted that they should be regarded as reasonable and proportionate limitations on the scope of the rights conferred by Article 6 § 1 which were necessary in a democratic society. 90. The British Government had already noted that many systems of national law had a rule similar to that applied by the Italian courts in the present case. They added that such a rule served a clear public purpose in a democratic State in defining the nature of the separation of powers between courts and executive with regard to the conduct of foreign relations and military activity. 91. In the British Government ’ s view, such a rule could not be said to violate Article 6 § 1 of the Convention. C. The Court ’ s assessment 1. General principles 92. The right of access to a court in issue in the present case is derived from Article 6 and was established in Golder v. the United Kingdom (21 February 1975, §§ 28-36, Series A no. 18 ), in which the Court established, by reference to the principles of the rule of law and the avoidance of arbitrary power underlying much of the Convention, that the right of access to a court was an inherent aspect of the safeguards enshrined in Article 6. Thus, Article 6 § 1 secures to everyone the right to have a claim relating to his civil rights and obligations brought before a court. 93. The Court refers to its constant case-law to the effect that “Article 6 § 1 extends only to ‘ contestations ’ (disputes) over (civil) ‘ rights and obligations ’ which can be said, at least on arguable grounds, to be recognised under domestic law; it does not itself guarantee any particular content for (civil) ‘ rights and obligations ’ in the substantive law of the Contracting States” (see James and Others v. the United Kingdom, 21 February 1986, § 81, Series A no. 98; Lithgow and Others v. the United Kingdom, 8 July 1986, § 192, Series A no. 102; and The Holy Monasteries v. Greece, 9 December 1994, § 80, Series A no. 301-A). The Court may not create by way of interpretation of Article 6 § 1 a substantive right which has no legal basis in the State concerned ( see Roche v. the United Kingdom [GC], no. 32555/96, § § 116- 17, ECHR 2005 ‑ X). It will however apply to disputes of a “genuine and serious nature” concerning the actual existence of the right as well as to the scope or manner in which it is exercised (see Benthem v. the Netherlands, 23 October 1985, § 32, Series A no. 97, and Z and Others v. the United Kingdom, cited above, § 87). 94. The distinction between substantive limitations and procedural bars determines the applicability and, as the case may be, the scope of the guarantees under Article 6. The fact that the particular circumstances of, and complaints made in, a case may render it unnecessary to draw the distinction between substantive limitations and procedural bars (see, among other authorities, A. v. the United Kingdom, no. 35373/97, § 65, ECHR 2002 ‑ X) does not affect the scope of Article 6 of the Convention which can, in principle, have no application to substantive limitations on the right existing under domestic law. 95. In assessing therefore whether there is a civil “right” and in determining the substantive or procedural characterisation to be given to the impugned restriction, the starting point must be the provisions of the relevant domestic law and their interpretation by the domestic courts ( see Masson and Van Zon v. the Netherlands, 28 September 1995, § 49, Series A no. 327-A). Where, moreover, the superior national courts have analysed in a comprehensive and convincing manner the precise nature of the impugned restriction, on the basis of the relevant Convention case-law and principles drawn therefrom, this Court would need strong reasons to differ from the conclusion reached by those courts by substituting its own views for those of the national courts on a question of interpretation of domestic law (see Z and Others v. the United Kingdom, cited above, § 101) and by finding, contrary to their view, that there was arguably a right recognised by domestic law. 96. Finally, in carrying out this assessment, it is necessary to look beyond the appearances and the language used and to concentrate on the realities of the situation ( see Van Droogenbroeck v. Belgium, 24 June 1982, § 38, Series A no. 50). The Court must not be unduly influenced by, for example, the legislative techniques used (see Fayed, cited above, § 67) or by the labels put on the relevant restriction in domestic law: the oft-used word “immunity” can mean an “immunity from liability” (in principle, a substantive limitation) or an “immunity from suit” (suggestive of a procedural limitation) (see Roche, cited above, §§ 119- 21). 97. Nevertheless, it would not be consistent with the rule of law in a democratic society or with the basic principle underlying Article 6 § 1 – namely that civil claims must be capable of being submitted to a judge for adjudication – if, for example, a State could, without restraint or control by the Convention enforcement bodies, remove from the jurisdiction of the courts a whole range of civil claims or confer immunities from civil liability on large groups or categories of persons (see Fayed, cited above, § 65). 98. Article 6 § 1 may also be relied on by “anyone who considers that an interference with the exercise of one of his (civil) rights is unlawful and complains that he has not had the possibility of submitting that claim to a tribunal meeting the requirements of Article 6 § 1” (see Le Compte, Van Leuven and De Meyere v. Belgium, 23 June 1981, § 44, Series A no. 43). Where there is a serious and genuine dispute as to the lawfulness of such an interference, going either to the very existence or the scope of the asserted civil right, Article 6 § 1 entitles the individual “to have this question of domestic law determined by a tribunal” ( see Sporrong and Lönnroth v. Sweden, 23 September 1982, § 81, Series A no. 52; see also Tre Traktörer AB v. Sweden, 7 July 1989, § 40, Series A no. 159). 99. The right is not absolute, however. It may be subject to legitimate restrictions such as statutory limitation periods, security for costs orders, regulations concerning minors and persons of unsound mind (see Stubbings and Others v. the United Kingdom, 22 October 1996, §§ 51-52, Reports 1996-IV; Tolstoy Miloslavsky v. the United Kingdom, 13 July 1995, §§ 62 ‑ 67, Series A no. 316-B; and Golder, cited above, § 39). Where the individual ’ s access is limited either by operation of law or in fact, the Court will examine whether the limitation imposed impaired the essence of the right and, in particular, whether it pursued a legitimate aim and there was a reasonable relationship of proportionality between the means employed and the aim sought to be achieved ( see Ashingdane v. the United Kingdom, 28 May 1985, § 57, Series A no. 93). If the restriction is compatible with these principles, no violation of Article 6 will arise ( see Z and Others v. the United Kingdom, cited above, §§ 92-93). 2. Application of these principles in the instant case (a) Applicability of Article 6 of the Convention 100. In the instant case, the applicants brought an action in damages in tort against the State under Article 2043 of the Civil Code and also relied in their claim on Article 6 of the Criminal Code, Article 174 of the Wartime Military Criminal Code and on the provisions of the Protocol Additional to the Geneva Conventions (Protocol I) and of the London Convention of 1951 (see paragraphs 2 2 -2 5 and 30 - 31 above). They relied on various authorities although, as the respondent Government pointed out, none of them were exactly on all fours with the present case because they primarily concerned the individual liability of members of the armed forces. The respondent Government cited a decision concerning political acts. However, while it may have been of some relevance to the decision in the instant case, it was not sufficiently similar to qualify as a precedent. It was therefore on the facts of the applicants ’ own case that the domestic courts were called upon to decide for the first time whether such a situation came within Article 2043 of the Civil Code. 101. The Court therefore considers that there was from the start of the proceedings a genuine and serious dispute over the existence of the right to which the applicants claimed to be entitled under the civil law. The respondent Government ’ s argument that there was no arguable (civil) right for the purposes of Article 6 because of the Court of Cassation ’ s decision that, as an act of war, the impugned act was not amenable to judicial review, can be of relevance only to future allegations by other complainants. The Court of Cassation ’ s judgment did not make the applicants ’ complaints retrospectively unarguable ( see Z and Others v. the United Kingdom, cited above, § 89). In these circumstances, the Court finds that the applicants had, on at least arguable grounds, a claim under domestic law. 102. Accordingly, Article 6 is applicable to the applicants ’ action against the State. The Court therefore dismisses the respondent Government ’ s preliminary objection on this point. It must therefore examine whether the requirements of that provision were complied with in the relevant proceedings. (b) Compliance with Article 6 of the Convention 103. In the present case, the applicants alleged that the Court of Cassation ’ s ruling that the Italian courts had no jurisdiction had prevented them from gaining access to a court and securing a decision on the merits of their claim. 104. The applicants and the Government of Serbia and Montenegro considered that a right to reparation arose directly from the wording of the relevant Codes, whereas the other two Governments argued that such a right could not apply to acts of war, or to peacemaking or peacekeeping operations. The applicants submitted that their right to reparation derived from Article 2043 of the Civil Code, while also relying on Article 6 of the Criminal Code, Article 174 of the Wartime Military Criminal Code and the Protocol Additional to the Geneva Conventions (Protocol I). 105. First and foremost the Court would note that the applicants were not in practice prevented from bringing their complaints before the domestic courts. 106. The Court of Cassation considered the answer to be clear, which explains why it rejected this jurisdictional point in rather summary terms. It found as follows: the impugned act was an act of war; since such acts were a manifestation of political decisions, no court possessed the power to review the manner in which that political function was carried out; further, the legislation that gave effect to the instruments of international law on which the applicants relied did not expressly afford injured parties a right to claim reparation from the State for damage sustained as a result of a violation of the rules of international law. 107. The Court reiterates the fundamental principles established by its case-law on the interpretation and application of domestic law. While the Court ’ s duty, according to Article 19 of the Convention, is to ensure the observance of the engagements undertaken by the Contracting Parties to the Convention, 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. 108. Moreover, it is primarily for the national authorities, notably the courts, to interpret and apply domestic law. This also applies where domestic law refers to rules of general international law or international agreements. The Court ’ s role is confined to ascertaining whether the effects of such an interpretation are compatible with the Convention (see Waite and Kennedy v. Germany [GC], no. 26083/99, § 54, ECHR 1999-I; Streletz, Kessler and Krenz v. Germany [GC], nos. 34044/96, 35532/97 and 44801/98, § 49, ECHR 2001-II; and Prince Hans-Adam II of Liechtenstein, cited above, §§ 43-50). 109. Although it is not its role to express any view on the applicability of the Protocol Additional to the Geneva Conventions (Protocol I) or the London Convention, the Court notes that the Court of Cassation ’ s comments on the international conventions do not appear to contain any errors of interpretation. There are two reasons for this: firstly, the statement that Protocol I regulates relations between States is true; secondly, the applicants relied on paragraph 5 of Article VIII of the London Convention, which concerns acts “... causing damage in the territory of the receiving State to third parties ...” (see paragraph 31 above), whereas the applicants ’ damage was sustained in Serbia, not Italy. As to the assertion that it is the only body with power to find violations of the Convention, the Court reiterates that under Article 1, which provides “[t] he High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of th [e] Convention”, the primary responsibility for implementing and enforcing the rights and freedoms guaranteed by the Convention is laid on the national authorities. The machinery of application to the Court is thus subsidiary to national systems safeguarding human rights ( see Cocchiarella v. Italy [GC], no. 64886/01, § 38, ECHR 2006 - V ). Since, in the instant case, the complaint under Article 2 of the Convention has been declared inadmissible (see paragraph 4 above), the Court does not consider that the effects of the Court of Cassation ’ s interpretation give rise to any problems of compatibility. 110. The Court further notes that by virtue of Articles 41 and 37 of the Code of Civil Procedure, the preliminary jurisdictional point taken by the ministries in this case would have had to be raised at some point, even by the trial court of its own motion, in view of the involvement of a public authority (see paragraph 2 3 above). It did not, therefore, amount to a form of immunity which the State was at liberty to waive. 111. Consequently, it is not possible to conclude from the manner in which the domestic law was interpreted or the relevant international treaties were applied in domestic law that a “right” to reparation under the law of tort existed in such circumstances. Even if the applicants ’ assertion is correct that, as a result of changes in the case-law, it has been possible to claim such a right since 2004, this does not justify the conclusion that such a right existed before then. 112. The Court also notes that the Court of Cassation had already ruled in an earlier case that the Italian courts had no jurisdiction over the authorities for acts of a political nature and that such acts did not give rise to a cause of action against the State because they did not damage personal legal interests, which were the only interests capable of affording a right to compensation under the domestic case- law (see paragraph 2 6 above). Indeed, it was after the hearing before it that the Court of Cassation provided clarification as to what constituted an arguable claim in law. In determining the limits of its jurisdiction, the Court of Cassation marked out the bounds of the law of tort. 113. The Court does not accept the applicants ’ assertion that the impugned decision constituted an immunity, either de facto or in practice, because of its allegedly absolute or general nature. As the respondent Government rightly noted, the decision concerned only one aspect of the right to bring an action against the State, this being the right to claim damages for an act of government related to an act of war, and cannot be regarded as an arbitrary removal of the courts ’ jurisdiction to determine a whole range of civil claims (see Fayed, cited above, § 65). As was pointed out by the British Government and as the Court observed in paragraph 9 3 above, it is a principle of Convention case-law that Article 6 does not in itself guarantee any particular content for civil rights and obligations in national law. It is not enough to bring Article 6 § 1 into play that the non-existence of a cause of action under domestic law may be described as having the same effect as an immunity, in the sense of not enabling the applicant to sue for a given category of harm ( see Z and Others v. the United Kingdom, cited above, § 98). 114. The Court considers that the Court of Cassation ’ s ruling in the present case does not amount to recognition of an immunity but is merely indicative of the extent of the courts ’ powers of review of acts of foreign policy such as acts of war. It comes to the conclusion that the applicants ’ inability to sue the State was the result not of an immunity but of the principles governing the substantive right of action in domestic law. At the relevant time, the position under the domestic case-law was such as to exclude in this type of case any possibility of the State being held liable. There was, therefore, no limitation on access to a court of the kind in issue in Ashingdane (cited above, § 57). 115. It follows that the applicants cannot argue that they were deprived of any right to a determination of the merits of their claims. Their claims were fairly examined in the light of the domestic legal principles applicable to the law of tort. Once the Court of Cassation had considered the relevant legal arguments that brought the applicability of Article 6 § 1 of the Convention into play, the applicants could no longer claim any entitlement under that provision to a hearing of the facts. Such a hearing would only have served to protract the domestic proceedings unnecessarily because, even assuming that the Court of Cassation ’ s decision did not automatically bring the proceedings pending in the Rome District Court to an end, the District Court would only have had power to determine the nature of the impugned acts and, in the circumstances of the case, would have had no alternative but to dismiss the claim. The Court agrees with the British Government that the present case bears similarities to the aforementioned case of Z and Others v. the United Kingdom. As in that case, the applicants in the present case were afforded access to a court; however, it was limited in scope, as it did not enable them to secure a decision on the merits. 116. In the light of the foregoing, the Court finds that there has been no violation of Article 6 of the Convention. | The Court held that once the applicants had brought a civil action in the Italian courts, there indisputably existed a “jurisdictional link” for the purposes of Article 1 (obligation to respect human rights) of the Convention. However, the Court found no violation of Article 6 (right to a fair trial) of the Convention, holding that the applicants’ claims had been fairly examined in the light of the Italian legal principles applicable to the law of tort. |
220 | Voluntary waiver of right to assistance of a lawyer | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Russian Constitution 20. Article 48 § 2 of the Constitution provides that an arrested or detained person or a person accused of a criminal offence should have a right to legal representation from the moment of his or her arrest, placement into custody or when charges are brought. 21. Article 51 of the Constitution provides that no one should be obliged to give evidence against himself or herself, his or her spouse or close relative. Other exemptions from the obligation to testify may be authorised by a federal statute. B. RSFSR Code of Criminal Procedure 1. Right to legal representation 22. Pursuant to Article 47 § 1 of the Code, counsel could participate in the proceedings from the date when charges were brought or when the person was arrested or detained. If no preliminary inquiry or investigation was required in the case, counsel could participate in the proceedings from the date when the case was submitted for trial (Article 47 § 2). On 27 June 2000 the Constitutional Court declared Article 47 § 1 unconstitutional as regards the limitation on legal representation before charges were brought. The Constitutional Court decided that until the relevant legislation was amended, Article 48 § 2 of the Constitution should be directly applicable with due regard to the interpretation given by the Constitutional Court. 2. Record-based procedure 23. Chapter 13 of the RSFSR Code of Criminal Procedure provided for a record-based pre-trial procedure in respect of a number of criminal offences. The general provisions of the Code were applicable in this procedure unless Chapter 13 of the Code otherwise provided (Article 414). Under the record-based procedure, an inquirer was required to determine within ten days the circumstances of the case, identify the offender and collect the evidence (Article 415). The offender should sign an undertaking to present himself on the inquirer's or court's summons. The circumstances of the case and the legal characterisation of the offence should be put in writing in a report. 24. Having examined the report, the inquiring authority should open a criminal case. The person concerned should be informed of the nature of the accusation and be apprised of his right to legal representation and to have access to the file. 25. Having received the file, the prosecutor should (i) submit the case to a court or (ii) order an inquiry or preliminary investigation or (iii) discontinue the case. 3. Inspection 26. An investigator could carry out an inspection of a crime scene, location, premises, physical objects or documents in order to detect traces of the crime or other physical evidence or to determine the relevant circumstances (Article 178 of the Code). In urgent cases, the inspection could be carried out before opening a criminal case. In such cases, the case was to be opened immediately after the inspection of the crime scene. 27. A record had to be drawn up and signed by all persons who took part in the investigative measure (Articles 141 and 182 of the Code). Those persons were to be informed that they had a right to make comments (Article 141). If the suspect, accused or another participant refused to sign the record, a note to this effect should be included in the record (Article 142). 4. Admissions 28. An accused had a right to give the testimony on the charges against him, the circumstances of the case and the evidence collected in the case. His or her admission of guilt in the commission of an offence could be used as a basis for criminal charges only if his or her culpability was confirmed by the totality of evidence collected in the case (Article 77 of the Code). C. Code of Criminal Procedure 29. Article 413 of the Code of Criminal Procedure, in force at the present time, provides for a possibility to re-open criminal proceedings on the basis of a finding of a violation of the Convention made by the European Court of Human Rights. THE LAW I. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION 30. The applicant alleged that the proceedings on 21 February 2001 and the ensuing criminal proceedings before the national courts, taken together, had violated his rights under Article 6 §§ 1 and 3 (c) and (d), Article 7 of the Convention and Article 2 of Protocol No. 7. The Court has examined the applicant's complaint under Article 6 of the Convention, which in the relevant parts reads as follows: “1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... 3. Everyone charged with a criminal offence has the following minimum rights: ... (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; ... ” A. Submissions by the parties 1. Complaints concerning the pre-trial proceedings 31. The applicant alleged that on 21 February 2001 he had admitted the wrongdoing without the benefit of legal advice, fearing incarceration and in the hope of being acquitted at the trial. The applicant submitted that the village in which the questioning had taken place and the proceedings had been instituted had no lawyers. He had not been afforded any time to retain one from a nearby town. 32. The Government submitted that the applicant's car had been inspected in the presence of two attesting witnesses; two cans of diesel had been seized from the car. As follows from the inspection record signed by the applicant, he had poured out the diesel from his employer's premises. Thereafter, he had been apprised of his right not to testify against himself and had been questioned under Article 415 of the RSFSR Code of Criminal Procedure (CCrP) (see paragraph 23 above). The applicant confirmed that he had taken the diesel for personal use. The Government contended that Article 47 of the CCrP had not been applicable in the record-based proceedings (see paragraph 22 above). The latter did not require presence of counsel for an on-the-spot interview such as that of the applicant on 21 February 2001. In any event, the applicant waived his right not to testify against himself. 2. Complaints concerning the court proceedings 33. The applicant also complained that the trial court should not have convicted him on the basis of his pre-trial statements; the trial judge had arbitrarily rejected the testimonies by the defence witnesses, including the applicant's wife and Mr P and thus had failed to examine them under the same conditions as the prosecution witnesses, who merely attested the fact of the car inspection. He also contended that both the trial and appeal courts had wrongly refused to verify and to take into consideration other exculpatory evidence, including an invoice for the purchase of diesel. 34. The Government submitted that the applicant's conviction had been based on his pre-trial statements and witness testimonies by Mr K, Mr P and Mr F. The witnesses suggested by the applicant had been examined by the trial court. Their testimony had not been considered reliable in view of their interest in the outcome of the proceedings. Despite repeated requests from the trial court, the applicant had failed to provide a convincing explanation for the delay in submitting the invoice. Thus, this document had not been accepted in evidence. B. The Court's assessment 1. Admissibility 35. The Court considers that the application is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 2. Merits ( a ) General principles 36. The Court reiterates that Article 6 – especially paragraph 3 – may be relevant before a case is sent for trial if and in so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with its requirements (see Öcalan v. Turkey [GC], no. 46221/99, § 131, ECHR 2005 ‑ IV, and Imbrioscia v. Switzerland, 24 November 1993, § 36, Series A no. 275 ). The manner in which Article 6 §§ 1 and 3 (c) is to be applied during the preliminary investigation depends on the special features of the proceedings involved and on the circumstances of the case. In order to determine whether the aim of Article 6 – a fair trial – has been achieved, regard must be had to the entirety of the domestic proceedings conducted in the case ( Imbrioscia, cited above, § 38). 37. In Salduz v. Turkey [GC] ( no. 36391/02, § § 55, 27 November 2008 ) the Court held 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. 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 (ibid, and more recently, Çimen v. Turkey, no. 19582/02, § § 26-27, 3 February 2009 ). 38. The Court also reiterates that the right to silence and the right not to incriminate oneself are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6. Their rationale lies, inter alia, in the protection of the accused against improper compulsion by the authorities, thereby contributing to the avoidance of miscarriages of justice and to the fulfilment of the aims of Article 6 ( see Bykov v. Russia [GC], no. 4378/02, § 92, ECHR 2009 ‑ ..., with further references ). The right not to incriminate oneself 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, inter alia, J.B. v. Switzerland, no. 31827/96, § 64, ECHR 2001-III). In this sense the right is closely linked to the presumption of innocence contained in Article 6 § 2 of the Convention. In examining whether a procedure has extinguished the very essence of the privilege against self-incrimination, the Court must examine the nature and degree of the compulsion, the existence of any relevant safeguards in the procedures and the use to which any material so obtained is put ( ibid. ). 39. The general requirements of fairness contained in Article 6 apply to all criminal proceedings, irrespective of the type of offence at issue. Public-interest concerns cannot justify measures which extinguish the very essence of an applicant's defence rights, including the privilege against self-incrimination guaranteed by Article 6 of the Convention (see Bykov, cited above, § 93). 40. Lastly, the Court reiterates that a waiver of a right guaranteed by the Convention – in so far as it is permissible – must not run counter to any important public interest, must be established in an unequivocal manner and must be attended by minimum safeguards commensurate to the waiver's importance ( see Sejdovic v. Italy [GC], no. 56581/00, § 86, ECHR 2006 ‑ ... ). Moreover, before an accused can be said to have impliedly, through his conduct, waived an important right under Article 6, it must be shown that he could reasonably have foreseen what the consequences of his conduct would be (see Talat Tunç v. Turkey, no. 324 32/96, § 59, 27 March 2007, and Jones v. the United Kingdom (dec.), no. 30900/02, 9 September 2003). (b) Application in the present case 41. Having examined all the material submitted by the parties, the Court makes the following findings as to the sequence of events concerning the applicant's self-incriminating statements. As followed from the statement made at the trial by Mr F, there had previously been cases of workers pouring out diesel from their service vehicles, and thus the company's director had asked the competent authorities to carry out checks (see paragraph 17 above). The applicant's car was apparently stopped during one of such checks. It does not transpire from the case file that at any time on 21 February 2001 the applicant was informed of the reason for which his car had been stopped and inspected. Neither was he informed of the nature and cause of any suspicion or accusation against him. After the police inspection of his car, the applicant was asked about the origin of the fuel. He did not tell them about the purchase of the fuel because he felt intimidated and did not have a receipt to prove the purchase. Instead, he stated that he had poured out the fuel from his service vehicle. An inspection record was drawn. This record contained a note indicating that the applicant had poured out the fuel from the company's premises. Shortly thereafter, the applicant was apprised of his right to remain silent and signed a statement to the police confirming that he had poured out thirty litres of fuel from his service vehicle for personal use. 42. The Court reiterates that in criminal matters, Article 6 of the Convention comes into play as soon as a person is “ charged ”; this may occur on a date prior to the case coming before the trial court, such as the date of arrest, the date when the person concerned was officially notified that he would be prosecuted or the date when preliminary investigations were opened ( see Eckle v. Germany, 15 July 1982, § 73, Series A no. 51, and more recently, O'Halloran and Francis v. the United Kingdom [GC], nos. 15809/02 and 25624/02, § 35, ECHR 2007 ‑ ... ). “ Charge ”, for the purposes of Article 6 § 1, may be defined as “ the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence ”, a definition that also corresponds to the test whether “ the situation of the [ person ] has been substantially affected” (see Shabelnik v. Ukraine, no. 16404/03, § 57, 19 February 2009; Deweer v. Belgium, 27 February 1980, § 46, Series A no. 35; and Saunders v. the United Kingdom, 17 December 1996, § § 67 and 74, Reports of Judgments and Decisions 1996 ‑ VI ). Given the context of the road check and the applicant's inability to produce any proof of the diesel purchase at the moment of his questioning by the police, the Court considers that there should have been a suspicion of theft against the applicant at that moment. 43. Applying these principles to the facts of the case, the Court notes that the trial court's use made of the admissions made on 21 February 2001, which led to the institution of criminal proceedings against the applicant and then served for convicting him of theft, is at the heart of the applicant's complaints under Article 6 of the Convention (compare Saunders, cited above, §§ 67 and 74; and Allen v. the United Kingdom (dec.), no. 76574/01, 10 September 2002). It is also noted that the inspection record itself indicated Article 178 of the RSFSR Code of Criminal Procedure as the legal basis for the inspection (see paragraph 26 above). Thus, although the applicant was not accused of any criminal offence on 21 February 2001, the proceedings on that date “substantially affected” his situation. The Court accepts that Article 6 of the Convention was engaged in the present case. Nor was there any disagreement on this point between the parties. 44. The Court further notes that the main thrust of the applicant's complaint is that he was convicted on the basis of his pre-trial admissions made without the benefit of legal advice. It is noted that the respondent Government did not plead that the applicant had not exhausted domestic remedies by failing to raise in substance the above issue on appeal against the trial judgment. Thus, the Court will examine the merits of the applicant's complaint. 45. Although the Court has accepted that Article 6 of the Convention was applicable in the pre-trial proceedings in the present case (see paragraph 43 above), the Court repeats that the manner in which the guarantees of its paragraphs 1 and 3 (c) are to be applied in pre-trial proceedings depends on the special features of those proceedings and the circumstances of the case assessed in relation to the entirety of the domestic proceedings conducted in the case. (i) Legal assistance 46. The Court notes at the outset that the applicant only complained that he had not been afforded enough time to contact a lawyer in a nearby town. The Court cannot but note that, as confirmed by the applicant's representative in his letter to the European Court dated 26 July 2002, both on 21 February and 2 March 2001 the applicant “chose not to exercise his right to legal representation with the hope that the court would give him a fair trial even without counsel ”. 47. Moreover, the Court observes that the present case is different from previous cases concerning the right to legal assistance in pre-trial proceedings (see Salduz [GC], §§ 12-17 and Öcalan [GC], § 131, both cited above; see also Shabelnik, cited above, § 59; Panovits v. Cyprus, no. 4268/04, § § 7-10, 11 December 2008; Kolu v. Turkey, no. 35811/97, § § 14-22, 2 August 2005; Brennan v. the United Kingdom, no. 39846/98, § 41, ECHR 2001 ‑ X; Quinn v. Ireland, no. 36887/97, § § 10-13, 21 December 2000; Averill v. the United Kingdom, no. 36408/97, § 55, ECHR 2000 ‑ VI; Magee v. the United Kingdom, no. 28135/95, § § 8-15, ECHR 2000 ‑ VI; and Imbrioscia, §§ 9-19, cited above) because the applicant was not formally arrested or interrogated in police custody. He was stopped for a road check. This check and the applicant's self-incriminating statements were both carried out and made in public in the presence of two attesting witnesses. It is true that the trial record contains a statement by the applicant suggesting that the writing down of the inspection record and/or his subsequent statement were started on the spot but were completed in the village of Birofeld. Nevertheless, the Court concludes on the basis of the materials in the case file that the relevant events, namely the drawing of the inspection record and the taking of the applicant's explanation, were carried out in a direct sequence of events. 48. Although the applicant in the present case was not free to leave, the Court considers that the circumstances of the case as presented by the parties, and established by the Court, disclose no significant curtailment of the applicant's freedom of action, which could be sufficient for activating a requirement for legal assistance already at this stage of the proceedings. 49. The Court notes that the role of the police in a situation such as in the present case was to draw up an inspection record and receive the applicant's explanation as to the origin of the cans in his car (see paragraphs 9 and 10 above). Having done so, the police transferred the documents to the inquirer who, in his turn, compiled a report to his superior indicating that there was a case to answer against the applicant on suspicion of theft (see paragraph 12 above). This report prompted the inquirer's superior to open a criminal case against the applicant (see paragraph 13 above). 50. At that stage, namely on 2 March 2001, the applicant was apprised of his right to legal assistance. It was open to him to consult a lawyer before attending the meeting on 2 March 2001. At that meeting the applicant was presented with the version of the events based on his statements made on 21 February 2001. The applicant voluntarily and unequivocally agreed to sign the act of accusation and waived his right to legal assistance, indicating that he would defend himself at the trial. 51. The foregoing considerations suffice for the Court to conclude that the absence of legal representation on 21 February and 2 March 2001 did not violate the applicant's right to legal assistance under Article 6 § 3 (c) of the Convention. (ii) Privilege against self-incrimination and right to remain silent 52. Concerning the privilege against self-incrimination and the right to remain silent, the Court has already held that the circumstances of the case disclosed the existence of a suspicion of theft against the applicant after he had failed to prove the fuel purchase (see paragraph 42 above). It is not without relevance in that connection that when putting in writing the applicant's “explanations”, officer B considered it necessary to apprise him of the privilege against self-incrimination. In the Court's opinion, this fact also gives credence to the argument suggesting that already at that time the authorities suspected the applicant of theft. The Convention is intended to guarantee rights that are practical and effective (see Airey v. Ireland, 9 October 1979, § 24, Series A no. 32). The Court considers that in the circumstances of the case it was incumbent on the police to inform the applicant of the privilege against self-incrimination and the right to remain silent. 53. The Court notes that the Government maintained that the applicant had waived his right not to testify against himself. The applicant did not dispute this. It is true that in accordance with Article 51 of the Constitution the applicant was told that he was not obliged to give evidence against himself (see paragraph 21 above). Although it has not been alleged that the above warning was in any way insufficient, Court notes that the applicant was apprised of the right to remain silent after he had already made a self-incriminating statement in the inspection record indicating that he had poured out the diesel from the company's premises. 54. Bearing in mind the concept of fairness in Article 6, the Court considers that the right not to incriminate oneself cannot reasonably be confined to statements of admission of wrongdoing or to remarks which are directly incriminating (see Saunders, cited above, § 71). Testimony obtained under compulsion which appears on its face to be of a non-incriminating nature - such as exculpatory remarks or mere information on questions of fact - may later be deployed in criminal proceedings in support of the prosecution case, for example to contradict or cast doubt upon other statements of the accused or evidence given by him during the trial or to otherwise undermine his credibility (ibid). 55. The Court considers that being in a rather stressful situation and given the relatively quick sequence of the events, it was unlikely that the applicant could reasonably appreciate without a proper notice the consequences of his being questioned in proceedings which then formed basis for his prosecution for a criminal offence of theft. Consequently, the Court is not satisfied that the applicant validly waived the privilege against self-incrimination before or during the drawing of the inspection record. Moreover, given the weight accorded to the applicant's admission at the trial, the Court does not need to determine the validity of the applicant's subsequent waiver of the privilege against self-incrimination in the “Explanations”, which derived from his earlier admission (see paragraphs 11 and 40 above). 56. In sum, the evidence available to the Court supports the claim that the applicant's pre-trial admission, whether directly self-incriminating or not, was used in the proceedings in a manner which sought to incriminate him. In the Court's view, statements obtained in the absence of procedural guarantees, should be treated with caution (see Lutsenko v. Ukraine, no. 30663/04, § 51, 18 December 2008 ). 57. Hence, what remains to be determined is whether the criminal proceedings against the applicant can be considered fair on account of the use made of the applicant's pre-trial admission. Regard must be had to whether the rights of the defence have been respected and whether the applicant was given the opportunity of challenging the authenticity of the evidence and of opposing its use. In addition, the quality of the evidence must be taken into consideration, including whether the circumstances in which it was obtained cast doubt on its reliability or accuracy. 58. The Court notes in that connection that in so far as it can be discerned from the national courts'reasoning, the applicant's pre-trial admission was not considered to have been obtained in breach of domestic law. The Court considers in its turn that although the applicant was represented by a lawyer at the trial, the detriment he suffered because of the breach of due process in the pre-trial proceedings was not remedied at the trial. The trial court expressly referred to the statement made by the applicant in the inspection record and his subsequent statement. It did not draw any distinction or made any comparison between that statement and the subsequent more detailed statement made after the applicant had been apprised of Article 51 of the Constitution. While it is not the Court's role to examine whether the evidence in the present case was correctly assessed by the national courts, the Court considers that the conviction was based on the applicant's self-incriminating statements. The Court finds it regrettable that the courts did not provide sufficient reasons for dismissing the applicant's arguments challenging the admissibility of the pre-trial statements, especially in the light of the weakness of the other evidence presented by the prosecution at the trial. It was, however, the prosecution's obligation under Russian law to prove the offence of theft on the strength of the other evidence because the CCrP required that a defendant's admission of guilt in the commission of an offence could be used as a basis for criminal charges only if his or her culpability was confirmed by the totality of evidence collected in the case (see paragraph 28 above). The Court cannot but observe that two of the witnesses presented by the prosecution only confirmed the fact of the car inspection and the seizure of the fuel. A third person only testified on the circumstances which were capable of clarifying the reasons for and the purpose of the above inspection. 59. The Court further observes that, contrary to the applicant's allegation, it follows from the trial record that the trial court examined witnesses on behalf of the applicant. However, it rejected their testimony as unreliable on account of the witnesses'close relationship with the applicant. Lastly, it is also noted that the court refused to accept in evidence the invoice which would allegedly exculpate the applicant (see, by contrast, Bykov, cited above, § § 95 et seq.; and Heglas v. the Czech Republic, no.5935/02, § § 89 and 90, 1 March 2007 ). Thus, the Court concludes that the trial court based the conviction of the applicant on the statement that he had given to the police without being informed of his right to not incriminate himself. 60. In the light of the above considerations, given the particular circumstances of the present case and taking the proceedings as a whole, the Court concludes that there has been a violation of Article 6 § 1 of the Convention. 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 pecuniary and non-pecuniary damage. 63. The Government considered that the applicant's claim concerned only non-pecuniary damage and was unsubstantiated. 64. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, making its assessment on an equitable basis, and having regard to the nature of the violation found, the Court awards the applicant EUR 3 ,000 in respect of non-pecuniary damage, plus any tax that may be chargeable to the applicant. 65. The Court also reiterates that when an applicant has been convicted despite an infringement of his rights as guaranteed by Article 6 of the Convention, he should, as far as possible, be put in the position that he would have been in had the requirements of that provision not been disregarded, and that the most appropriate form of redress would, in principle, be trial de novo or the reopening of the proceedings, if so requested by the person concerned (see Öcalan [GC], cited above, § 210, and Vladimir Romanov v. Russia, no. 41461/02, § 118, 24 July 2008 ). The Court observes, in that connection, that Article 413 of the Code of Criminal Procedure of the Russian Federation provides that criminal proceedings may be reopened if the Court has found a violation of the Convention (see paragraph 29 above). B. Costs and expenses 66. The applicant made no claim in respect of costs and expenses. The Court considers that there is no call to make an award under this head. C. Default interest 67. 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 no violation of Article 6 § 3 (c) taken together with Article 6 § 1 of the Convention. Although the applicant had not been free to leave when he was stopped on 21 February the circumstances of the case disclosed no significant curtailment of his freedom of action sufficient to activate a requirement for legal assistance at that stage. The police’s role had been to draw up a record of inspection of the car and to hear the applicant’s explanation as to the origin of the cans. That information had then been passed to an inquirer who had in turn compiled a report on the basis of which his superior had decided to open a criminal case against the applicant. At that stage (2 March 2001) the applicant was apprised of his right to legal assistance, but voluntarily and unequivocally agreed to sign the act of accusation and waived his right to legal assistance, indicating that he would defend himself at the trial. |
1,086 | Dismissal | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Domestic law 27. The relevant Articles of the Greek Constitution provide as follows. Article 9 § 1 “ ... An individual ’ s private and family life is inviolable ...” Article 22 § 1 “ Work constitutes a right and shall enjoy the protection of the State, which shall seek to create conditions of employment for all citizens and shall promote the moral and material advancement of the rural and urban working population. ... ” Article 25 § 1 “ The rights of human beings as individuals and members of society and the principle of the constitutional welfare state are guaranteed by the State. All agents of the State shall be obliged to ensure the unhindered and effective exercise thereof. Where appropriate, these rights shall also apply to the relations between individuals. Restrictions of any kind which, according to the Constitution, may be imposed upon these rights, shall be provided for either directly by the Constitution or by statute ... and shall respect the principle of proportionality. ” 28. Section 1 of Law no. 2112/1920 on dismissal and the termination of employment contracts in the private sector provides : “A private-sector employee recruited on a contract of indefinite duration who has been employed for more than two months cannot be dismissed without prior written notice of termination of the employment contract ... ” 29. The relevant sections of Law no. 3304/2005 on equal treatment (race, nationality, religion, age, sexual orientation ) read as follows. Section 1 – object “ The object of the present Law is the adoption of a general regulatory framework in which to combat discrimination based on religion or other beliefs, disability, age or sexual orientation in the sphere of employment ... and to ensure that the principle of equal treatment is applied. ” Section 2 – principle of equality of treatment “ 1. Direct or indirect discrimination on one of the grounds referred to in section 1 shall be forbidden. 2. Harassment ..., with the aim or effect of adversely affecting a person ’ s dignity and creating an intimidating, hostile, degrading, humiliating or aggressive environment, shall also be regarded as discrimination .” Section 10 – reasonable measures accommodating disabled persons “In order to comply with the principle of equal treatment of disabled persons, the employer must take all necessary measures required in the circumstances to ensure that disabled persons have access to a workstation, can carry on an activity and develop professionally, and take part in professional training, in so far as such measures do not impose an unreasonable burden on the employer ... ” Section 12 – positive action and special measures “ 1. It shall not be discriminatory to adopt or maintain special measures designed to prevent or compensate for disadvantages based on religious grounds or other beliefs, or grounds of disability, age or sexual orientation. 2. It shall not be discriminatory to adopt or maintain measures protecting the health and safety of disabled persons in the workplace or measures creating or maintaining the conditions or facilities for preserving and promoting their integration in the activity and work. ” B. The National Commission for Human Rights 30. On 27 January 2011 the National Commission for Human Rights drew up a report on “ issues relating to the protection of the rights of HIV- positive persons ”. The introduction to the report reads as follows. “ The National Commission for Human Rights has been prompted to examine issues relating to the protection of the rights of HIV- positive persons by the observed lack of enjoyment of fundamental rights by the said individuals, which is exacerbated by stigmatisation, manifestations of intolerance, violations of confidentiality and other forms of social discrimination to their detriment. The impetus for this was judgment no. 676/2009 of the Court of Cassation, in which that court actually upheld the lawfulness of the dismissal of an HIV-positive employee and endorsed the conditions in which he was dismissed. Having regard to the importance of that decision – which is the first judicial ruling of its kind in the judicial annals of the country – and to the fact that it highlighted a unique but important aspect of the problems facing HIV-positive persons, the Commission organised a consultation with several other organisations and institutions campaigning for the protection of the rights of such persons. A number of issues were raised during the discussion, but the ones considered to be the most important were the following : a) stigmatisation as a result of HIV/Aids, b) discriminatory treatment of persons infected with the virus, particularly in the workplace, c) access by such persons to health services, and d) protection of their private life. ” 31. In its final considerations the Commission observed : “ There is a current and pressing need to protect the rights of HIV- positive persons and to institutionalise and apply the fundamental principles on which these rights are based, having regard to the fact that, according to the latest official statistics, the disease appears to have reached alarming levels in our country. The risks do not stem only from the disease itself and the fact that it is spreading, but also from the formation and consolidation of dangerous and scientifically unfounded misconceptions through court rulings which maintain that HIV-positive employees constitute a ‘ danger ’ in their workplace. Lastly, we should point out that the protection of the rights of HIV- positive persons does not concern them alone but public health in general, in that if these people are not protected they will hesitate to be tested ... which will undermine the efforts being made by public-health organisations to limit the spread of the disease.” III. RELEVANT EUROPEAN AND INTERNATIONAL INSTRUMENTS A. International Labour Organization ( ILO ) Recommendation concerning HIV and AIDS and the World of Work, 2010 (no. 200) 32. This Recommendation is the first human rights instrument on HIV and Aids in the world of work. It was adopted, by a large majority, by government representatives, employers and workers of the member States of the ILO at the International Labour Conference in June 2010. It provides, inter alia, as follows. “ 3. ... ( c) [T] here should be no discrimination against or stigmatization of workers, in particular jobseekers and job applicants, on the grounds of real or perceived HIV status or the fact that they belong to regions of the world or segments of the population perceived to be at greater risk of or more vulnerable to HIV infection; ... 9. Governments, in consultation with the most representative organizations of employers and workers, should consider affording protection equal to that available under the Discrimination (Employment and Occupation) Convention, 1958, to prevent discrimination based on real or perceived HIV status. 10. Real or perceived HIV status should not be a ground of discrimination preventing the recruitment or continued employment, or the pursuit of equal opportunities consistent with the provisions of the Discrimination (Employment and Occupation) Convention, 1958. 11. Real or perceived HIV status should not be a cause for termination of employment. Temporary absence from work because of illness or caregiving duties related to HIV or AIDS should be treated in the same way as absences for other health reasons, taking into account the Termination of Employment Convention, 1982. 12. When existing measures against discrimination in the workplace are inadequate for effective protection against discrimination in relation to HIV and AIDS, Members should adapt these measures or put new ones in place, and provide for their effective and transparent implementation .” B. Texts of the Parliamentary Assembly of the Council of Europe 33. The Parliamentary Assembly of the Council of Europe ( PACE ) has raised the question of HIV / Aids in a number of documents. In its Recommendation 1116 (1989) on Aids and human rights, it stated the following : “ 3. Noting that, although the Council of Europe has been concerned with prevention ever since 1983, the ethical aspects have been touched upon only cursorily; 4. Considering nevertheless that it is essential to ensure that human rights and fundamental freedoms are not jeopardised on account of the fear aroused by Aids; 5. Concerned in particular at the discrimination to which some Aids victims and even seropositive persons are being subjected; ... 8. Recommends that the Committee of Ministers: A. instruct the Steering Committee for Human Rights to give priority to reinforcing the non-discrimination clause in Article 14 of the European Convention on Human Rights, either by adding health to the prohibited grounds of discrimination or by drawing up a general clause on equality of treatment before the law; ... ” 34. In its Resolution 1536 (2007) on HIV/Aids in Europe, PACE reaffirmed its commitment to combating all forms of discrimination against persons living with HIV / Aids : “9. While emphasising that the HIV/Aids pandemic is an emergency at the medical, social and economic level, the Assembly calls upon parliaments and governments of the Council of Europe to: 9.1. ensure that their laws, policies and practices respect human rights in the context of HIV/Aids, in particular the right to education, work, privacy, protection and access to prevention, treatment, care and support; 9.2. protect people living with HIV/Aids from all forms of discrimination in both the public and private sectors ... ” C. The International Covenant on Economic, Social and Cultural Rights 35. Article 2 § 2 of the International Covenant on Economic, Social and Cultural Rights provides that the rights enunciated in the Covenant “ will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status ”. In its General Comment on Non- Discrimination ( No. 20, 2009), the United Nations Committee on Economic, Social and Cultural Rights expressly stated that the expression “ other status ” appearing at the end of Article 2 § 2 of the Covenant included health status, in particular HIV status : “ 33. Health status refers to a person ’ s physical or mental health. States parties should ensure that a person ’ s actual or perceived health status is not a barrier to realizing the rights under the Covenant. The protection of public health is often cited by States as a basis for restricting human rights in the context of a person ’ s health status. However, many such restrictions are discriminatory, for example, when HIV status is used as the basis for differential treatment with regard to access to education, employment, health care, travel, social security, housing and asylum ... ” D. Judgment of the South African Constitutional Court in the case of Hoffmann v. South African Airways 36. In the case of Hoffmann v. South African Airways (CCT 17/00) of 28 September 2000, an application had been made to the Constitutional Court against a decision of the Witwatersrand High Court regarding discrimination in the employment of Mr Hoffmann as a cabin attendant for the airline company South African Airways on the ground that he was HIV-positive. The company relied on three arguments : the negative reaction of HIV-positive persons to the yellow fever vaccine; the risk of transmitting diseases to passengers and other members of the company; and the low return on investment in such staff as they had a lower life expectancy than the others. 37. The Constitutional Court unanimously held that such discrimination had breached Mr Hoffmann ’ s constitutional rights. 38. Firstly, it held that a distinction had to be made between HIV- positive persons and persons suffering from immune deficiency. It observed that Mr Hoffmann had been only HIV-positive at the time of his dismissal and the court ’ s decision. It added that the practice of other foreign airlines had no bearing on an examination of the constitutionality of the decision. Secondly, it recognised that a company ’ s commercial concerns were legitimate but considered that these should not serve as a pretext for denying elementary fundamental rights such as compassion and tolerance of others. Having regard to those overriding considerations, persons infected with HIV were in a particularly fragile situation which required full protection under the legal system. Accordingly, the court held that the violation of Mr Hoffmann ’ s rights required the airline to offer him a job forthwith and to bear the costs of the proceedings. IV. COMPARATIVE LAW MATERIAL 39. A comparative study of the legislation of thirty member States of the Council of Europe on the protection provided under domestic law to HIV- infected persons from discrimination in the employment context shows that seven States – Albania, Azerbaijan, Italy, the Republic of Moldova, Romania, the United Kingdom and Russia – have passed specific legislation in this respect. In the twenty-three other States, which have not passed specific legislation, HIV -positive persons who face differences in treatment in the workplace can rely on the general provisions of domestic law governing non-discrimination. The decisions of the domestic courts and other bodies for human rights protection in some of these States show that they grant protection against dismissal to HIV-positive persons through the prohibition imposed on other grounds of discrimination, such as health or disability. 40. In France, for example, on 6 September 2012 the Equal Treatment Commission ( the Human Rights Council since October 2012 ) found that the Law on equal treatment of persons suffering from a disability or chronic illness did not oblige an employee ( the case in question concerned the dismissal of an HIV-positive employee of a licensed bar ) to disclose his or her illness unless he or she would otherwise be unable to perform the work. The Commission also found that the supposed prejudice of customers towards HIV-positive persons did not justify terminating the contract. 41. On 13 December 1995 the Pontoise Criminal Court, in France, sentenced an employer to five months ’ imprisonment, suspended, and ordered him to pay EUR 3,000 in damages for dismissing – purportedly on economic grounds – one of his employees, a veterinary assistant who was HIV-positive. 42. Even before the enactment in Belgium of the Law of 10 May 2007 on combating certain forms of discrimination, the Dendermonde Labour Court had held, on 5 January 1998, that an employer had abused his right to terminate an employment contract by dismissing an employee solely on account of his HIV infection. 43. The Swiss Federal Supreme Court ( judgment BGE 127 III 86) held that dismissal from work solely on account of HIV infection was discriminatory and unfair for the purposes of Article 336 of the Code of Obligations. 44. On 18 October 2004 the Poltava Regional Court, in Ukraine, ordered the editor of a newspaper to pay compensation to a journalist who had been dismissed because he was HIV-positive. 45. In Croatia, following the intervention of the Ombudsman, the Police Internal Rules, which had previously provided that an HIV-positive person could neither become nor remain a serving police officer, were amended. 46. On 23 November 2009 the Polish Constitutional Court declared unconstitutional a provision of the Ministry of Interior ’ s Regulations according to which any police officer who was HIV-positive should automatically be declared unfit for service. 47. On 26 April 2011 the Russian Supreme Court declared inoperative a provision of the Civil Aviation Regulations forbidding HIV-positive persons from working as pilots on any type of aircraft. THE LAW I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 8 48. The applicant complained of a violation of his right to private life, alleging that the Court of Cassation had ruled that his dismissal on the ground of his HIV status had been lawful. He also submitted that his dismissal had been discriminatory and that the Court of Cassation ’ s reasoning, according to which his dismissal had been justified by the need to preserve a good working environment in the company, was not a valid basis for differential treatment compatible with Article 14. He relied on Article 14 of the Convention taken in conjunction with Article 8. Those provisions are worded as follows : 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 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. The parties ’ submissions 1. The Government 49. The Government conceded that any dismissal of an employee would doubtless have an impact on his or her private life. However, that did not suffice to render Article 8 applicable. According to the Court ’ s case-law, a dismissal did not raise a problem under Article 8 unless it entailed broader consequences for the employee, such as an inability to find another job, and not merely the loss of his or her post. The applicant ’ s dismissal had not had the effect of excluding him from the job market ( as had been the case in Sidabras and Džiautas v. Lithuania, nos. 55480/00 and 59330/00, ECHR 2004 ‑ VIII ), or of generally depriving HIV-positive persons of the right to employment. The applicant had found work shortly after he was dismissed. Article 8 protected the relations that both parties intended to forge, whereas in the applicant ’ s case his colleagues had not wanted to work with him. Lastly, the applicant ’ s employer had not misused information relating to the applicant ’ s health status. 50. According to the Government, the applicant had not been a victim of discrimination either. His employer had dismissed him out of concern to protect the company ’ s interests and secure peaceful working relations, not because of prejudice against his HIV status. The fact that the Court of Cassation had recognised that he had been dismissed on that basis did not mean that it had been prejudiced or biased against the applicant. Its reasoning had not hinged on the fact that the applicant was HIV-positive. Furthermore, the applicant ’ s employer, S.K., had not been at an advantage before the Court of Cassation on account of not being HIV-positive. 51. The Government submitted that the applicant ’ s health and his continued employment in the company had not been the subject of “ negotiation ” between the employer and the applicant ’ s colleagues. The employer had tried to find a solution which, without endangering the survival of her company, would take account of the applicant ’ s interests. She had examined the possibility of taking less radical measures than dismissal and had tried to help the applicant by offering him a training course in hairdressing or helping him to set up his own business. When all those attempts failed, the employer had put her personal interests – preserving the smooth operation of the company – above the applicant ’ s interests and had decided to dismiss him. The employer could not have ignored her employees ’ fears. Ensuring a harmonious working environment was not only a right of the employer but also an obligation towards his or her employees. The fact that an employer had put her personal interests above those of one of her employees and had not reacted in a “desirable” way – namely, by ignoring her employees ’ fears – and the fact that the Court of Cassation had not compelled that employer to do what would have been “desirable” did not amount to a violation of the Convention. 52. The Government submitted that the cases of Obst v. Germany ( no. 425/03, 23 September 2010) and Schüth v. Germany ( no. 1620/03, ECHR 2010), relied on by the applicant, weighed more heavily in favour of a finding of no violation. In the latter judgment in particular the Court had attached special weight to the fact that the applicant ’ s dismissal might make it totally impossible for him to find employment, which was not the case in the present situation. As the applicant had been hired by another company shortly after his dismissal, it had not had the effect of stigmatising him or debarring him from professional or social life. 53. The Government considered that the present case had to be distinguished from Kiyutin v. Russia ( no. 2700/10, ECHR 2011 ), in which the restrictions imposed on the applicant ’ s rights were the result of a State action. In the present case the alleged discriminatory treatment had been the act of an individual and the Court of Cassation had had the task of examining a dispute between individuals. Furthermore, the European consensus observed by the Court in Kiyutin had concerned the entry, stay and residence of HIV-positive persons in the member States of the Council of Europe; it had not concerned the degree of responsibility of individuals, nor had it compared their responsibility with that of the State. 54. The Government pointed out that the Court of Cassation had not deemed the fears of the applicant ’ s colleagues worthy of protection. Its judgment had been neither arbitrary nor unreasonable even if the State ’ s margin of appreciation was considered to be limited on account of the fact that the applicant was HIV-positive. In the present case the Greek judicial system could not require more of the employer, given that she was only an individual, that she had tried both to avoid dismissing the applicant and to help him, and that the atmosphere in the company was particularly hostile towards him. 55. The Government submitted that the applicant had not been treated unfavourably on account of his health either by the Court of Cassation or his employer. The latter had not compared the applicant ’ s state of health with that of her other employees; she had taken the decision to dismiss him not because he was HIV-positive but in order to restore peace in the company. 56. The Government argued that neither Article 8, whether taken alone or in conjunction with Article 14, nor even Protocol No. 12 required member States to introduce legislation outlawing the dismissal of HIV-positive employees from a post in the private sector. Provision for such an obligation would lead to an extension of the State ’ s responsibility regarding relations between individuals, whereas according to the Court ’ s relevant case-law the States had a wide margin of appreciation in that area. They referred to the case of Evans v. the United Kingdom ( [GC], no. 6339/05, § 77, ECHR 2007 ‑ I ). 57. In the Government ’ s submission, States were of course not prevented from passing legislation of that type but this could not be regarded as an obligation arising from Articles 8 and 14 of the Convention. The Greek State had in principle complied with its positive obligations regarding employment law, including in the areas in which questions could arise that affected the private life of the persons concerned. It afforded effective protection to HIV-positive employees through well-established provisions of employment law, civil law, civil procedure and provisions governing specific categories of employee ( Law no. 2643/1998 on employment protection for disabled persons and Law no. 3304/2005 incorporating Directive 2000/78/ EC of the Council of the European Union of 27 November 2000 establishing a general framework for equal treatment in employment and occupation ). 58. The Government observed that, relying on the relevant provisions of civil law and employment law, the applicant had brought an action in the civil courts, which had examined his case according to the special procedure applicable to employment disputes. The fact that the lower courts had found in the applicant ’ s favour showed that the above-mentioned provisions provided a sufficient framework for the protection of HIV-positive employees. The effectiveness of that framework could not be challenged merely because the Court of Cassation had ultimately found in favour of the applicant ’ s employer. 2. The applicant 59. Relying on Sidabras and Džiautas, Obst and Schüth, all cited above; Palomo Sánchez and Others v. Spain ( [GC], nos. 28955/06, 28957/06, 28959/06 and 28964/06, ECHR 2011 ); and Siliadin v. France ( no. 73316/01, ECHR 2005-VII), the applicant claimed that the fact that his complaint related to the circumstances of his dismissal did not render Article 8 of the Convention or the principle of positive obligations inapplicable per se. The factual circumstances showed that the attitude of his colleagues and of his employer had had an impact on his private life which could not be regarded as negligible. He had been the subject of immediate, direct and effective stigmatisation on the part of his colleagues and had been treated like a pariah who should no longer be entitled to work. Furthermore, his employer could, and should, have adopted a different attitude towards him and in particular insisted that his HIV status was not a ground for dismissal, rather than turning it into a subject for negotiation with her other employees. The applicant submitted that he had expressed his desire to keep his job despite the hostile reactions and social stigmatisation he had suffered. Employment was an important component of a person ’ s self- respect, which was essential to his or her ability to form social and private relations. 60. The applicant also referred to a number of international instruments such as ILO Recommendation no. 200 and PACE Resolution 1536 (2007 ), (see paragraphs 32 and 34 above) which, in his submission, defined stigmatisation in the world of work and called for the protection of persons infected with the virus against any form of discrimination. 61. The applicant submitted that the Court of Cassation had “ had an obligation”, in the circumstances of the case, to rule the dismissal unfair on the ground of discrimination. He considered that he had been treated less favourably than his colleagues on account of his health. If he had not contracted the virus, his colleagues would not have refused to work with him and his employer would not have dismissed him. If it were a well- established principle in Greece that an HIV- positive employee could not be dismissed, employees who harboured prejudice would know that they could not obtain a dismissal, would not disrupt the operation of the company, and would refrain from interfering in the professional and private life of the employee in question. In the present case the motives of the employees were inseparable from those of the employer and it could not be claimed that the dismissal was not discriminatory on the pretext that the employer ’ s motives, taken alone, constituted valid grounds for dismissal. 62. The applicant maintained that if it were not recognised as unlawful to dismiss a member of a vulnerable group on the ground that his or her colleagues refused to work with him or her because of prejudice, this would lead to wide-scale discrimination and exclusion : persons prejudiced against others of a particular race, ethnic background or sexual orientation could simply refuse to work with them and their employers would accordingly dismiss them. If the courts did not intervene, the prejudices of third parties would have the effect of debarring members of a vulnerable group from the majority of private - sector jobs and establishing a form of segregation between companies which employed persons from that group and those which did not. 63. The applicant submitted that, in the present case, the Court of Cassation had not weighed the need to protect HIV-positive employees from discrimination against the need for employers to protect their interests. Moreover, the Court of Cassation ’ s judgment was particularly succinct and had not really examined the question of the proportionality of the interference. 64. The applicant submitted that there were a number of factors in the present case which would justify finding – as, moreover, the Court had done in Kiyutin ( cited above, § 63) – that the State had a narrower margin of appreciation. Those factors were : undeniable prejudice on the part of his colleagues towards HIV-positive individuals; the fact that the latter were part of a particularly vulnerable group, were victims of systematic discriminatory treatment and suffered from stigmatisation, social exclusion and marginalisation; and the fact that HIV-positive status was irreversible and often perceived as a sign of the sexual preferences of the person concerned. Where an HIV -positive employee was dismissed, the resulting stigmatisation was devastating. He or she had to face up not only to the illness but also to the detrimental effect of being dismissed on account of the disease. Such stigmatisation could make it impossible to find a new job. 65. In support of his submissions, the applicant also relied on a number of judgments of the Supreme Courts of many countries which had ruled in favour of HIV-positive employees in the workplace, and particularly Hoffmann v. South African Airways of the South African Constitutional Court ( see paragraphs 36-38 above ) which held that prejudice against that category of persons did not constitute a legitimate professional interest. 66. Relying on Bah v. the United Kingdom ( no. 56328/07, ECHR 201 1), the applicant submitted that States had to advance very weighty arguments to justify a difference in treatment based on medical conditions, such as HIV status. As the Court had stated in that judgment, a difference in treatment based on an immutable personal characteristic had to be explained in more detail than a difference in treatment based on a characteristic subject to an element of choice. In the applicant ’ s submission, HIV status was a condition which, once acquired, was unlikely to disappear. B. The Court ’ s assessment 1. Applicability of Article 8 taken in conjunction with Article 14 67. Regarding whether the facts of the case fall within the scope of Article 8, the Court reiterates that the notion of “private life” is a broad concept, not susceptible to exhaustive definition. It covers the physical and moral integrity of the person and sometimes encompasses aspects of an individual ’ s physical and social identity, including the right to establish and develop relationships with other human beings, the right to “personal development” or the right to self-determination as such ( see Schüth, cited above, § 53). 68. As in Schüth, the applicant in the present case did not complain of a direct intervention by the national authorities resulting in his dismissal, but of a failure on their part to protect his private sphere against interference by his employer, which could engage the State ’ s responsibility ( see, mutatis mutandis, Palomo Sánchez and Others, cited above, § 60). 69. The Court has already had the opportunity to rule, under Article 8, on cases of dismissal of employees on account of their private activities ( see Obst and Schüth, cited above ). Likewise, in a different context, the Court has decided that Article 8 applied in a situation where the authorities refused to grant a residence permit because the applicant was HIV-positive ( see Kiyutin, cited above ) or where the persons concerned were prohibited from working in the private sector on account of their previous employment ( see Sidabras and Džiautas, cited above ). 70. It is therefore now established that both employment matters and situations involving HIV- infected persons fall within the scope of private life. The Court cannot but conclude thus, since the HIV epidemic cannot be considered only as a medical problem given that its effects are felt in every sphere of private life. 71. Turning to the facts of the present case, the Court notes that there is a particularity which distinguishes it from all the above-mentioned cases : the dismissal from work of an HIV- positive employee. There is no doubt that while the stated ground for dismissing the applicant was to preserve a good working environment in the company, the triggering event was the announcement that he was HIV-positive. It was that event which prompted his colleagues to express their refusal to work with him, despite reassurances from the occupational -health doctor invited by the employer to explain the mode of transmission of the disease. It was that event which prompted the employer to attempt to persuade him to leave the company and the employees to openly threaten to disrupt the operation of the company as long as the applicant continued to work there. 72. It is clear that the applicant ’ s dismissal resulted in the stigmatisation of a person who, even if they were HIV-positive, had not shown any symptoms of the disease. That measure was bound to have serious repercussions for his personality rights, the respect owed to him and, ultimately, his private life. To that must be added the uncertainty surrounding his search for a new job, since the prospect of finding one could reasonably have appeared remote having regard to his previous experience. The fact that the applicant did find a new job after being dismissed does not suffice to erase the detrimental effect of his dismissal on his ability to lead a normal personal life. 73. Lastly, the Court reiterates that in Kiyutin, cited above (§ 57), it held that a person ’ s health status, including such conditions as HIV infection, should be covered – either as a form of disability or in the same way as a disability – by the term “other status” in the text of Article 14 of the Convention. 74. It follows that Article 14 of the Convention taken in conjunction with Article 8 is applicable to the facts of the present case. 2. Compliance with Article 14 taken in conjunction with Article 8 ( a) Whether the applicant was in an analogous situation to that of other employees of the company 75. According to the Court ’ s established case-law, 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 ). 76. As an employee of the company, the applicant could legitimately hope to continue working there as long as he did not commit an act capable of justifying his dismissal under domestic employment law. However, he was dismissed shortly after it was revealed that he had tested positive for HIV. 77. The Court considers that the applicant ’ s situation should be compared to that of the other employees in the company because this is relevant to an assessment of his complaint based on a difference in treatment. It is clear that the applicant was treated less favourably than any of his colleagues and that this was solely because he was HIV-positive. The Court notes that the employer ’ s concern was admittedly to restore peace in the company, but that that concern was rooted in the situation created by the attitude of the applicant ’ s colleagues towards his HIV status. ( b) Whether the difference in treatment in question was objectively and reasonably justified 78. Once an applicant has shown that there has been a difference in treatment, it is incumbent on the respondent State to prove that the difference in treatment was justified. Such justification must be objective and reasonable or, in other words, it must pursue a legitimate aim and there must be a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The Contracting States enjoy a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment. The scope of this margin will vary according to the circumstances, the subject matter and the background ( see Kiyutin, cited above, § 62). 79. In Kiyutin, the Court stated that if a restriction on fundamental rights applied to a particularly vulnerable group in society that had suffered considerable discrimination in the past, the State ’ s margin of appreciation was substantially narrower and it must have very weighty reasons for imposing the restrictions in question ( ibid. , § 63). 80. HIV-positive persons have to face up to a whole host of problems, not only medical, but also professional, social, personal and psychological, and above all sometimes to deeply rooted prejudices even among the most highly educated people. 81. The Court acknowledged this state of affairs in Kiyutin, cited above. It found that ignorance about how the disease spreads had bred prejudices which, in turn, had stigmatised or marginalised those infected with the virus. It added that, consequently, people living with HIV were a vulnerable group and that the State should be afforded only a narrow margin of appreciation in choosing measures that singled out this group for differential treatment on the basis of their HIV status ( ibid. , § 64). 82. Additionally, the Court observes that a comparative study of the legislation of thirty member States of the Council of Europe on the protection from discrimination in the employment context afforded to HIV - infected persons showed that seven States had enacted specific legislation to that end. However, in the twenty-three other States, which had not passed legislation to that end, HIV- positive persons who suffered differences in treatment in the workplace could rely on the general anti -discrimination provisions of domestic law. The decisions of the domestic courts and other human rights protection bodies in some of those States showed that they granted protection against dismissal to persons living with HIV by subsuming this into other prohibited grounds of discrimination, such as health or disability ( see paragraph 39 above ). 83. It would therefore appear that even if not all the member States of the Council of Europe have enacted specific legislation in favour of persons living with HIV, there is a clear general tendency towards protecting such persons from any discrimination in the workplace by means of more general statutory provisions applied by the courts when examining cases of dismissal of HIV-positive employees in both the public and private sectors ( see paragraphs 40-47 above ). 84. Moreover, the Court notes that the provisions governing non-discrimination contained in various international instruments grant protection to HIV- infected persons. In that context the United Nations Committee of Economic, Social and Cultural Rights has recognised HIV-positive status as a prohibited ground of discrimination. Furthermore, a growing number of specific international instruments contain provisions concerning HIV-positive persons, including in particular a prohibition on discrimination in employment, such as ILO Recommendation no. 200 concerning HIV and AIDS and the World of Work (see paragraph 32 above). 85. On the facts of the case the Court observes that the applicant ’ s employer terminated his contract owing to the pressure exerted on her by her employees, who had learnt that the applicant was HIV-positive and feared for their own health. It also notes that the employees of the company had been informed by the occupational -health doctor that their working relations with the applicant did not expose them to any risk of infection. 86. The lower courts weighed the need to protect the smooth operation of the company against the applicant ’ s justified expectation that he would be protected during the difficult period he was experiencing. They found that the scales tipped in favour of the applicant. In particular, the Court of Appeal found that the threat of disruption to the company in the present case, as a result of the overwhelming reaction of the employees, was based on a scientifically unfounded response. It observed that where an employee ’ s illness did not adversely affect working relations or the smooth operation of the company ( through absenteeism or a reduction in working capacity, for example ), it could not serve as an objective justification for terminating the contract. Moreover, the nature of the applicant ’ s job, which did not demand excessive effort, precluded the risk of a reduction in his capacity for work since, during the many years in which a person was merely HIV-positive, his or her working capacity was not substantially reduced. 87. In the present case the Court of Appeal expressly recognised that the applicant ’ s HIV status did not affect his capacity to do his job and there was no indication that he would be unable to perform his contract properly, which would have justified its immediate termination ( see paragraph 19 above ). The Court of Appeal also recognised that the company ’ s very existence was not threatened by the pressure exerted by the employees ( see paragraph 20 above ). Supposed or expressed prejudice on the part of employees could not be relied on as a pretext for terminating the contract of an HIV-positive employee. In such cases the need to protect the employer ’ s interests had to be balanced very carefully against the need to protect the interests of the employee, who was the weaker party to the contract, particularly where the latter was HIV-positive. 88. However, the Court of Cassation did not weigh up all the competing interests as carefully and thoroughly as the Court of Appeal. On rather cursory grounds, having regard to the importance and unusual nature of the questions raised by the case, it held that the dismissal was entirely justified on the ground of the employer ’ s interests, in the proper sense of the term, because the measure had been imposed in order to restore peace in the company and ensure that it continued to operate smoothly. Although the Court of Cassation did not contest the fact that the applicant ’ s infection did not adversely affect his ability to perform his employment contract, it nonetheless based its decision, justifying the employees ’ fears, on a manifestly inaccurate premise, namely, that the applicant ’ s illness was “contagious”. In doing so, the Court of Cassation ascribed to the smooth operation of the company the same meaning that the employees wished to give it, thus aligning that definition with the employees ’ subjective perception. 89. The Court does not share the Government ’ s view that a ruling by the Court of Cassation in the applicant ’ s favour would not have solved the problem because the employer would then have had to bear the cost of extended disruption to the company while the applicant would still have been faced with a hostile environment. The stakes involved for the applicant before the Court of Cassation were limited to obtaining compensation – which the Court of Appeal had awarded him – as his initial claim ( for reinstatement in the company ) had been dismissed both by the Court of First Instance and the Court of Appeal. Moreover, there could be no speculation about what the attitude of the company employees would have been if the Court of Cassation had upheld the decision of the lower courts, still less if legislation or well-established case-law existed in Greece protecting HIV-positive persons in the workplace. 90. In sum, the Court considers that the Court of Cassation did not adequately explain how the employer ’ s interests prevailed over those of the applicant and that it failed to weigh up the rights of the two parties in a manner required by the Convention. 91. It follows that the applicant was discriminated against on the basis of his health, in breach of Article 14 of the Convention taken in conjunction with Article 8. There has therefore been a violation of those provisions. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 92. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 93. The applicant claimed 6, 339. 18 euros (EUR) in respect of pecuniary damage, which was the amount awarded him by the Court of Appeal. He also claimed statutory interest accrued from the date of the Court of Appeal ’ s judgment. He claimed a further EUR 20, 000 in respect of non-pecuniary damage caused by the stigmatisation and discriminatory dismissal to which he had been subjected. 94. The Government asked the Court to dismiss the claims in respect of pecuniary damage on the ground that they concerned an economic aspect of employment and not the right to respect for private life guaranteed by Article 8. With regard to non-pecuniary damage, the applicant ’ s allegation that he had been stigmatised and discriminated against was unfounded since, shortly after being dismissed, he had found another job. If the Court were to conclude that there had been a violation of the Convention, that finding would be sufficient just satisfaction. 95. The Court reiterates that it has found a violation of Article 14 of the Convention taken in conjunction with Article 8 on account of the fact that the Court of Cassation failed to weigh up the rights of the two parties in a manner required by the Convention. It observes that the Court of Appeal had determined the amount to be awarded to the applicant in unpaid salaries at EUR 6, 339. 18, and awards him that sum in respect of pecuniary damage. It also considers that he should be awarded EUR 8, 000 in respect of non-pecuniary damage. B. Costs and expenses 96. The applicant claimed EUR 6, 000 in fees for the two lawyers who had represented him before the Court ( sixty hours ’ work at EUR 100 per hour ). 97. The Government asked the Court to dismiss the claim because it had not been submitted together with the necessary supporting documents. 98. 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 were also reasonable as to quantum ( see Iatridis v. Greece (just satisfaction) [GC], no. 31107/96, § 54, ECHR 2000 ‑ XI ). The Court observes that the applicant did not submit the necessary documents in support of his claim for costs and expenses. Accordingly, the claim is rejected. C. Default interest 99. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that the applicant had been a victim of discrimination on account of his health status, in breach of Article 8 (right to private life) taken together with Article 14 (prohibition of discrimination) of the Convention. It observed in particular that the domestic courts had based their decision to reject his complaint about his dismissal on clearly inaccurate information, namely the contagious nature of his illness. They had provided insufficient explanation of how the employer’s interests outweighed those of the applicant, thus failing to strike the correct balance between the rights of both parties. |
1,071 | Right to respect for private and family life, home and correspondence (Article 8 of the Convention) | THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 ( c), ARTICLE 8 AND ARTICLE 13 OF THE CONVENTION 21. The applicants complained that the procedure for the search and seizure of documents at their place of business had breached professional confidentiality and infringed their defence rights. They also complained, regardless of the nature of the Court of Cassation ’ s supervision in France, that an appeal on points of law was not an effective remedy by which to complain of interferences with the right to respect for one ’ s home. They relied on Article 6 §§ 1 and 3 ( c) and Articles 8 and 13 of the Convention, the relevant provisions of which read as follows : Article 6 §§ 1 and 3 ( c) “ 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: ... ( 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; ... ” 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, 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.” A. The parties ’ submissions 1. The Government 22. The Government submitted that the complaints under Article 6 of the Convention should be dismissed as being incompatible ratione materiae with the provisions of the Convention, since tax disputes did not fall within the scope of Article 6 under its civil head ( they cited Ferrazzini v. Italy [GC], no. 44759/98, ECHR 2001-VII) and since the criminal head was unconnected to the facts of the case. 23. As to the merits, the Government pointed out that the procedure at issue had been authorised by a judge who, together with the Court of Cassation, had also supervised it. They further noted that the record of the search showed that the liberties and detention judge had been contacted at the time of the search of the premises. They also stated that the Court of Cassation ’ s judgment did not constitute a “shift” in the case-law, but on the contrary confirmed a position that was already established and had subsequently been maintained. The Government submitted that there had been no infringement of the rights of the defence or any breach of professional secrecy; on the contrary, the Court of Cassation ’ s judgment of 11 December 2002 had struck a fair balance between the principle of individual liberty and the requirements of combating tax fraud. They lastly stated that the judge had observed that the applicants had been retained to assist and represent Clinique Les Roches Claires and had acted in that capacity on various occasions during the tax proceedings involving their client. 24. With regard to Article 8 of the Convention, the Government submitted that the applicants had not exhausted domestic remedies since, in addition to an appeal on points of law, which they had lodged, two other remedies had been available to them: the first under Article 9 of the Civil Code, which guaranteed the right to respect for one ’ s private life, and the second by means of an action for damages against the State, through which they could have established, for example, that public officials had exceeded their authority and committed an error. 25. As to the merits, the Government did not dispute that there had been interference with the applicants ’ right to respect for their home, but contended that the interference had been in accordance with the law, namely Article L. 16 B of the Code of Tax Procedure, and had pursued legitimate aims by seeking to protect the economic well-being of the country and the prevention of crime. Lastly, they submitted that the interference had been necessary in a democratic society ( citing Keslassy v. France ( dec. ), no. 51578/99, ECHR 2002-I). The warrant authorising the search had fully satisfied the requirements laid down by domestic legislation and European case - law, with special procedural guarantees. 26. Finally, as regards the complaint under Article 13 of the Convention, the Government referred to their arguments in relation to the complaint under Article 8 and their references to domestic law and concluded that this complaint was manifestly ill-founded, all the more so because the Convention did not require a right of appeal, the existence of an appeal on points of law in itself being in conformity with the provisions of Article 13. They also pointed out that the Court had held that an appeal on points of law was a remedy that had to be attempted ( citing Civet v. France [GC], no. 29340/95, ECHR 1999-VI); the applicants had therefore used the remedy available to them which had enabled them to argue that there had been errors of law that could have affected the authorisation for the search of their premises and irregularities capable of rendering it void. 2. The applicants 27. The applicants submitted that the objections raised by the Government warranted no comment on their part, and reiterated the contents of their initial application. 28. As to the merits, they argued that the Court of Cassation had shifted from its earlier case - law, since it had referred to “ sufficient evidence of a suspicion of tax fraud” without indicating who was suspected, whereas the earlier case - law of its Criminal Division had required the lawyer to have taken part in the fraud. They contended that such a position undermined the protection of the rights of the defence, and consequently the professional secrecy of lawyers, which should be applicable as regards any matter coming under the Convention. 29. The applicants complained that it was possible to carry out searches of a lawyer ’ s premises where there was no suspicion that the lawyer had been involved in fraud. The first applicant stated in addition that he was merely his client ’ s lawyer – and, moreover, purely for matters of litigation and not legal advice – which meant that a number of documents covered by professional secrecy and required for the company ’ s defence were to be found at his practice. 30. The applicants also complained of the lack of an effective remedy, contending that an appeal on points of law – the only remedy available against orders made on the basis of Article L. 16 B of the Code of Tax Procedure – did not constitute an effective remedy on account of the content and scope of the review conducted by the Court of Cassation. B. The Court ’ s assessment 1. Admissibility 31. As regards both the plea of inadmissibility ratione materiae raised by the Government and their argument that domestic remedies had not been exhausted, the Court observes that it has already found that Article 6 § 1 was applicable and dismissed pleas of inadmissibility in a similar case ( see Ravon v. France, no. 18497/03, §§ 24 - 26 and 35, 21 February 2008). The pleas raised in this case must therefore also be dismissed. 32. Considering, further, that the application is not manifestly unfounded within the meaning of Article 35 § 3 of the Convention and is not inadmissible on any other grounds, the Court declares the application admissible. 2. Merits ( a) Complaint under Articles 6 and 13 of the Convention on account of the lack of effective judicial review 33. Where, as is the case here, Article 6 § 1 applies, it constitutes a lex specialis in relation to Article 13: the safeguards of Article 6 § 1 implying the full panoply of a judicial procedure, are stricter than, and absorb, those of Article 13 (see, for example, Brualla Gómez de la Torre v. Spain, 19 December 1997, § 41, Reports of Judgments and Decisions 1997-VIII, and Kudła v. Poland [GC], no. 30210/96, § 146, ECHR 2000-XI). It is therefore appropriate to examine this complaint under Article 6 § 1 alone, and hence to ascertain whether the applicants had access to a “ tribunal” in order to receive a decision on their “dispute”, following proceedings meeting the requirements of this provision. 34. On this point, the Court observes that it has already ruled that the procedure provided for and outlined in Article L. 1 6 B of the Code of Tax Procedure does not meet the requirements of Article 6 § 1 of the Convention ( see Ravon, cited above, §§ 28 - 35). It sees no reason to depart from that finding in the instant case. 35. Accordingly, there has been a violation of Article 6 § 1 of the Convention. ( b) Complaint alleging a breach of professional secrecy 36. The Court reiterates, firstly, that the term “ home ” appearing in Article 8 may extend to the offices of a member of a profession, for instance a lawyer ( see Niemietz v. Germany, 16 December 1992, § 30, Series A no. 251-B, and Roemen and Schmit v. Luxembourg, no. 51772/99, § 64, ECHR 2003-IV). 37. Consequently, it considers that the search of the applicants ’ practice and the seizures carried out amount to interference with the exercise of their rights under paragraph 1 of Article 8 of the Convention. 38. It considers that such interference was “ in accordance with the law ”. Article L. 16 B of the Code of Tax Procedure sets out the conditions that must be met in the event of a search, and the provisions of Articles 56 and 56-1 of the Code of Criminal Procedure, taken together, make express provision for observance of professional secrecy and the professional premises or private home of a lawyer. Furthermore, the applicants did not complain that the measures taken had lacked a legal basis, but that they were disproportionate and unnecessary in the circumstances of the case. 39. The Court finds furthermore that the interference pursued a “legitimate aim”, that is, the prevention of public disorder and crime. 40. As to whether the interference was “necessary”, the Court reiterates that “ 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 Crémieux v. France, 25 February 1993, § 38, Series A no. 256-B, and Roemen and Schmit, cited above, § 68 ). 41. The Court considers that searches and seizures at the premises of a lawyer undoubtedly breach professional secrecy, which is the basis of the relationship of trust existing between a lawyer and his client. Furthermore, the safeguarding of professional secrecy is in particular the corollary of the right of a lawyer ’ s client not to incriminate himself, which 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” ( see J.B. v. Switzerland, no. 31827/96, § 64, ECHR 2001-III; see also, among other authorities, Funke v. France, 25 February 1993, § 44, Series A no. 256-A ). 42. Accordingly, although domestic law may make provision for searches of the practices of lawyers, it is essential that such searches are accompanied by particular safeguards. Likewise, the Convention does not prohibit the imposition on lawyers of certain obligations likely to concern their relationships with their clients. This is the case in particular where credible evidence is found of the participation of a lawyer in an offence (paragraph 15 above), or in connection with efforts to combat certain practices (paragraphs 17 - 18 above). On that account, however, it is vital to provide a strict framework for such measures, since lawyers occupy a vital position in the administration of justice and can, by virtue of their role as intermediary between litigants and the courts, be described as officers of the law. 43. In the instant case, the Court notes that the search was accompanied by special procedural safeguards, since it was carried out in the presence of the chairman of the Bar Association of which the applicants were members. Furthermore, the presence of the chairman of the Bar Association and the observations concerning the safeguarding of professional secrecy, which the latter felt obliged to make with regard to the documents to be seized, were mentioned in the report on the operations. 44. On the other hand, besides the fact that the judge who had authorised the search was not present, the presence of the chairman of the Bar Association and his specific objections were insufficient to prevent the actual inspection of all the documents at the practice, or their seizure. As regards in particular the seizure of the first applicant ’ s handwritten notes, the Court notes that it is not disputed that these were the lawyer ’ s personal documents and subject to professional secrecy, as maintained by the chairman of the Bar Association. 45. Furthermore, the Court notes that the search warrant was drawn up in broad terms, the decision being limited to ordering the searches and seizures required to disclose evidence of misconduct at certain places at which documents and data carriers relating to the suspected fraud might be found, in particular at the applicants ’ place of business. Accordingly, the inspectors and police officers were given extensive powers. 46. Lastly, and most importantly, the Court notes that the purpose of the search at issue was to discover at the premises of the applicants, purely in their capacity as the lawyers of the company suspected of fraud, documents which could establish the existence of such fraud on the company ’ s part and to use such documents in evidence against it. At no time were the applicants accused or suspected of having committed an offence or being involved in any fraud committed by their client. 47. The Court therefore notes that in the present case, in the context of a tax inspection into the affairs of a company that was the applicants ’ client, the authorities targeted the applicants solely because of the difficulties encountered both in carrying out the necessary tax inspections and in finding “accounting, legal and corporate documents” confirming the suspicion that the client company was involved in fraud. 48. In the light of the foregoing, the Court finds that, in the circumstances of the case, the search and seizures carried out at the applicants ’ premises were disproportionate to the aim pursued. 49. There has therefore been a violation of Article 8 of the Convention. 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 applicants sought payment of 30, 000 euros (EUR) in respect of non-pecuniary damage. 52. The Government submitted that a finding by the Court of a violation would in itself constitute sufficient redress for any non-pecuniary damage sustained by the applicants, any financial compensation being merely symbolic. 53. The Court shares the Government ’ s view as regards the applicant company. However, it considers that the finding of a violation is not sufficient to afford redress for the non-pecuniary damage sustained by Mr André. Ruling on an equitable basis as required by Article 41, it awards him EUR 5, 000 under this head. B. Costs and expenses 54. The applicants sought reimbursement of the costs they had incurred in presenting their case. They produced a bill for EUR 14, 352 ( comprising EUR 12, 000 in fees and EUR 2, 352 in VAT) issued by their representative in respect of the proceedings before the Court of Cassation and the Court. 55. The Government submitted that any amount awarded should not exceed EUR 2 000. 56. According to the Court ’ s case - law, an applicant can only seek reimbursement of costs and expenses in so far as they have been actually and necessarily incurred and are reasonable as to quantum. Furthermore, where the Court finds that there has been a violation of the Convention, it awards the applicant only those costs and expenses that have been incurred before the national courts for the prevention or redress of the violation. Having regard to the information available to it and the aforementioned criteria, the Court, ruling on an equitable basis as required by Article 41, awards them jointly EUR 10, 000 under this head. C. Default interest 57. 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 recalled that it was essential for searches at a lawyer’s office to be attended by special safeguards. It was also vital to provide a strict regulatory framework for such measures. The Court noted that in the applicant’s case the search had been attended by a special safeguard since the chairman of the Marseilles Bar Association had been present. On the other hand, apart from the fact that the judge who had authorised the search was not present, the presence of the chairman of the bar and his protests were not adequate to prevent the effective disclosure of all the documents at the practice or their seizure. In addition, the tax inspectors and the senior police officer had been given extensive powers by virtue of the broad terms of the search warrant. Lastly, the Court noted that in the context of a tax inspection into the affairs of the applicants’ client company the tax inspectorate had targeted the applicants for the sole reason that it was finding it difficult to carry out the necessary checks and to find documents capable of confirming the suspicion that the company was guilty of tax evasion, although at no time had the applicants been accused or suspected of committing an offence or participating in a fraud committed by their client. Accordingly, considering that the search and seizures had been disproportionate to the aim pursued, the Court held that there had been a violation of Article 8 (right to respect for home) of the Convention. It also found a violation of Article 6 § 1 (right of access to a court) of the Convention on account of the lack of effective judicial review. |
53 | Applications lodged by the abducting parent | II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE A. Protection of the rights of the child 1. United Nations Convention on the Rights of the Child 48. The relevant provisions of the Convention on the Rights of the Child of 20 November 1989, which came into force in respect of Switzerland on 26 March 1997, read as follows: Preamble “The States Parties to the present Convention, ... Convinced that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community, Recognizing that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding, ... Have agreed as follows: ...” Article 7 “1. The child shall be registered immediately after birth and shall have the right from birth to ... know and be cared for by his or her parents. ...” Article 9 “1. States Parties shall ensure that a child shall not be separated from his or her parents against their will ...” Article 14 “1. States Parties shall respect the right of the child to freedom of thought, conscience and religion. 2. States Parties shall respect the rights and duties of the parents and, when applicable, legal guardians, to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child. ...” 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. Concept of the child’s “best interests” 49. The concept of the child’s best interests stems from the second principle of the Declaration of the Rights of the Child adopted by the United Nations on 20 November 1959. It provides as follows: “The child shall enjoy special protection, and shall be given opportunities and facilities, by law and by other means, to enable him to develop physically, mentally, morally, spiritually and socially in a healthy and normal manner and in conditions of freedom and dignity. In the enactment of laws for this purpose, the best interests of the child shall be the paramount consideration.” 50. The term was used again in 1989 in Article 3 § 1 of the Convention on the Rights of the Child: “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.” 51. Neither the working group during the drafting of the Convention nor the Committee on the Rights of the Child has developed the concept of the child’s best interests or proposed criteria for their assessment, in general or in relation to specific circumstances. They have both confined themselves to stating that all values and principles of the Convention should be applied to each particular case (see Rachel Hodgkin and Peter Newell (eds.), Implementation Handbook for the Convention on the Rights of the Child, United Nations Children’s Fund 1998, p. 37). In addition, the Committee has emphasised on various occasions that the Convention must be considered as a whole, with the relationship between the various articles being taken into account. Any interpretation must be consistent with the spirit of that instrument and must focus on the child as an individual having civil and political rights and its own feelings and opinions (ibid., p. 40). 52. The “Guidelines on Determining the Best Interests of the Child” were issued by the United Nations High Commissioner for Refugees (UNHCR). They provide, inter alia : “The term ‘best interests’ broadly describes the well-being of a child. Such well-being is determined by a variety of individual circumstances, such as the age, the level of maturity of the child, the presence or absence of parents, the child’s environment and experiences.” (UNHCR Guidelines on Determining the Best Interests of the Child, May 2008) 53. The principle of “the child’s best interests” is also embodied in Articles 5 and 16 of the United Nations Convention on the Elimination of All Forms of Discrimination against Women. Article 5 (b) reads as follows: “States Parties shall take all appropriate measures: ... (b) To ensure that family education includes a proper understanding of maternity as a social function and the recognition of the common responsibility of men and women in the upbringing and development of their children, it being understood that the interest of the children is the primordial consideration in all cases.” 54. Under Article 16 § 1 (d) of that Convention, States are committed to ensuring the following, with regard to equality between men and women: “[t]he same rights and responsibilities as parents, irrespective of their marital status, in matters relating to their children; [and] in all cases the interests of the children shall be paramount”. 55. Even though the principle does not appear in the International Covenant on Civil and Political Rights, the United Nations Human Rights Committee in its General Comments Nos. 17 and 19 referred to “the paramount interest” of the child in the event of the separation or divorce of its parents. In its General Comment 17 (adopted at its 35th Session, 1989) the Committee stated that if a marriage is dissolved, steps should be taken, keeping in view the paramount interest of the children, to guarantee, so far as is possible, personal relations with both parents. For abandoned children, special measures must be taken in order to enable them to develop in conditions that most closely resemble those characterising the family environment. In its General Comment No. 19 (adopted at its 39th Session, 1990) the Committee indicated that any discriminatory treatment in regard to divorce, child custody, visiting rights, etc., must be prohibited, unless the paramount interest of the child required otherwise. 56. The European Union’s Charter of Fundamental Rights, which became legally binding with the entry into force of the Lisbon Treaty on 1 December 2009, contains the following Article: Article 24 – The rights of the child “1. Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity. 2. In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration. 3. Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests.” B. Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980 (“the Hague Convention”) 1. Text of the instrument 57. The relevant provisions of the Hague Convention, which came into force in respect of Switzerland on 1 January 1984, 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: ... (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 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. Article 21 An application to make arrangements for organising or securing the effective exercise of rights of access may be presented to the Central Authorities of the Contracting States in the same way as an application for the return of a child. The Central Authorities are bound by the obligations of cooperation which are set forth in Article 7 to promote the peaceful enjoyment of access rights and the fulfilment of any conditions to which the exercise of those rights may be subject. The Central Authorities shall take steps to remove, as far as possible, all obstacles to the exercise of such rights. The Central Authorities, either directly or through intermediaries, may initiate or assist in the institution of proceedings with a view to organising or protecting these rights and securing respect for the conditions to which the exercise of these rights may be subject.” 2. Consideration of the child’s “best interests” in the context of Article 13, sub-paragraph (b), of the Hague Convention 58. The Explanatory Report by Ms Elisa Pérez-Vera on the drafting of the Convention states as follows: “... since one factor characteristic of the situations under consideration consists in the fact that the abductor claims that his action has been rendered lawful by the competent authorities of the State of refuge, one effective way of deterring him would be to deprive his actions of any political or juridical consequences. The Convention, in order to bring this about, places at the head of its objectives the restoration of the status quo ...”. (paragraph 16, p. 429) 59. However, the Hague Convention contains five exceptions to the principle of the child’s prompt return, among which the most commonly invoked exception is that of Article 13, sub-paragraph (b). 60. The French Court of Cassation, the House of Lords and the Finnish Supreme Court have all expressly incorporated the concept of the “child’s best interests” into their application of the exception based on a “serious risk” within the meaning of Article 13, sub-paragraph (b), of the Hague Convention. 61. In a case from 2005, the French Court of Cassation stated the following: “... under Article 13, sub-paragraph (b), an exception can be made to the child’s prompt return only if there is a grave risk of harm or of the creation of an intolerable situation;” and “by virtue of Article 3 § 1 of the [United Nations] Convention on the Rights of the Child, a provision that is directly applicable before the French courts, such circumstances must be assessed with the child’s best interests as the primary consideration”. (Court of Cassation, First Civil Division, 14 June 2005, appeal no. 04 ‑ 16942) 62. That court thus upheld a judgment of the Aix-en-Provence Court of Appeal of 13 May 2004, finding as follows: “... the child’s best interests [had been] taken into consideration by the Court of Appeal, which [had] accordingly reached the conclusion ... that it was appropriate to order the prompt return of the child under the Hague Convention.” 63. The Finnish Supreme Court conducted a similar assessment in applying the exception under Article 13, sub-paragraph (b), indicating as follows: “... the court had pointed out that a grave risk of harm would not exist if the mother returned to France with her children and ensured that their living conditions were adapted according to their best interests ...” ([ 27 December 1996] Supreme Court of Finland 1996:151, S96/2489) 64. In a case examined on 16 November 2006 by the House of Lords concerning the abduction of a child from Romania to the United Kingdom, Lord Hope observed: “... it is impossible to believe that the child’s best interests would be served by his return forthwith to Romania.” ( In re D (a child), [2006] UKHL 51, [2007] 1 AC 619) 3. The concept of “rights of custody” under the Hague Convention 65. Article 5 (a) of the Hague Convention defines custody rights as “rights relating to the care of the person of the child, and, in particular, the right to determine the child’s place of residence”. The Convention recognises that custody 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 the State in which the child had its habitual residence immediately before removal or retention (Article 3 in fine ). Furthermore, the Explanatory Report on the Convention emphasises the drafters’ intention to protect all the ways in which custody of children can be exercised and recognises that there can be wrongful removal or retention even if parents have joint custody of their child: “In terms of Article 3, custody rights may have been awarded to the person who demands that their exercise be respected, and to that person in his own right or jointly. ... Now, from the Convention’s standpoint, the removal of a child by one of the joint holders without the consent of the other, is equally wrongful, and this wrongfulness derives in this particular case, not from some action in breach of a particular law, but from the fact that such action has disregarded the rights of the other parent which are also protected by law, and has interfered with their normal exercise” (Explanatory Report by Elisa Pérez-Vera, Acts and Documents of the Fourteenth Session, vol. III, Child Abduction, Hague Conference on Private International Law, paragraph 71, pp. 447-48) 66. The drafters of the Convention created an autonomous definition of custody rights quite apart from domestic-law interpretations of that concept. This autonomous nature was confirmed in the “Overall Conclusions of the Special Commission of October 1989 on the operation of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction” (§ 9, p. 3), which stated as follows: “... ‘rights of custody’ as referred to in the Convention on the Civil Aspects of International Child Abduction constitute an autonomous concept, and thus such rights are not necessarily coterminous with rights referred to as ‘custody rights’ created by the law of any particular country or jurisdiction thereof. ... [T]he award of what is called ‘custody’ to only one parent under domestic law, does not necessarily mean that all ‘rights of custody’ within the intent of the Hague Convention have been granted to that parent. Since each domestic legal system has its own terminology for referring to rights which touch upon the care and control of children, and even some English-language systems do not employ the term ‘custody’, it is necessary to look to the content of the rights and not merely to their name.” 67. The autonomous meaning of “rights of custody” was further confirmed during the second meeting of the Special Commission when the following conclusion, among others, was adopted: “... the expression ‘rights of custody’ ... does not coincide with any particular concept of custody in a domestic law, but draws its meaning from the definitions, structure and purposes of the Convention.” (Report of the Second Special Commission Meeting to review the operation of the Hague Convention on the Civil Aspects of International Child Abduction held on 18-21 January 1993, p. 4) 68. In addition, according to the Explanatory Report, the Convention is engaged only by issues relating to breaches of custody rights. It does not in principle concern situations arising from breaches of access rights, in particular where the child is taken abroad by its custodian (Explanatory Report, paragraph 65). 4. Domestic case-law concerning the concept of “rights of custody” within the meaning of the Hague Convention 69. The Hague Convention provides no enforcement mechanism or oversight body to ensure that Contracting States implement it. Therefore, it is possible that the case-law of domestic courts relating to the Hague Convention may differ from one Contracting State to another. In practice, there is a lack of consistency in the interpretation of the various judicial bodies as regards the Hague Convention’s distinction between custody rights and access rights, more specifically where they have to decide whether to grant the remedy of return to non-custodial parents who hold access rights. 70. However, there seems to be a trend towards a wide interpretation of wrongful removal or retention, thus broadening the scope of custody rights to allow types of parenting other than the holding of custody rights to benefit from the Convention’s protection. 71. In the case of C. v. C. (England and Wales Court of Appeal; [1989] 1 WLR 654, 657-58), for example, a custodial parent had removed a child from Australia in breach of a restraining order (also called a ne exeat order, prohibiting a child’s removal from a given geographical area). In that case the child could not be removed without the consent of the non-custodial parent. The court found that the Convention’s judicial remedy of return applied. They justified this reasoning by equating the ability to grant or withhold consent for relocation with a custodial “right to determine the child’s place of residence”. 72. The Family Court of Australia took the same approach in the case of José García Resina, where a father lodged an application under the Convention for the return of his children after they had been taken to France by their maternal grandparents ( José García Resina and Muriel Ghislaine Henriette Resina, [1991] FamCA 33). The Australian court considered both a custody order, which gave the father “reasonable access” to the youngest child, and an injunction restraining both the mother and the father from removing the children from Australia. It ultimately ordered the return of the children pursuant to the Convention because their removal had violated the father’s custody rights that had been created by the restraining order. Similarly, the Israeli Supreme Court found that a custody agreement between parents contained a mutual consultation clause for major changes and unusual events, which implicitly included decisions on the residence of the child ( Foxman v. Foxman, Israeli Supreme Court, 1992). The court thus considered that the father had rights of custody within the meaning of the Convention. 73. It appears that other national courts, in particular in common-law countries, have largely cited the C. v. C. case and have followed its general holding that if the custodial parent needs permission from the court or the non-custodial parent before removing the child from a country, a removal without such permission may be regarded as “wrongful” within the meaning of Article 3 of the Hague Convention (see Re F, England and Wales Court of Appeal, [1995] 3 WLR 339, where the father had rights of custody, even though the mother had a court order giving her temporary “care and control” and there was no order barring the child’s removal). 74. However, the practice of domestic courts is not homogeneous. Thus, for example, the United States Court of Appeals found that access rights coupled with a ne exeat clause did not constitute “rights of custody” within the meaning of the Hague Convention ( Croll v. Croll, 229 F.3d 133, 143, Second Circuit, 2000). C. Domestic legislation relevant to the implementation at national level of the above-mentioned Conventions 1. New Swiss Federal Act on International Child Abduction and the Hague Conventions on the Protection of Children and Adults 75. On 21 December 2007 the Swiss Federal Parliament enacted the “Federal Act on International Child Abduction and the Hague Conventions on the Protection of Children and Adults”, for the purpose of clarifying certain notions, especially in relation to the application of the Hague Convention of 1980. The Act came into force on 1 July 2009. The sections of the Act referred to by the applicants read as follows: Section 5: Return and interest of the child “The return of a child places him or her in an intolerable situation, within the meaning of Article 13, sub-paragraph (b), of the Hague Convention, in particular where the following conditions are met: (a) placement with the parent who lodged the application is manifestly not in the child’s interests; (b) the abducting parent is not, given the circumstances, in a position to take care of the child in the State where the child was habitually resident immediately before the abduction, or this cannot reasonably be required of that parent; and (c) placement in the care of a third party is manifestly not in the child’s interests.” Section 6: Protective measures “The court dealing with the application for the return of the child shall decide, as required, on the child’s personal relations with his or her parents and order the measures necessary to ensure his or her protection. Where the application for return has been received by the Central Authority, the competent court may, at the request of the Central Authority or any of the parties, order the appointment of a representative or a guardian for the child, or take other protective measures even if the application for return is not yet pending before the court.” 76. In connection with the federal decree concerning this Act, the Federal Council submitted to Parliament a “dispatch” ( Feuille Fédérale 2007, pp. 2433-682), of which the relevant passages read as follows: “ 6.4 Return and interests of the child (section 5) In order to ensure an application of the Hague Convention of 1980 that is better adapted to the interests of the child, it is necessary for the legislature to specify the various situations in which the return of the child can no longer be taken into consideration because it would place him or her in a manifestly intolerable situation. The rule in section 5 is not supposed to supersede the provision of Article 13, sub-paragraph (b), of the Hague Convention of 1980. The term ‘in particular’ means that the list merely enumerates a few situations which – although essential – do not preclude reliance on the clause provided for in the Convention. Firstly, sub-paragraph (a) refers to the situations in which the child’s accommodation by the parent who requested the return is manifestly not in the child’s interests. If that is not so, in particular where the parent who lodged the application has an exclusive right of custody or is the only one who could be granted such responsibility, there will not, in principle, be any cause for fear that the child will be placed in an intolerable situation on his or her return and therefore there is no reason why the return should be refused. This will not be the case where it appears obvious to the court that the party lodging the application would not be able to take care of the child. Sub-paragraph (b) governs cases in which the appropriateness of the child’s return can be assessed only from the standpoint of his or her relationship with the abducting parent. Where the child’s accommodation by the parent who requested the return is manifestly not to be taken into consideration, the problem of his or her return to the State of origin will be addressed differently, depending on whether the person who wrongfully removed or retained the child (usually the mother) is or is not in a position to return to that State. If the said parent is not able to do so because, for example, he or she faces a prison sentence that would lead to separation from the child or because the parent has very close family ties in Switzerland (for example following remarriage or on account of a situation of hardship suffered by another family member living in Switzerland), the child’s psychological and physical stability may be at stake, because the child would, after the return, be obliged to live apart from his or her parents. Such separation is tolerable only in exceptional cases and must constitute an ultima ratio. Second type of situation: where, given all the circumstances, it cannot reasonably be required of the abducting parent that he or she take care of the child in the State where the child had his or her habitual residence immediately before the abduction (section 5(b)). It is not sufficient for the parent who wrongfully removed or retained the child to state that he or she refuses to return to that State. He or she would also have to be in a situation of hardship such that he or she could not reasonably be expected to return to his or her place of prior residence to await there, with the child, the court’s final decision on the granting of custody. In that context, we have in mind especially those cases in which the mother cannot be guaranteed safe or affordable accommodation outside the home of her former partner. One must further take into account those cases in which the parent who has requested the return of the child will not resume the exercise of the right of custody and will not obtain it by court order, whilst the abducting parent is clearly the child’s primary carer. In such a case the child would only be taken to the State of origin to await the final attribution of the right of custody to the abducting parent, before coming back to Switzerland again with that parent. Such coming and going would ultimately only have served the purpose of bringing the case before the authorities of the former State of residence. Such a solution would be inadmissible according to the spirit and purpose of the Hague Convention, because it would be incompatible with the child’s interests. But the situation would have to be beyond doubt for the Swiss court dealing with the request for return. Unless the circumstances can be established clearly, the court will have to rule that the return to the parent’s State of origin is bearable and that, accordingly, the child will not be placed in an intolerable situation such as to justify a decision denying the return under Article 13, sub-paragraph (b), of the Hague Convention. Sub-paragraph (c) refers to placement with third parties. If the child’s return were to lead to separation from the parent who wrongfully removed or retained the child (because return is impossible for that parent or cannot reasonably be required of him or her), it could only be carried out in appropriate conditions if the child were placed with a third party in the State of origin. However, such a solution should only be sought, with the resulting possibility for the competent Swiss court to order the child’s return, if placement with a third party is not manifestly contrary to the child’s interests. That third condition can be satisfied only if separation from the parent remaining in Switzerland is bearable for the child – which may be the case where he or she has an antagonistic relationship with that parent – and if the foster family receiving the child can provide proper guarantees as to the protection and normal upbringing of the child. In any event, such a situation should only be envisaged as an ultima ratio. It must further be noted that, for the return to be compatible with the child’s interests and, in particular, for the conditions of Article 13 of the Hague Convention to be fulfilled, the authority ruling on the matter has to be apprised of the situation prevailing in the State of origin and of the legal provisions in force there. Thus, the parties, and in particular the parents, have a duty to participate in the establishment of the facts. The hearing of the parties in person by the court (section 9(1) and (2)) is therefore of great importance. The new provisions concerning the procedure and the cooperation with the competent authorities of the State of origin also play an essential role. The court must be able to verify whether, and in what manner, it is possible to ensure the child’s return (section 10(2)). If it does not succeed in that task, or succeeds only partially, it will not be in a position to weigh up all the consequences that a return might have for the child. The same will be true if it does not succeed in obtaining from the local authorities any reliable assurances as to the conditions of the child’s reception and protection, in particular when there is some doubt about the requesting parent’s capacity to look after the child properly. In this respect, section 10 is thus directly related to the practical application of section 5.” 2. Concepts of “custody” and “guardianship” in Israeli law 77. The concept of guardianship is defined in Chapter 2 of the Capacity and Guardianship Law 1962. The term custody is not defined as such but is mentioned. 78. Section 14 of that Law provides that “[p]arents shall be the natural guardians of their minor children”. In Israel, parents, whether married, divorced or unmarried, are joint and equal guardians of their children. The term “guardianship” may be regarded as equivalent to “parental authority” in other jurisdictions. 79. Guardianship is an automatic right which both parents acquire and can only be restricted or removed in exceptional circumstances (where a Magistrate’s Court adopts one of the measures mentioned in section 3(3) or (4) of the Youth (Care and Supervision) Law). This rule is set out in section 27 of the Law. 80. Section 15 defines and describes the role of parents in Israeli law and outlines what parental guardianship entails in the following terms: “The guardianship of the parents shall include the duty and the right to take care of the needs of the minor, including his education, studies, vocational and occupational training and work and to preserve, manage and develop his property; it shall also include the right to the custody of the minor, to determine his place of residence and the authority to act on his behalf.” 81. Section 17 sets the standard of parents’ duties. It states that in exercising their guardianship, “parents [must] act in the best interests of the minor in such manner as devoted parents would act in the circumstances”. 82. There is a general presumption that parents should cooperate in taking decisions relating to their guardianship (section 18). However, where no agreement is reached, they may refer to the court to decide the issue (section 19). 83. Section 24 provides that, when parents live apart, they may reach an agreement as to: who is going to have guardianship of the minor, wholly or in part; who is going to have custody of the minor; and what rights the other parent is going to have, in particular as regards contact with the child. Such an agreement is subject to the approval of the court. 84. Under section 25, if the parents cannot reach such an agreement these issues may be determined by the court having regard to the best interests of the child. 85. Section 25 further creates a presumption of custody in favour of the mother for children under six years old unless there are special reasons for directing otherwise. 86. Accordingly both parents share joint decision-making authority regarding their child’s place of residence. One parent cannot remove the child from Israel without the permission of the other parent or of a court. If one parent wishes to remove the child from Israel without the other parent’s consent, then the parent wishing to leave must apply to the Israeli courts for a relocation order and an order for custody of the child. THE LAW I. SCOPE OF THE CASE BEFORE THE GRAND CHAMBER 87. In their memorial before the Grand Chamber the applicants complained of a violation of their right to respect for their family life within the meaning of Article 8 of the Convention. In addition, they argued that the enforcement of the second applicant’s return without the first applicant would constitute inhuman treatment prohibited by Article 3 and a violation of Article 9, since the second applicant’s father could be expected to subject him to the precepts of the “Lubavitch” community, which the applicants described as “ultra-orthodox” and from which the first applicant wished to distance her child permanently. 88. The Court notes, however, that the Chamber declared inadmissible the complaints under Articles 3 and 9 of the Convention for failure to exhaust domestic remedies. Accordingly, the Grand Chamber cannot examine them (see, among other authorities, K. and T. v. Finland [GC], no. 25702/94, § 141, ECHR 2001 ‑ VII). II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 89. The applicants alleged that there had been a violation of their right to respect for their family life under Article 8 of the Convention, which reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 1. Applicability of Article 8 90. The Court refers to the following findings in the Chamber judgment: “79. Turning now to the circumstances of the present case, the Court first observes that, for the applicants, the possibility of continuing to live together is a fundamental consideration which clearly falls within the scope of their family life within the meaning of Article 8 of the Convention, and that Article is therefore applicable (see, among many other authorities, Maire v. Portugal, no. 48206/99, § 68, ECHR 2003 ‑ VII). ... 81. Moreover, it is not in dispute that the Federal Court’s order for the child’s return constituted for the two applicants an ‘interference’ within the meaning of the second paragraph of Article 8 of the Convention.” 91. The Grand Chamber subscribes to those findings, which are not in dispute between the parties. It must therefore be ascertained whether the impugned interference met the requirements of the second paragraph of Article 8, that is to say whether it was “in accordance with the law”, pursued one or more legitimate aims and was “necessary in a democratic society” in order to fulfil those aims. 2. Justification for the interference (a) Legal basis (i) The Chamber judgment 92. The Chamber found as follows (see paragraph 80 of the judgment): “The Court notes that under 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, alone or jointly, under the law of the State in which the child was habitually resident immediately before the removal or retention (Article 3, first paragraph, sub-paragraph (a)). The notion of ‘rights of custody’ within the meaning of the Hague Convention includes rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence (Article 5, sub-paragraph (a)). The Court takes the view that in the present case the child’s removal to Switzerland was wrongful, since, in accordance with the decision of 27 June 2004, the father exercised ‘guardianship’ jointly with the mother and in the Israeli legal system this included the right to determine the child’s place of residence. Moreover, the removal of Noam rendered illusory, in practice, the right of access (Article 4, first paragraph) that had been granted to the father by the decision of 17 November 2004. Accordingly, it was unquestionably wrongful within the meaning of the Hague Convention.” (ii) The parties’ submissions (α) The applicants 93. The applicants took the view that the present case did not concern an international child abduction under the Hague Convention. They first argued that Noam’s removal from Israel by his mother had not been wrongful within the meaning of that Convention. They submitted that the Government had committed a manifest error of judgment in indicating that the decision given on 17 November 2004 by the Israeli court had granted “temporary custody” to the mother. 94. The applicants considered the child’s removal to Switzerland to have been lawful, for the following reasons in particular: the father’s conduct and death threats against the first applicant had warranted a special measure of protection in her favour that had been granted on 12 January 2005; the father, on account of the religious fanaticism that he displayed publicly, wanted unilaterally to impose on his infant son an ultra-orthodox and radical religious education and lifestyle without consideration for the child’s interest or for the disagreement expressed by the mother; an arrest warrant had been issued against the father on 20 March 2005 for defaulting on maintenance payments and he had had his right of access restricted and placed under the supervision of the social services because of his irresponsible conduct; the criminal complaints filed against him in Israel had been ineffective; lastly, the child’s removal had been lawful by virtue of Israeli Law no. 5722-1962 (“Capacity and Guardianship Law”), of which section 25 provided in fine that in the event of disagreement between the parents, children up to the age of six would remain with their mother, and of which section 18 in fine expressly authorised either parent to act alone in a matter admitting of no delay, which would especially be the case where the parent had custody of the child. (β) The Government 95. The Government took the view that the second applicant’s removal had been wrongful. Pointing out that the Explanatory Report of April 1981 on the Hague Convention contrasted “rights of custody” with simple access rights, they observed that “[a] questionable result would have been attained had the application of the Convention, by granting the same degree of protection to custody and access rights, led ultimately to the substitution of the holders of one type of right by those who held the other”. Thus, the question whether joint custody existed had to be determined in each particular case and in the light of the law in force in the country of the child’s habitual residence. 96. In the Government’s submission, it was clear that, by reference to the definition in Article 5, sub-paragraph (a), of the Hague Convention, Israeli guardianship covered “rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence” within the meaning of that provision. That interpretation was confirmed by the fact that Article 3 of the Hague Convention expressly mentioned cases where, as in the present case, custody was exercised jointly. It could clearly be seen from the Explanatory Report that this particularly referred to cases of joint custody after the parents had separated or divorced. In this connection the Government stressed that it was expressly envisaged in the Hague Convention that the removal of a child against the wishes of a parent having joint custody, but with whom the child did not live, would be unlawful. 97. The view that joint guardianship was irrelevant as the mother alone had custody, as expressed by Judge Spielmann in his dissenting opinion (appended to the Chamber judgment), was not sufficiently substantiated by the passages of the Explanatory Report cited in that opinion. As regards Judge Spielmann’s observation that the Explanatory Report appeared to make a distinction between custody rights and parental authority in the context of children entrusted to an institution, the Government observed that it was apparent from the passage in question that in the event of compulsory placement of the child, custody for the purposes of the Hague Convention would belong to the relevant body. In the Government’s submission, as that body was then responsible for taking care of the child’s needs and, in particular, for determining its place of residence, that passage also confirmed that custody within the meaning of the Hague Convention corresponded to guardianship and not to custody in Israeli law. 98. In view of the foregoing, the Government submitted that the Hague Convention was applicable and that the second applicant’s removal from Israel had to be regarded as wrongful within the meaning of that Convention. All the authorities dealing with the matter, whether the Israeli and Swiss authorities or the Chamber of the Court, had moreover shared that opinion. (iii) The Court’s assessment 99. The Court notes that the Federal Court’s judgment of 16 August 2007 was based mainly on the Hague Convention, which has been incorporated into Swiss law. However, the applicants disputed the applicability of that instrument in the present case because, in their view, Noam’s removal from Israel by his mother was not wrongful. The Court must therefore examine whether the Hague Convention constituted a sufficient legal basis on which to order the child’s return to Israel. 100. The Court reiterates at the outset that it is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic legislation. This also applies where domestic law refers to rules of general international law or to international agreements. The Court’s role is confined to ascertaining whether those rules are applicable and whether their interpretation is compatible with the Convention (see Waite and Kennedy v. Germany [GC], no. 26083/94, § 54, ECHR 1999-I, and Korbely v. Hungary [GC], no. 9174/02, § 72, ECHR 2008). 101. In the present case, the second applicant’s removal was examined by three domestic courts which all concluded, in duly reasoned decisions, that it was wrongful within the meaning of the Hague Convention. That assessment was confirmed by the Chamber for two main reasons: firstly, even though the first applicant had custody, at least on a provisional basis, the father had guardianship jointly with the mother under Israeli law; secondly, Noam’s removal rendered illusory, in practice, the right of access that had been granted to the father. 102. It should also be observed that the concept of custody rights, within the meaning of the Hague Convention, has an autonomous meaning (see paragraphs 66-67 above) since it has to be applied to all the States Parties to that Convention and may be defined differently in their various legal systems. In the present case, it appears that in Israeli law the institution of guardianship is comparable to custody rights under Article 5, first paragraph, (a) of the Hague Convention, which refers in its definition to the right “to determine the child’s place of residence”. Such right is also included in guardianship. In the present case that right was breached because it was to be exercised jointly by both parents; moreover, there is no indication that it was not exercised effectively until the child’s removal, as required by Article 3, first paragraph, (b) of that Convention. 103. In addition, it is noteworthy that the mother took the child to Switzerland in breach of an order prohibiting his removal from Israel that had been made by the competent Israeli court at her own request. It appears that courts in certain States take the view that breaches of such orders give rise to the application of the Hague Convention (see paragraphs 69-74 above). 104. Lastly, even though in principle the Hague Convention applies only to breaches of custody rights, it can be seen from its Preamble, Article 1 (b) and Article 21 (see paragraph 57 above) that it also seeks to protect access rights. There is no doubt in the present case that the second applicant’s removal hindered the possible exercise by the father of the right of access that he had been granted. 105. In view of the foregoing, the Court finds, like the Chamber, that the first applicant removed her child from Israel to Switzerland “wrongfully”, within the meaning of Article 3 of the Hague Convention. She thus committed an abduction for the purposes of that Convention, which is therefore applicable in the present case. Accordingly, in ordering the child’s return under Article 12 of the Hague Convention, the impugned measure had a sufficient legal basis. (b) Legitimate aim 106. The Court shares the Chamber’s opinion that the decision by the Federal Court to return the child pursued the legitimate aim of protecting the rights and freedoms of Noam and his father, as the parties have moreover not denied before the Grand Chamber. (c) Necessity of the interference in a democratic society (i) The Chamber judgment 107. In the Chamber’s opinion, the interference that would be constituted by Noam’s return would not be disproportionate. In this connection the Chamber noted the many measures that had been taken by the Israeli authorities in order to protect the applicants when they were still living in that country. A return to Israel could be envisaged for the mother and for the child, given that he was still at a perfectly adaptable age (see the Chamber judgment, §§ 80 and 89). As regards the risk of a criminal sanction against the mother, the Chamber found no reason to doubt the credibility of the assurances given by the Israeli authorities in that connection, having regard in particular to the efforts they had made for the mother and child before their departure for Switzerland (ibid., § 90). The Chamber further emphasised that it was in the “best interests” of every child to grow up in an environment that allowed him or her to maintain regular contact with both parents (ibid., § 91). In addition, there was no evidence to suggest that the first applicant would be unable to influence her son’s religious education or that the Israeli authorities and courts would be unable to prevent the father from sending him to a religious “Heder” school (ibid., § 92). (ii) The parties’ submissions (α) The applicants 108. The applicants submitted that, in the present case, it should be borne in mind that the first applicant had custody of the child whilst the father had a limited right of access, under supervision, on account of conduct that all the judges dealing with this case had unanimously found to be unacceptable. In the applicants’ submission, that circumstance was of the essence, since it clearly distinguished the present case from Bianchi v. Switzerland (no. 7548/04, § 77, 22 June 2006), in which the Court had emphasised that while its role was not to substitute itself for the competent authorities in regulating custody and access issues, it was nevertheless entitled to review under the Convention the decisions that those authorities had taken in the exercise of their power of appreciation. 109. The applicants took the view that the Federal Court’s method was significantly different from that adopted by the first two courts in support of their decisions: while those two courts had refused to place too narrow an interpretation on the provisions of the relevant international instruments, the same could not be said for the Federal Court, which had limited the scope of its analysis by deliberately taking an overtly restrictive position. Whilst the courts below had upheld the objection to the child’s return, highlighting, in particular, the best interests of the child and the grave risk of psychological harm, and also the intolerable situation which they considered the child would face if he were returned to Israel with or without his mother, the Federal Court had quite simply rejected that approach, even though it was supported by an expert’s report, and had declared that the proper solution was in fact to compel the mother, who had custody, to return to Israel with the child, failing which she would be separated from him. However, the first applicant had always declared that she would not return to Israel, not only because of the intolerable situation which had precisely led her to leave that country in June 2005, but also because to do so would mean uprooting herself and her child and would entail problems for her before the Israeli courts. In addition, as she had sole financial responsibility for the child, the first applicant could not reasonably be expected to give up her job in Switzerland. Furthermore, the child and his mother had been fully integrated in the environment and social life of Lausanne for more than four years. 110. In the applicants’ submission, the risk that the mother would be imprisoned if she returned to Israel was established and the civil consequences of separation would be disastrous. They stated that, under Israeli criminal law no. 5737-1977, the mother was liable to very severe criminal sanctions. Contrary to the Federal Court’s finding, she would most certainly face such a sanction on her return to Israel and this would undoubtedly constitute, in the applicants’ view and as the medical expert had emphasised in his report of 16 April 2007, a major psychological trauma and an intolerable situation for the child, who would in practice experience an immediate and distressing separation from his mother. The applicants stated that the consequences of the mother’s imprisonment in Israel would also be disastrous in civil terms for the future of mother and child. They alleged that in such a case, after being separated from his mother when she was sent to prison, Noam would not be entrusted to his father on account of the decisions previously issued against him, his instability and his lack of resources. They pointed out at this stage that the father had remarried on 1 November 2005 but had divorced his new wife, G., on 29 March 2006 while she was pregnant. He had married a third time and proceedings had again been brought against him in 2008, this time by his second wife, for defaulting on maintenance payments in respect of their daughter. 111. The applicants also argued that neither the Israeli authorities nor the respondent Government had given any reliable guarantees that the first applicant would not face criminal sanctions should she return to Israel and that she would not be separated from her child, of whom she had custody. The letter produced by the respondent Government in support of their observations of 15 February 2008 (Annex no. 3 – paragraph 40 above) contained no element capable of precluding with certainty all risk of criminal sanctions against her if she returned to Israel. 112. The applicants also pointed out that in his report of 16 April 2007 Dr B., a medical expert, taking into account the fact that the mother had ruled out her return to Israel owing to the risk of judicial proceedings against her, had concluded that the child’s return without his mother would entail major psychological trauma in the form of extreme separation anxiety and a major risk of severe depression. 113. In the applicants’ submission, the opinion expressed by the Federal Court and by the respondent Government in the present case did not reflect those expressed by the Federal Council, by legal writers, by the Swiss Parliament or by the main organisations which had been consulted prior to the enactment, on 21 December 2007, of the new Federal Act on International Child Abduction and the Hague Conventions on the Protection of Children and Adults. 114. The failure to return the child to Israel would not undermine the international protection system established by the Hague Convention but, on the contrary, would uphold it. In the applicants’ submission, whilst the principle of that Convention was to return a wrongfully removed child to the State of his or her habitual residence with the assistance of the Central Authorities designated for that purpose, it nevertheless had to be emphasised that there was an exception to that principle where the return would expose the child to a grave risk of physical or psychological harm and/or to an intolerable situation (Article 13, sub-paragraph (b), of the Hague Convention). The applicants moreover pointed out that nowadays the Hague Convention was no longer the only instrument providing for assessment in proceedings of this type. They emphasised that the Convention on the Rights of the Child made the best interests of the child a primary consideration in all decisions relating to children. Thus they took the view that the Federal Court should not have disregarded the best interests of the child. In assessing those interests it should have ascertained and weighed up specifically and objectively the consequences of the child’s return to Israel, and should have determined and described, before delivering its judgment, the appropriate arrangements that would apply upon the child’s return. 115. As regards the possibility that the parents might agree on the child’s education, such a scenario could not be envisaged in the present case precisely because of the radical position adopted by the father. The applicants pointed out in this connection that at the time of his marriage to the first applicant on 16 October 2001, Mr Shuruk had not yet adopted a radical religious attitude. It was only from the autumn of 2003, shortly after the child’s birth, that the father had, without taking into account the mother’s opinion, chosen to join an ultra-orthodox religious movement, thus completely changing the rules of life adopted by the spouses at the time of their marriage. Moreover, Mr Shuruk had not denied that he belonged to the ultra-orthodox Jewish “Lubavitch” movement, which, in the applicants’ submission, was a “mystical and ascetic movement” of traditional Hasidic Judaism, whose members engaged in zealous proselytising. Nor had Mr Shuruk denied having also sought to impose on his wife and child a radical way of life which, for example, required women to hide their hair and boys to be sent at the age of three to religious “Heder” schools. In this connection, the first applicant explained that she had no intention of cutting her son off from his roots. Since 2006 he had been attending a municipal secular nursery school one day a week and a private State-approved Jewish day-care centre where, in addition to the school curriculum of the Canton of Vaud, he was being taught the basic principles of Judaism. 116. Lastly, the applicants argued that the child’s protection required the authorities of the requested State to have taken all the necessary precautionary measures prior to enforcing the return that had been ordered. They observed that it was apparent in particular from the Government’s observations of 15 February 2008 that the Federal Court’s judgment of 16 August 2007 did not contain any provisions for its enforcement. 117. For these reasons the applicants concluded that the child’s return to Israel would constitute an unjustified interference, in a democratic society, with the exercise of their right to respect for their family life, as protected by Article 8 of the Convention. (β) The Government 118. The Government observed that whilst a return to Israel would cause the first applicant some inconvenience that she might find unsatisfactory, such problems were inherent in the Hague Convention system and could not render its mechanism inoperable. In the Government’s submission it was only where the return entailed violations of human rights that went beyond the interference inherent in the return envisaged by the Hague Convention that such return had to be declared incompatible with the Convention, a situation which, moreover, was envisaged by Article 20 of the Hague Convention. The Government took the view that the exceptions to the child’s return had to be interpreted in a restrictive manner if the Hague Convention was not to become a dead letter. 119. The Government further relied on the Court’s judgment in Maumousseau and Washington v. France (no. 39388/05, 6 December 2007), where it had stated that the aim of the Hague Convention was to prevent the “abducting” parent from succeeding in legitimating, by the passage of time operating in his or her favour, a de facto situation which he or she had created unilaterally. In that case the national authorities had stressed, in particular, that the mother, contrary to what she maintained, could accompany her child to the State in which he had his habitual residence in order to assert her rights there. That factor had been regarded as decisive by the Court, as the mother had unrestricted access to the territory of the State in question and could bring proceedings before the competent courts of that State. 120. In the Government’s opinion, the arguments put forward in the dissenting opinions, and reiterated by the applicants in their referral request, could not call into question the merits of the assessment by the Federal Court and by the Chamber. It could not be inferred, in the context of the Hague Convention, that the fact that the first applicant was socially integrated in Lausanne prevented her from accompanying the second applicant if he returned to Israel. As she had lived in Israel for six years, she must surely have a certain social network there. In that connection, the Government emphasised that, according to the report by the expert Dr B., she had decided to settle in Israel after spending holidays with her family in that country. 121. As regards the risk of criminal sanctions, the Government took the view that nothing new had emerged from the dissenting opinions or from the applicants’ referral request. The Government admitted that it followed from a letter from the Israeli Central Authority, forwarded to the Guardianship Division by the child’s father, that under Israeli criminal law a custodial sentence could be imposed for child abduction. However, guidelines issued by the Israeli State Attorney’s Department provided that when the police were dealing with such a case they would transfer it to the Israeli Central Authority responsible for application of the Hague Convention, which would then make recommendations as to the solution to be applied to the case. In this connection the Government observed that, according to the relevant guidelines, criminal proceedings should be brought only in very exceptional cases. The Israeli Central Authority had indicated that in the present case it would consider directing the Israeli police to close the criminal proceedings if the first applicant proved ready to cooperate with the Israeli authorities and to respect the right of access granted to the father by the Tel Aviv Family Court, and if she did not disappear again with the child (see letter of 30 April 2007 appended to the Government’s observations of 14 August 2009). In this connection the Government took the view that the Hague Convention system was based on mutual confidence between the States Parties to that instrument and that if a State should fail to comply with its assurances, it would run the risk that the other States might not cooperate with it in the fashion envisaged. The Government thus subscribed to the Chamber’s view that no doubt should be cast on the credibility of the assertions in that letter and that the first applicant did not run the risk of incurring criminal sanctions (see Chamber judgment, § 90). 122. The Government further observed that, throughout the domestic proceedings, the first applicant had never adduced the slightest firm evidence relating to the judicial consequences which she would allegedly face in the event of her return. On the contrary, she had asserted at the hearing of 29 August 2006 before the Justice of the Peace that she did not even contemplate returning to Israel and that she did not know what risk she would personally run if she were to return to that country. 123. Lastly, the fact that the second applicant’s father had defaulted on his maintenance obligations was also insufficient to preclude the reasonable expectation that the first applicant would return to Israel. In the Government’s submission, strictly from the viewpoint of the child’s best interests, it would no doubt be preferable for him to grow up having contact with his father, even if the father paid him no maintenance, than to grow up without knowing him. 124. In response to the fears expressed in the dissenting opinions and reiterated by the applicants in their referral request, namely, firstly, that any attempt on the first applicant’s part to influence her son’s religious education would in all likelihood be unsuccessful and, secondly, that the Chamber had placed confidence, in an abstract fashion, in a legal system whose principles in family-law matters differed, sometimes significantly, from those that were applied in Europe, the Government referred to the Explanatory Report on the Hague Convention, according to which, when the Convention was being drafted, one of the concerns taken into account was to avoid the risk that decisions given pursuant to that instrument might express “particular cultural, social etc. attitudes which themselves derive[d] from a given national community” and thus, basically, impose “their own subjective value judgments upon the national community from which the child ha[d] recently been snatched” (paragraph 22 of the Report). Furthermore, in the event of disagreement about a child’s religious education, the court granting parental authority would decide according to the best interests of the child. Independently of whether the Israeli courts dealing with the case were religious or secular courts, it was noteworthy that they had followed the recommendations of the social worker responsible for the case and had imposed many restrictions on the second applicant’s father, even though his conduct was linked with his religious ideas. There was thus no reason to conclude that those courts, on account of the “religious context of the case”, would not act in an appropriate manner. 125. The Government further observed that before the applicants had left Israel their family situation had been closely monitored by the Tel Aviv social services and the Tel Aviv Family Court, which had, in particular, prohibited the child’s father from approaching the first applicant’s flat and the child’s nursery school, from disturbing or harassing the first applicant in any way whatsoever, including by mental harassment, and in any place, from using the flat in which the first applicant lived or from carrying or possessing a weapon. The Government pointed out that it was not disputed that the father had complied with those measures (see record of the hearing of 29 August 2006 before the Justice of the Peace). 126. It was also apparent from a letter from the Israeli Central Authority to the Cantonal Court that the Israeli Prevention of Family Violence Law of 1991 made provision for protective measures in the event of allegations of violence within the family (see the letter of 12 March 2007 in Annex 6 to the Government’s observations of 14 August 2009). The Israeli authorities’ conduct and the measures taken before the first applicant’s departure with her son showed that the provisions of that law were applied effectively. In those circumstances, and in the light of the measures taken by the Israeli authorities, the Government submitted that the conduct of the second applicant’s father did not constitute a risk within the meaning of Article 13, sub-paragraph (b), of the Hague Convention. 127. Lastly, the applicants’ extended stay in Switzerland could not constitute an obstacle to their return pursuant to the Hague Convention. The Government, relying in this connection on the Chamber judgment, took the view in particular that, given the second applicant’s young age, he would not be exposed to any risk within the meaning of the relevant provisions. 128. In so far as the applicants had also criticised the judgment of the Federal Court of 16 August 2007 for not containing any provisions for its enforcement, the Government observed that the enforcement of judgments of the Federal Court was a matter for the cantonal authorities. The Government explained that the competent authority in the present case was the Justice of the Peace of the District of Lausanne, which had delivered the decision at first instance. On 20 August 2007 the child’s father had applied to that authority through his counsel to appoint an ad hoc guardian for the child with the task of arranging Noam’s departure in accordance with the decision of the Federal Court. Following this Court’s decision of 27 September 2007 to indicate a stay of execution in the present case, the father had withdrawn his request on 1 October 2007. These were the reasons why, for the time being, the arrangements for the child’s return had not yet been decided. The Government further observed that the Federal Court, in its judgment of 16 August 2007, had ordered the child’s return on the assumption that the mother could be expected to accompany him. Moreover, primary responsibility for arranging the return lay with the first applicant, who had created the present dispute in the first place by abducting her son. The Government submitted, however, that if the first applicant had expressed actual fears linked with specific aspects of a return to Israel, the competent authority could have examined measures capable of providing a remedy. Moreover, the arrangements for the child’s return had not been examined further by the Swiss authorities on account of the interim measures indicated by the Court. 129. The Government expressed the view that, after a stay of more than four years in the host country, it was clearly no longer possible to speak of a “prompt return” within the meaning of the Hague Convention. Moreover, whilst it was true that, at the time of the Federal Court’s judgment, it was justifiable to disregard the passage of time, that was no longer the case at present. In other words, the Government’s submission is that the authorities competent for the enforcement of the return have the right and the duty to examine the conditions in which the return could be implemented without breaching the applicants’ rights. 130. Having regard to the foregoing, the Government were satisfied that the conditions of Article 13, sub-paragraph (b), of the Hague Convention had manifestly not been met in the present case, and that the balancing of the interests involved, even if it entailed difficult consequences for the first applicant, was consistent with that provision and complied with the requirements of Article 8 § 2 of the Convention. (iii) The Court’s assessment (α) General principles 131. 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 Golder v. the United Kingdom, 21 February 1975, § 29, Series A no. 18; 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). 132. In matters of international child abduction, the obligations that Article 8 imposes on the Contracting States must therefore be interpreted taking into account, in particular, the Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980 (see Iglesias Gil and A.U.I. v. Spain, no. 56673/00, § 51, ECHR 2003-V, and Ignaccolo-Zenide v. Romania, no. 31679/96, § 95, ECHR 2000-I) and the Convention on the Rights of the Child of 20 November 1989 (see Maire, cited above, § 72). The Court has, for example, espoused the provisions of the Hague Convention on a number of occasions, in particular Article 11 when examining whether the judicial or administrative authorities, on receiving an application for the return of a child, had acted expeditiously and diligently, as any inaction lasting more than six weeks could give rise to a request for a statement of reasons for the delay (see, for the text of that provision, paragraph 57 above, and for examples of application, Carlson v. Switzerland, no. 49492/06, § 76, 6 November 2008; Ignaccolo-Zenide, cited above, § 102; Monory v. Romania and Hungary, no. 71099/01, § 82, 5 April 2005; and Bianchi, cited above, § 94). 133. However, the Court must also bear in mind the special character of the Convention as an instrument of European public order ( ordre public ) for the protection of individual human beings and its own mission, as set out in Article 19, “to ensure the observance of the engagements undertaken by the High Contracting Parties” to the Convention (see, among other authorities, Loizidou v. Turkey (preliminary objections), 23 March 1995, § 93, Series A no. 310). For that reason the Court is competent to review the procedure followed by domestic courts, in particular to ascertain whether the domestic courts, in applying and interpreting the provisions of the Hague Convention, have secured the guarantees of the Convention and especially those of Article 8 (see, to that effect, Bianchi, cited above, § 92, and Carlson, cited above, § 73). 134. In this area the decisive issue is whether a fair balance between the competing interests at stake – those of the child, of the two parents, and of public order – has been struck, within the margin of appreciation afforded to States in such matters (see Maumousseau and Washington, cited above, § 62), bearing in mind, however, that the child’s best interests must be the primary consideration (see, to that effect, Gnahoré v. France, no. 40031/98, § 59, ECHR 2000-IX), as is indeed apparent from the Preamble to the Hague Convention, which provides that “the interests of children are of paramount importance in matters relating to their custody”. The child’s best interests may, depending on their nature and seriousness, override those of the parents (see Sahin v. Germany [GC], no. 30943/96, § 66, ECHR 2003 ‑ VIII). The parents’ interests, especially in having regular contact with their child, nevertheless remain a factor when balancing the various interests at stake (ibid.; see also Haase v. Germany, no. 11057/02, § 89, ECHR 2004 ‑ III, and Kutzner v. Germany, no. 46544/99, § 58, ECHR 2002 ‑ I, and the numerous authorities cited therein). 135. The Court notes that there is currently a broad consensus – including in international law – in support of the idea that in all decisions concerning children, their best interests must be paramount (see the numerous references in paragraphs 49-56 above, and in particular Article 24 § 2 of the European Union’s Charter of Fundamental Rights). As indicated, for example, in the Charter, “[e]very child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests”. 136. The child’s interest comprises two limbs. On the one hand, it dictates that the child’s ties with its family must be maintained, except in cases where the family has proved particularly unfit. 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, Elsholz v. Germany [GC], no. 25735/94, § 50, ECHR 2000-VIII, and Maršálek v. the Czech Republic, no. 8153/04, § 71, 4 April 2006). 137. The same philosophy is inherent in the Hague Convention, which in principle requires the prompt return of the abducted child unless there is a grave risk that the child’s return would expose it to physical or psychological harm or otherwise place it in an intolerable situation (Article 13, sub-paragraph (b)). In other words, the concept of the child’s best interests is also an underlying principle of the Hague Convention. Moreover, certain domestic courts have expressly incorporated that concept into the application of the term “grave risk” under Article 13, sub-paragraph (b), of that Convention (see paragraphs 58-64 above). In view of the foregoing, the Court takes the view that Article 13 should be interpreted in conformity with the Convention. 138. It follows from Article 8 that a child’s return cannot be ordered automatically or mechanically when the Hague Convention is applicable. The child’s best interests, from a personal development perspective, will depend on a variety of individual circumstances, in particular his age and level of maturity, the presence or absence of his parents and his environment and experiences (see the UNHCR Guidelines, paragraph 52 above). For that reason, those best interests must be assessed in each individual case. That task is primarily one for the domestic authorities, which often have the benefit of direct contact with the persons concerned. To that end they enjoy a certain margin of appreciation, which remains subject, however, to a European supervision whereby the Court reviews under the Convention the decisions that those authorities have taken in the exercise of that power (see, for example, Hokkanen v. Finland, 23 September 1994, § 55, Series A no. 299 ‑ A, and Kutzner, cited above, §§ 65-66; see also Tiemann v. France and Germany (dec.), nos. 47457/99 and 47458/99, ECHR 2000 ‑ IV; Bianchi, cited above, § 92; and Carlson, cited above, § 69). 139. In addition, the Court must ensure that the decision-making process leading to the adoption of the impugned measures by the domestic court was fair and allowed those concerned to present their case fully (see Tiemann, cited above, and Eskinazi and Chelouche v. Turkey (dec.), no. 14600/05, ECHR 2005 ‑ XIII). To that end the Court must ascertain whether the domestic courts conducted an in-depth examination of the entire family situation and of a whole series of factors, in particular of a factual, emotional, psychological, material and medical nature, and made a balanced and reasonable assessment of the respective interests of each person, with a constant concern for determining what the best solution would be for the abducted child in the context of an application for his return to his country of origin (see Maumousseau and Washington, cited above, § 74). 140. The Court has already had occasion to examine the question whether the conditions of enforcement of a child’s return were compatible with Article 8 of the Convention. It defined the obligations of States in such matters in Maumousseau and Washington (cited above, § 83) as follows: “The Court points out that while the essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities, there may in addition be positive obligations inherent in effective ‘respect’ for family life. As to the State’s obligation to take positive measures, Article 8 includes the right of a parent – in this case the father – 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, Ignaccolo-Zenide, cited above, § 94). However, this obligation is not absolute, since the reunion of a parent with his or her child may not be able to take place immediately and may require preparation. 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 important ingredients. In addition, when difficulties appear, mainly as a result of a refusal by the parent with whom the child lives to comply with the decision ordering the child’s prompt return, the appropriate authorities should then impose adequate sanctions in respect of this lack of cooperation and, whilst coercive measures against children are not desirable in this sensitive area, the use of sanctions must not be ruled out in the event of manifestly unlawful behaviour by the parent with whom the child lives (see Maire, cited above, § 76). Lastly, in this kind of case, the adequacy of a measure is to be judged by the swiftness of its implementation. Proceedings relating to the award of parental responsibility, including the enforcement of the final decision, require urgent handling as the passage of time can have irremediable consequences for relations between the child and the parent with whom it does not live. The Hague Convention recognises this fact because it provides for a range of measures to ensure the prompt return of children removed to or wrongfully retained in any Contracting State. Article 11 of the Hague Convention requires the judicial or administrative authorities concerned to act expeditiously to ensure the return of children and any failure to act for more than six weeks may give rise to a request for explanations (see Maire, cited above, § 74).” (β) Application of those principles to the present case 141. It is not the Court’s task to take the place of the competent authorities in examining whether there would be a grave risk that the child would be exposed to psychological harm, within the meaning of Article 13 of the Hague Convention, if he returned to Israel. However, the Court is competent to ascertain whether the domestic courts, in applying and interpreting the provisions of that Convention, secured the guarantees set forth in Article 8 of the Convention, particularly taking into account the child’s best interests. 142. The Court notes that the domestic courts hearing the case were not unanimous as to the appropriate outcome. On 29 August 2006 the Lausanne District Justice of the Peace dismissed the father’s application for the child’s return, finding that Article 13, sub-paragraph (b), of the Hague Convention was to be applied in the case (see paragraph 36 above). On 22 May 2007 that decision was confirmed in substance by the Guardianship Division of the Cantonal Court of the Canton of Vaud (see paragraph 41 above). However, on 16 August 2007, the Federal Court allowed the father’s application and ordered Noam’s return. In that court’s opinion, the judgment of the Cantonal Court had failed to provide any evidence of a grave risk of harm, or of any intolerable situation for the child, in the eventuality – an acceptable one for the Federal Court – of the mother’s return with him to Israel (see paragraph 44 above). Lastly, in a provisional-measures order of 29 June 2009 the President of the Lausanne District Court decided that Noam should live at his mother’s address in Lausanne, suspended the father’s right of access in respect of his son and granted exclusive parental authority to the mother. He observed in particular that neither the father nor his lawyer had ever appeared at hearings before that court and thus found that the father had lost interest in the case (see paragraph 47 above). 143. Moreover, a number of experts’ reports concluded that there would be a risk for the child in the event of his return to Israel. In the first such report, delivered on 16 April 2007 by Dr B., it was stated that the child’s return to Israel with his mother would expose him to a risk of psychological harm whose intensity could not be assessed without ascertaining the conditions of that return, in particular the conditions awaiting the mother and their possible repercussions for the child. As to the child’s return without his mother, that would also expose him to a risk of major psychological harm (see paragraph 37 above). The second report, drafted on 23 February 2009 by Dr M.-A., concludes that Noam’s abrupt return to Israel without his mother would constitute a significant trauma and a serious psychological disturbance for the child (see paragraph 46 above). 144. It would thus seem that in the view of the domestic courts and experts, Noam’s return could only be envisaged with his mother, in any event. Even the Federal Court, the only domestic court to have ordered the child’s return, based its decision on the consideration that as there were no grounds objectively justifying the mother’s refusal to return to Israel, she could reasonably be expected to return to that country with her child. It must therefore be determined whether this conclusion is compatible with Article 8, that is to say whether the forced return of the child accompanied by his mother, even though she seems to have ruled out this possibility, would represent a proportionate interference with the right of each of the applicants to respect for their family life. 145. Even though doubts in this respect may appear justified, the Court is prepared to accept that in the present case the measure in question remains within the margin of appreciation afforded to national authorities in such matters. However, in order to assess whether Article 8 has been complied with, it is also necessary to take into account the developments that have occurred since the Federal Court’s judgment ordering the child’s return (see, mutatis mutandis, Sylvester v. Austria, nos. 36812/97 and 40104/98, 24 April 2003). The Court must therefore place itself at the time of the enforcement of the impugned measure (see, mutatis mutandis, Maslov v. Austria [GC], no. 1638/03, § 91, ECHR 2008). If it is enforced a certain time after the child’s abduction, that may undermine, in particular, the pertinence of the Hague Convention in such a situation, it being essentially an instrument of a procedural nature and not a human rights treaty protecting individuals on an objective basis. Moreover, whilst under Article 12, second paragraph, of the Hague Convention, a judicial or administrative authority before which the case is brought after the one-year period provided for in the first paragraph must order the child’s return, this is not so if it is demonstrated that the child is now settled in his or her new environment (see, to that effect, Koons v. Italy, no. 68183/01, §§ 51 et seq., 30 September 2008). 146. The Court takes the view that guidance on this point may be found, mutatis mutandis, in its case-law on the expulsion of aliens (see Maslov, cited above, § 71, and Emre v. Switzerland, no. 42034/04, § 68, 22 May 2008), according to which, in order to assess the proportionality of an expulsion measure concerning a child who has settled in the host country, it is necessary to take into account the child’s best interests and well-being, and in particular the seriousness of the difficulties which he or she is likely to encounter in the country of destination and the solidity of social, cultural and family ties both with the host country and with the country of destination. The seriousness of any difficulties which may be encountered in the destination country by the family members who would be accompanying the deportee must also be taken into account (see Üner v. the Netherlands [GC], no. 46410/99, § 57, ECHR 2006-XII). 147. As regards Noam, the Court notes that he has Swiss nationality and that he arrived in the country in June 2005 at the age of two. He has been living there continuously ever since. In the applicants’ submission, he has settled well and in 2006 started attending a municipal secular day nursery and a State-approved private Jewish day nursery. He now goes to school in Switzerland and speaks French (see the provisional-measures order of 29 June 2009, paragraph 47 above). Even though he is at an age where he still has a certain capacity for adaptation, the fact of being uprooted again from his habitual environment would probably have serious consequences for him, especially if he returns on his own, as indicated in the medical reports. His return to Israel cannot therefore be regarded as beneficial. 148. Accordingly, the significant disturbance that the second applicant’s forced return is likely to cause in his mind must be weighed against any benefit that he may gain from it. In this connection it is noteworthy, as the District Court observed, that restrictions had been imposed by the Israeli courts, even before the abduction, on the father’s right of access, authorising him to see his child only twice a week under the supervision of the social services at a contact centre in Tel Aviv (see paragraph 47 above). Moreover, the applicants submitted, without being contradicted by the Government, that Noam’s father had remarried on 1 November 2005 and had divorced only a few months later, while his new wife was pregnant. He had then married for a third time. New proceedings had been brought against him in 2008, this time by his second wife, for failure to pay maintenance in respect of his daughter. The Court doubts that such circumstances, assuming they are established, would be conducive to the child’s well-being and development. 149. As to the problems that the mother’s return would entail for her, she could be exposed to a risk of criminal sanctions, the extent of which, however, remains to be determined. Before the Court the applicants referred to the letter from the Israeli Central Authority of 30 April 2007, which showed that the possibility of the first applicant not being prosecuted by the Israeli authorities would depend on a number of conditions relating to her conduct (see paragraph 40 above). In those circumstances, such criminal proceedings, which could possibly entail a prison sentence, cannot be ruled out entirely (contrast Paradis and Others v. Germany (dec.), no. 4783/03, 15 May 2003). It is clear that such a scenario would not be in the best interests of the child, the first applicant probably being the only person to whom he relates. 150. The mother’s refusal to return to Israel does not therefore appear totally unjustified. Having Swiss nationality, she is entitled to remain in Switzerland. Even supposing that she agreed to return to Israel, there would be an issue as to who would take care of the child in the event of criminal proceedings against her and of her subsequent imprisonment. The father’s capacity to do so may be called into question, in view of his past conduct and limited financial resources. He has never lived alone with the child and has not seen him since the child’s departure. 151. In conclusion, and in the light of all the foregoing considerations, particularly the subsequent developments in the applicants’ situation, as indicated in particular in the provisional-measures order of 29 June 2009, the Court is not convinced that it would be in the child’s best interests for him to return to Israel. As to the mother, she would sustain a disproportionate interference with her right to respect for her family life if she were forced to return with her son to Israel. Consequently, there would be a violation of Article 8 of the Convention in respect of both applicants if the decision ordering the second applicant’s return to Israel were to be enforced. III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 152. The Chamber found that the complaint under Article 6 § 1 of the Convention had to be regarded as constituting one of the essential points of the complaint under Article 8 and that it was not necessary to examine this allegation separately (see the Chamber judgment, § 104). 153. The Grand Chamber considers it appropriate to confirm that finding and observes, moreover, that it has not been disputed before it by the parties. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 154. 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 155. The applicants did not submit any claim in respect of pecuniary damage. They took the view that any finding of a violation of Article 8 would provide sufficient redress for the non-pecuniary damage that they had sustained. 156. The Court shares the applicants’ opinion and finds that no award should be made in respect of any damage. B. Costs and expenses 157. In respect of costs and expenses, the applicants claimed a total amount of 53,625 euros (EUR) calculated as follows: EUR 18,158.81 in respect of the domestic proceedings, EUR 13,112.92 for the proceedings before the Chamber, and EUR 22,353.27 for the proceedings before the Grand Chamber. 158. The Government pointed out that the questions referred from the Chamber concerned only part of the initial complaints. Accordingly, they took the view that if the Court were to find a violation of the applicants’ rights, a total of 10,000 Swiss francs (CHF), equivalent to approximately EUR 6,667, would be appropriate in the present case to cover the costs and expenses incurred in the proceedings before the domestic courts and before the Chamber. As regards the proceedings before the Grand Chamber, the Government submitted that CHF 7,000 (approximately EUR 4,667) would be an appropriate amount. 159. 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 Zimmermann and Steiner v. Switzerland, 13 July 1983, § 36, Series A no. 66, and Hertel v. Switzerland, 25 August 1998, § 63, Reports of Judgments and Decisions 1998-VI). Moreover, such costs and expenses must have been actually and necessarily incurred and must be reasonable as to quantum (see Bottazzi v. Italy [GC], no. 34884/97, § 30, ECHR 1999-V, and Linnekogel v. Switzerland, no. 43874/98, § 49, 1 March 2005). 160. Having regard to the foregoing, the Court notes that only the complaint under Article 8 has, in the present case, given rise to a finding of a violation of the Convention. The remainder of the application is inadmissible. In addition, it is not certain that the applicants’ claims have been sufficiently substantiated to meet in full the requirements of Rule 60 § 2 of the Rules of Court. In any event, they appear excessive, in particular as regards the amount claimed for the proceedings before the Grand Chamber. As Noam’s abduction had already been examined in detail by the domestic authorities and by the Chamber, the Court is not convinced that the proceedings before the Grand Chamber, and in particular the hearing of 7 October 2009, required the assistance of five lawyers for a total cost of EUR 21,456. 161. Having regard to the material in its possession and to the criteria developed in its case-law, the Court awards the applicants jointly a total of EUR 15,000 for costs and expenses, plus any amount that may be payable by them in tax on that award. C. 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 8 of the Convention in respect of the two applicants if the decision ordering the child’s return to Israel were to be enforced. It was in particular not convinced that it would be in the child’s best interests for him to return to Israel. He was indeed a Swiss national and had settled very well in the country where he had been living continuously for about four years. Even though he was at an age (seven years old) where he still had a significant capacity for adaptation, the fact of being uprooted again would probably have serious consequences for him and had to be weighed against any benefit that he was likely to gain from it. In this connection, it was noteworthy that restrictions had been imposed on the father’s right of access before the child’s abduction. Moreover, the father had remarried twice since then and was now a father again but had failed to pay maintenance for his daughter. As to the mother, the Court further considered that she would sustain a disproportionate interference with her right to respect for her family life if she were forced to return to Israel. |
829 | Following annulment of simulated marriage | II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE A. Domestic law 1. The Constitution 31. Article 44 of the Maltese Constitution concerns the right to freedom of movement. Its sub-paragraphs (1) and (4) read as follows. “(1) No citizen of Malta shall be deprived of his freedom of movement, and for the purpose of this Article the said freedom means the right to move freely throughout Malta, the right to reside in any part of Malta, the right to leave and the right to enter Malta.” “(4) For the purposes of this Article, any person - ( a ) who has emigrated from Malta (whether before, on or after the appointed day) and, having been a citizen of Malta by virtue of Article 3(1) or of Article 5(1) of the Maltese Citizenship Act as in force upon the coming into force of the Maltese Citizenship (Amendment) Act, 2000, has ceased to be such a citizen; or ( b ) who emigrated from Malta before the appointed day and, but for his having ceased to be a citizen of the United Kingdom and Colonies before that day, would have become a citizen of Malta by virtue of Article 3(1) of the Maltese Citizenship Act as in force upon the coming into force of the Maltese Citizenship (Amendment) Act, 2000; or ( c ) who is the spouse of a person mentioned in paragraph ( a ) or ( b ) of this sub-Article or of a person who is a citizen of Malta by virtue of Article 3(1) or of Article 5(1) of the Maltese Citizenship Act as in force upon the coming into force of the Maltese Citizenship (Amendment) Act, 2000, and who has been married to that person for at least five years and is living with that person, or is the child under twenty-one years of age of such a person; or ( d ) who is the widow or the widower of a person mentioned in paragraph ( a ) or paragraph ( b ) of this sub-Article or of a person who at the time of his or her death was a citizen of Malta by virtue of Article 3(1) or of Article 5(1) of the Maltese Citizenship Act as in force upon the coming into force of the Maltese Citizenship (Amendment) Act, 2000, and who was still living with him or her at the time of his or her death and had been married to that person for at least five years or who would, but for the death of that person, have been so married for at least five years, or is the child under twenty-one years of age of such a person, shall be deemed to be a citizen of Malta by virtue of Article 3(1) or of Article 5(1) of the Maltese Citizenship Act as in force upon the coming into force of the Maltese Citizenship (Amendment) Act, 2000: Provided that if the Minister responsible for matters relating to Maltese citizenship at any time by order declares that it is contrary to the public interest that a spouse as is mentioned in paragraph ( c ), or a widow or widower as is mentioned in paragraph ( d ) or a child over eighteen years of age as is mentioned in paragraph ( c ) or ( d ) is to be so deemed, or to continue to be so deemed, such spouse, widow, widower or child, as the case may be, shall thereupon cease to be deemed to be a citizen of Malta as aforesaid: Provided further that the Minister responsible for matters relating to Maltese citizenship shall not be required to assign any reason for the issue of any order referred to in the immediately preceding proviso, and the decision of the Minister on any such order shall not be subject to appeal to or review in any court.” 2. The Citizenship Act 32. The relevant Articles of the Citizenship Act, Chapter 188 of the Laws of Malta, read as follows. Article 14 – previously Article 9 (prior to the amendments in 2000) “(1) Subject to the provisions of this Article, the Minister may by order deprive of his Maltese citizenship any citizen of Malta who is such by registration or naturalisation if he is satisfied that the registration or certificate of naturalisation was obtained by means of fraud, false representation or the concealment of any material fact. (2) Subject to the provisions of this Article, the Minister may by order deprive of his Maltese citizenship any citizen of Malta who is such by registration or by naturalisation if he is satisfied that the citizen— ( a ) has shown himself by act or speech to be disloyal or disaffected towards the President or the Government of Malta; or ( b ) has, during any war in which Malta was engaged, unlawfully traded or communicated with an enemy or been engaged in or associated with any business that was to his knowledge carried on in such a manner as to assist an enemy in that war; or ( c ) has, within seven years after becoming naturalised, or being registered as a citizen of Malta, been sentenced in any country to a punishment restrictive of personal liberty for a term of not less than twelve months; or ( d ) has been ordinarily resident in foreign countries for a continuous period of seven years and during that period has neither— (i) been at any time in the service of the Republic or of an international organisation of which the Government of Malta was a member; or (ii) given notice in writing to the Minister of his intention to retain citizenship of Malta. (3) The Minister shall not deprive a person of citizenship under this Article unless he is satisfied that it is not conducive to the public good that that person should continue to be a citizen of Malta and, in the case referred to in sub-Article (2)( c ), it appears to him that that person would not thereupon become stateless. (4) Before making an order under this Article, the Minister shall give the person against whom the order is proposed to be made notice in writing informing him of the ground on which it is proposed to be made and of his right to an inquiry under this Article; and if that person applies in the prescribed manner for an inquiry, the Minister shall refer the case to a committee of inquiry consisting of a chairman, being a person possessing judicial experience, appointed by the Minister and of such other members appointed by the Minister as he thinks proper. (5) The Minister may make rules for the practice and procedure to be followed in connection with a committee of inquiry appointed under this Article, and such rules may, in particular, provide for conferring on any such committee any powers, rights or privileges of any court, and for enabling any powers so conferred to be exercised by one or more members of the committee.” Article 15 “(1) A citizen of Malta who is deprived of his citizenship by an order of the Minister under Article 14 shall, upon the making of the order, cease to be a citizen of Malta. ...” Article 19 “The Minister shall not be required to assign any reason for the grant or refusal of any application under this Act and the decision of the Minister on any such application shall not be subject to appeal to or review in any court.” Article 27 “(1) The acquisition or retention of Maltese citizenship by any person under the Constitution of Malta or any other law, prior to the enactment of the Maltese Citizenship (Amendment) Act, 2000 shall not be affected in any way by the provisions of the said Act. (2) This Act shall not apply with regard to any application for registration as a citizen of Malta filed before the 15th day of August, 1999.” 33. The above-mentioned committee of inquiry is regulated by Subsidiary Legislation 188.02, the Deprivation of Maltese Citizenship (Committee of Inquiry) Rules. 34. Among others, the non-Maltese spouse of a citizen of Malta is eligible for “exempt person status”, which may be enjoyed as long as the spouse is still married to and living with that person. Under the provisions of the Immigration Act (Chapter 217 of the Laws of Malta), an exempt person is entitled to freedom of movement. In accordance with the Maltese Constitution, this means the right to move freely throughout Malta, the right to reside in any part of Malta, and the right to leave and the right to enter Malta. In 2004 Malta joined the European Union and the relevant directives became applicable, including Directive 2004/38/EC of 29 April 2004 on the right of EU citizens and their family members to move and reside freely within the territory of the Member States. 35. Under Article 5 of the Citizenship Act, every person born in Malta becomes a Maltese citizen on his date of birth. The Citizenship Act also provides, however, and in so far as relevant, that a person born in Malta on or after 1 August 1989 may not become a citizen of Malta unless, at the time of his birth, his father or his mother was a citizen of Malta or a person who, having been a citizen of Malta, emigrated from Malta (Article 44 § 4 (a) and (b) of the Constitution). The two provisos do not apply in the case of a new-born infant found abandoned anywhere in Malta, who would by virtue thereof be stateless. Any such infant remains a citizen of Malta until his right to any other citizenship is established. 3. The Immigration Act 36. The relevant parts of Article 14 of the Immigration Act, Chapter 217 of the Laws of Malta, read as follows. “(1) If any person is considered by the Principal Immigration Officer to be liable to removal as a prohibited immigrant under any of the provisions of Article 5, the said Officer may issue a removal order against such person who shall have a right to appeal [before the Immigration Appeals Board] against such order in accordance with the provisions of Article 25A: ... (2) Upon such order being made, such person against whom such order is made, shall be detained in custody until he is removed from Malta: ... (3) Nothing in this Article shall affect the obligation of any person who does not fulfil or who no longer fulfils the conditions of entry, residence or free movement to leave Malta voluntarily without delay. (4) Removal of a person shall be to that person’s country of origin or to any other State to which he may be permitted entry, in particular under the relevant provisions of any applicable readmission agreement concluded by Malta and in accordance with international obligations to which Malta may be party. (5) Nothing in this Article shall preclude or prejudice the application of Maltese law on the right to asylum and the rights of refugees and of Malta’s international obligations in this regard. ...” 4. The Immigration Regulations 37. The relevant part of Subsidiary Legislation 217.04 provides the following rules. “12. (1) A third country national shall only be entitled to reside in Malta if a uniform residence permit for a specific purpose is issued in his regard. (2) The provisions of subregulation (1) shall not apply to a third country national who has been given temporary permission to reside in Malta for the purpose of the processing of an application for asylum or an application for a uniform residence permit. (3) [Not yet in force] Without prejudice to Regulation 7(3), the provisions of Regulations 5, 6, 8, 9 and 10 shall mutatis mutandis apply to this Part, so however that a third country national cannot apply for a licence or a uniform residence permit for the purpose of seeking or taking up employment; nor may he apply to change the nature of the uniform residence permit into one empowering him to seek or take up employment, while he is already in Malta, save as the Minister may direct in exceptional circumstances. ” 38. Regulations 5, 6, 8, 9 and 10 refer to residence and employment with regard to citizens of the European Union. 39. Regulation 12(3) has not yet come into force but will do so on such date as the Minister may by notice in the Government Gazette of Malta appoint. B. International materials 1. United Nations 40. Malta is not a party to the 1954 United Nations Convention relating to the Status of Stateless Persons, nor is it a party to the 1961 Convention on the Reduction of Statelessness. A report by the United Nations Refugee Agency Office in Malta, entitled “Mapping Statelessness in Malta” (2014), recommended, inter alia, that Malta consider acceding to the two above-mentioned conventions and establishing an effective statelessness determination procedure, as well as ensuring the rights of stateless persons and awareness about statelessness among relevant government institutions. 2. Relevant Council of Europe instruments 41. To promote the progressive development of legal principles concerning nationality, as well as their adoption in internal law, and to avoid, as far as possible, cases of statelessness, the Council of Europe drew up the 1997 European Convention on Nationality. One of the principles of this Convention, provided for in Article 4, is that “statelessness shall be avoided”. Article 6 provides that each State Party must facilitate in its internal law the acquisition of its nationality for stateless persons. Article 7, however, specifies that a State Party may not provide in its internal law for the loss of its nationality if the person concerned would thereby become stateless, with the exception of cases of acquisition of the nationality of the State Party by means of fraudulent conduct, false information or concealment of any relevant fact attributable to that person. 42. This Convention was signed by Malta on 29 October 2003 but has not been ratified. 43. On 15 September 1999 the Committee of Ministers of the Council of Europe adopted Recommendation No. R (99) 18 on the avoidance and reduction of statelessness. In particular, concerning the avoidance of statelessness as a consequence of loss of nationality, it recommends, in its relevant part, the following: “c. In order to avoid, as far as possible, situations of statelessness, a State should not necessarily deprive of its nationality persons who have acquired its nationality by fraudulent conduct, false information or concealment of any relevant fact. To this effect, the gravity of the facts, as well as other relevant circumstances, such as the genuine and effective link of these persons with the state concerned, should be taken into account;” 3. Relevant EU law and case-law of the Court of Justice of the European Union 44. Article 20 of the Treaty on the Functioning of the European Union (TFEU) reads as follows. “1. Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship. 2. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia: (a) the right to move and reside freely within the territory of the Member States; (b) the right to vote and to stand as candidates in elections to the European Parliament and in municipal elections in their Member State of residence, under the same conditions as nationals of that State; (c) the right to enjoy, in the territory of a third country in which the Member State of which they are nationals is not represented, the protection of the diplomatic and consular authorities of any Member State on the same conditions as the nationals of that State; (d) the right to petition the European Parliament, to apply to the European Ombudsman, and to address the institutions and advisory bodies of the Union in any of the Treaty languages and to obtain a reply in the same language. These rights shall be exercised in accordance with the conditions and limits defined by the Treaties and by the measures adopted thereunder.” (a) Judgment of the Court of Justice of the European Union of 2 March 2010 in Rottmann, C-135/08, EU:C:2010:104 45. Dr Rottmann was born a citizen of Austria. After being accused in Austria of serious fraud in the exercise of his profession, he moved to Germany, where he applied for naturalisation. By acquiring German citizenship, he lost his Austrian citizenship by operation of law. Following information from the Austrian authorities that Dr Rottmann was the subject of an arrest warrant in their country, the German authorities sought to annul his acquisition of German citizenship on the grounds that he had obtained it fraudulently. Such a decision, however, had the effect of rendering him stateless. The referring court wished to know if this was a matter that fell within the scope of EU law, as Dr Rottmann’s statelessness also entailed the loss of EU citizenship. The Court of Justice of the European Union (CJEU) ruled that an EU member State’s decision to deprive an individual of citizenship, in so far as it implied the loss of the status of EU citizen and the deprivation of the attached rights, fell within the ambit of EU law and, therefore, had to be compatible with its principles. 46. The CJEU concluded that it was legitimate for a member State to revoke naturalisation on account of deception, even when the consequence was that the person lost their EU citizenship, in addition to citizenship of that member State. Such a decision, however, must comply with the principle of proportionality, which, among other things, required a reasonable period of time to be granted in order for the person to recover the citizenship of his or her member State of origin. (b) Judgment of the CJEU of 8 March 2011 in Ruiz Zambrano, C-34/09, EU:C:2011:124 47. Mr and Ms Zambrano, of Colombian nationality, were refused refugee status in Belgium but were not sent back to Colombia on account of the civil war in that country. From 2001, Mr and Ms Zambrano were then registered as resident in Belgium and Mr Zambrano worked there for a certain time, even though he did not hold a work permit. Mr and Ms Zambrano had two children – one born in 2003, the other in 2005 – who acquired Belgian nationality in accordance with the Belgian legislation applicable at that time. The competent authorities refused to accede to Mr and Ms Zambrano’s application to regularise their situation and to take up residence as ascendants of Belgian nationals. 48. According to the CJEU, Article 20 of the TFEU precluded national measures which had the effect of depriving citizens of the European Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as EU citizens. The CJEU concluded that Article 20 of the TFEU precluded a member State from refusing a work permit and the right of residence within its territory to a third-country national upon whom his minor children, who were nationals and residents of that member State, were dependent, in so far as such decisions deprived those children of the genuine enjoyment of the substance of the rights attaching to the status of citizen of the Union. THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 49. The applicant complained that the decision to divest him of his Maltese citizenship had not been made in accordance with the law. It had interfered with his right to respect for his private and family life and exposed him to the risk of being separated from his family. The decision had not been accompanied by the relevant procedural safeguards as required under Article 8 of the Convention and the State had failed to fulfil its positive obligation to protect his rights under that provision. Lastly, the applicant complained that the decision had left him stateless. He thus had to live in a state of uncertainty, where he could not even leave the country for fear of not being let back in. The provision 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.” 50. The Government contested that argument. A. Admissibility 1. Victim status (a) The parties’ submissions 51. The Government submitted that the applicant could not claim to be a “victim” for the purposes of Article 34 of the Convention. They contended that an applicant could be considered a victim only if the State had already decided to take steps against him, and interference would come about only upon the execution or implementation of that decision. In the present case, despite the lack of any interim measure by the Court, no removal order was awaiting execution or implementation, as no such order had been issued, and no practical steps had been taken by the authorities in order to remove the applicant from Malta. The Government referred to Vijayanathan and Pusparajah v. France (27 August 1992, § 46, Series A no. 241 ‑ B), in which the Court had distinguished the applicants’ case from that of the applicant in Soering v. the United Kingdom (7 July 1989, Series A no. 161), since in the former case no expulsion order had been made in respect of the applicants. They explained that deprivation of Maltese citizenship did not mean that the person so deprived would be removed from Malta. In order for the person to be removed from Malta, a removal order would have to be issued. Such an order had not been issued in the case of the applicant in the present case. 52. The applicant submitted that he was a victim under Article 34 of the Convention, since the revocation of his Maltese citizenship threatened the very basis of his ability to reside in Malta. He was directly affected by the impugned measure, in line with the Court’s case-law. In this connection, he referred to Groppera Radio AG and Others v. Switzerland (28 March 1990, § 47, Series A no. 173). The applicant submitted that even though a deportation or removal order was not in force, the threat of such an order was imminent. Indeed, the Government had not stated that a deportation or removal order would not be issued and had expressed the view that, following the annulment of his first marriage, “the applicant’s stay in Malta was precarious”. It was probable that no such action had been taken by the authorities only because they had been informed that the case was pending before the Court and that therefore no further steps were to be taken. The applicant submitted that once the Maltese Government had accepted that he could establish his second family in Malta, as he had in fact done, any subsequent curtailment of his status in Malta would directly affect that family life. (b) The Court’s assessment 53. The Court reiterates that the word “victim” in the context of Article 34 of the Convention denotes a person directly affected by the act or omission in issue (see, among many other authorities, Nsona v. the Netherlands, 28 November 1996, § 106, Reports of Judgments and Decisions 1996 ‑ V, and Brumărescu v. Romania [GC], no. 28342/95, § 50, ECHR 1999 ‑ VII). In other words, the person concerned must be directly affected by it or run the risk of being directly affected by it (see, for example, Norris v. Ireland, 26 October 1988, §§ 30 ‑ 31, Series A no. 142, and Otto-Preminger-Institut v. Austria, 20 September 1994, § 39, Series A no. 295 ‑ A). It is not therefore possible to claim to be a “victim” of an act which is deprived, temporarily or permanently, of any legal effect (see Sisojeva and Others v. Latvia (striking out) [GC], no. 60654/00, § 92, ECHR 2007 ‑ I). With reference to the specific category of cases involving the deportation of non-nationals, the Court has consistently held that an applicant cannot claim to be the “victim” of a deportation measure if the measure is not enforceable (see Vijayanathan and Pusparajah, cited above, § 46; see also Pellumbi v. France (dec.), no. 65730/01, 18 January 2005, and Etanji v. France (dec.), no. 60411/00, 1 March 2005). The Court has adopted the same stance in cases where execution of the deportation order has been stayed indefinitely or otherwise deprived of legal effect, and where any decision by the authorities to proceed with deportation can be appealed against before the relevant courts (see Sisojeva and Others, cited above, § 93, with further references to Kalantari v. Germany (striking out), no. 51342/99, §§ 55 ‑ 56, ECHR 2001 ‑ X, and Mehemi v. France (no. 2), no. 53470/99, § 54, ECHR 2003 ‑ IV; see also Andric v. Sweden (dec.), no. 45917/99, 23 February 1999; Benamar and Others v. France (dec.), no. 42216/98, 14 November 2000; A.D. v. Switzerland (dec.), no. 13531/03, 18 January 2005; and Yildiz v. Germany (dec.), no. 40932/02, 13 October 2005). 54. Regarding the applicant’s victim status in relation to the complaint that his removal from Malta would affect his private and family life, the Court notes that the authorities have not issued a removal order. Indeed, no steps towards such action have been taken at any point since 2007, when the order to revoke his citizenship was issued and was thus enforceable. Although during the intervening period proceedings concerning the applicant’s complaints have been pending before the domestic courts and subsequently before the Court, neither the domestic courts nor the Court have ordered interim measures (capable of giving any legitimacy to the letter sent to the authorities by the applicant’s legal representative – see paragraph 28 above). It follows that the authorities were under no obligation to desist from deporting the applicant, had they intended to do so. 55. Furthermore, even if such a removal order were to be issued, the applicant may appeal against it to the Immigration Appeals Board (see paragraph 36 above). The Court reiterates that where expulsions are challenged on the basis of alleged interference with a person’s private and family life (unlike complaints concerning Articles 2 and 3), it is not imperative, in order for a remedy to be effective, that it should have automatic suspensive effect (see De Souza Ribeiro v. France [GC], no. 22689/07, § 83, ECHR 2012). However, domestic courts must seriously examine the circumstances and legal arguments in favour of or against a violation of Article 8 of the Convention in the event of the removal order being enforced. Haste in the execution of a removal order may have the effect of rendering the available remedies ineffective in practice and therefore inaccessible (ibid., § 95). At this stage there is no indication that any eventual removal would be executed in a perfunctory manner and with such haste that it would have the effect of rendering the available remedies ineffective in practice and therefore inaccessible (contrast De Souza Ribeiro, cited above, § 96). 56. Moreover, on a more practical level, it appears that the applicant is currently stateless; thus, as the situation stands to date, it cannot be said that he is under threat of expulsion (see for instance, Okonkwo v. Austria (dec.), no. 35117/97, 22 May 2001) as there is no guarantee that the Egyptian authorities would accept him, nor is it likely that he could be removed to another country. In any event, such arrangements would take a certain amount of time, and in the event of a removal order being issued and steps being taken in respect of its execution, the applicant would still have a possibility of pursuing the relevant remedies. 57. Thus, at this stage, the applicant cannot claim to be a “victim” of any actual or impending violation of his rights under Article 8 in connection with his potential removal, and the Government’s objection in this respect is upheld. 58. On the contrary, the Court does not find it appropriate to reach the same conclusion in so far as the applicant complains of the revocation of his Maltese citizenship itself, the order for which has already been made and executed. It follows that in respect of this part of the complaint, the Government’s objection is dismissed. 2. Significant disadvantage 59. In their final observations (concerning comments on the applicant’s claims for just satisfaction and further observations) of 22 May 2015, the Government submitted that the applicant’s complaint was inadmissible, for the purposes of Article 35 of the Convention, on account of the fact that he had not suffered a significant disadvantage as a result of the alleged violation of the Convention. Although the applicant had been deprived of his Maltese citizenship, he still lived and worked in Malta. The applicant had not provided any evidence that he could not reacquire his Egyptian citizenship. 60. The Court reiterates that, according 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. The Court notes that when the Government were invited to comment on the admissibility and merits of the application, they did not raise any objection to this effect in their observations of 2 March 2015. The Court finds it regrettable when new objections are raised by the Government at a stage where an applicant has in principle no further opportunity to reply. This is particularly so in the absence of exceptional circumstances which would explain the delay in raising such matters. Furthermore, while the Court may well decide to allow the applicant a right of reply, this would lengthen the procedure to the applicant’s detriment as a result of the Government’s untimely actions. In any event, the Court considers that this objection is to be dismissed for the following reasons. 61. On the basis of the general principle de minimis non curat praetor, the new criterion of no significant disadvantage hinges on the idea that a violation of a right, however real from a purely legal point of view, should attain a minimum level of severity to warrant consideration by an international court. The assessment of this minimum level is, in the nature of things, relative and depends on all the circumstances of the case. The severity of a violation should be assessed taking account of both the applicant’s subjective perceptions and what is objectively at stake in a particular case (see Korolev v. Russia (dec.), no. 25551/05, ECHR 2010). Thus, the absence of any such disadvantage can be based on criteria such as the financial impact of the matter in dispute or the importance of the case for the applicant (see Ionescu v. Romania (dec.), no. 36659/04, § 34, 1 June 2010; Rinck v. France (dec.), no. 18774/09, 19 October 2010; and Kiousi v. Greece (dec.), no. 52036/09, 20 September 2011). Moreover, a violation of the Convention may concern important questions of principle and thus cause a significant disadvantage without affecting pecuniary interests (see Korolev, cited above). 62. The Court has previously stated that although the right to citizenship is not as such guaranteed by the Convention or its Protocols, it cannot be ruled out that an arbitrary denial of citizenship might in certain circumstances raise an issue under Article 8 of the Convention because of the impact of such a denial on the private life of the individual (see Karassev v. Finland (dec.), no. 31414/96, ECHR 1999-II; Slivenko and Others v. Latvia (dec.) [GC], no. 48321/99, § 77, ECHR 2002-II; Savoia and Bounegru v. Italy (dec.), no. 8407/05, 11 July 2006; and Genovese v. Malta, no. 53124/09, § 30, 11 October 2011). Furthermore, the private life of an individual is a concept that is wide enough to embrace aspects of a person’s social identity (see Genovese, cited above, § 33). 63. In the light of the issues raised, the Court does not find it appropriate to dismiss the present complaint with reference to Article 35 § 3 (b) of the Convention. The Government’s objection is therefore dismissed. 3. Conclusion as to admissibility 64. In respect of the complaint concerning the applicant’s potential removal from Maltese territory, the Court considers that the applicant cannot claim to be a victim, within the meaning of Article 34 of the Convention, of the alleged violation of his right to respect for his private and family life. It follows that this part of the complaint must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention. 65. In so far as the complaint concerns the deprivation of citizenship and its consequences, the Court considers that it 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. It must therefore be declared admissible. B. Merits 1. The parties’ observations (a) The applicant 66. The applicant insisted that his reason for marrying his first wife had not been to obtain citizenship by fraud; this was evidenced by the birth of his son and also by a psychologist’s report, in which the applicant’s anxiety at the time when he was having marital problems had been noted. He was of the view that the authorities should not simply have relied on the 1998 judgment, but that the matter required a separate independent assessment. He also argued that he could not be blamed for not having informed the authorities about the annulment of his marriage, since annotations of such annulments were entered on the relevant marriage certificate kept in the records of the Public Registry, which was a government department. Thus, the authorities had been aware of the situation from that very date. Nevertheless, they had acted on the premise that the applicant’s citizenship had remained valid, and had eventually even given his second wife “exempt person status” on that basis. 67. The applicant submitted that depriving a person of citizenship was more sensitive than restricting eligibility for citizenship, and it could not be left to a State’s discretion. Furthermore, any such decision would have to be accompanied by appropriate safeguards and an opportunity for the individual to defend himself. 68. The applicant submitted that at the time of the order depriving him of citizenship, namely 2007, he had established both a private and a family life in Malta. He had been working in Malta and had been married to his wife for more than five years and had two children, as well as a genetic bond with a son from the first marriage. In his view, when he had married for the second time, there had been no threat of his citizenship being taken away from him. Thus, it could not be said that his family life had been created at a time when the persons involved were aware that the immigration status of one of them was such that the continuation of that family life within the host State would be precarious from the outset. 69. The applicant submitted that citizenship was the gateway to several rights, including a right to unrestricted residence; a right to establish a family in Malta; a right to work there, to receive a pension, and so forth. Admitting that he had made no request for any work or residence permits, he submitted that he had no guarantee that he would acquire or be eligible for such permits. He referred to Regulation 12(3) of the Immigration Regulations (Legal Notice 205 of 2004 – see paragraph 37 above). Moreover, such permits would not solve the problem of his statelessness and his limited freedom of movement as a result of his not having a valid passport – a matter which also impinged on his ability to make a living, given his trading business. Nor could the applicant afford to pay the exorbitant fees to acquire Maltese citizenship in accordance with the Individual Investor Programme of the Republic of Malta Regulations, 2014. He further submitted that whilst the Government sold Maltese citizenship to third-country nationals who had little or no connection to Malta, he had been deprived of his citizenship even though he was connected to Malta only. 70. The applicant submitted that the measure (as well as the proceedings before the committee of inquiry) had not been in accordance with the law. As indicated in the relevant letter (see paragraph 24 above), the deprivation was based on Article 14 § 1 of the Maltese Citizenship Act (hereafter “the Citizenship Act”); however, pursuant to Article 27, the Citizenship Act did not apply to any application for Maltese citizenship lodged before 15 August 1999, and indeed the applicant had applied for citizenship in 1993. In his view, the Citizenship Act as it had stood in 2007 did not apply to his circumstances, nor was there any saving clause stating that situations such as his would continue to be regulated by the Citizenship Act as in force prior to the amendments enacted in 2000. 71. The applicant submitted that public order was not listed under Article 8 of the Convention, nor had any other legitimate aim been relied on. Although he had been found guilty of injuring his wife, the suspended sentence had played no part in the Minister’s decision. 72. Furthermore, the applicant submitted that the authorities’ action had been so belated (initiating an investigation five years after the annulment, and taking three years to investigate and take a decision on his situation) that the measure could not be deemed justified or necessary. Such a delay showed that the applicant had not posed a threat – no reasons had been given as to why it had suddenly become necessary to change the state of affairs. Moreover, in the intervening period his ties with Malta had been further strengthened. 73. The applicant submitted that the Government had failed to protect him from statelessness. This rendered the measure draconian and was disproportionate to the aim pursued. 74. In the applicant’s view, when weighing the interests of the individual against those of the State, the Court had to consider that when he had founded his second family, the prospects of joint residence were not only extremely high but even certain. The applicant had not maintained any appreciable ties with relatives in Egypt and he had now lived in Malta for over twenty years; he spoke Maltese and was perfectly integrated in Maltese culture and society. The economic consequences of his removal to any other country would be extremely detrimental to him. He also argued that should his children also be deprived of their current Maltese citizenship on the basis of his own citizenship having been revoked, they too would become stateless. (b) The Government 75. The Government submitted that the Convention did not guarantee a right to acquire a particular citizenship and that the issue of whether an applicant had an arguable right to acquire the citizenship of a State must in principle be resolved by reference to the domestic law of that State. They referred to Petropavlovskis v. Latvia (no. 44230/06, § 83, ECHR 2015). 76. The measure in issue in the present case was in accordance with the law, namely the Citizenship Act, Chapter 188 of the Laws of Malta. The relevant provision at the time was Article 9 of the Citizenship Act, which was identical to Article 14 of the amended Citizenship Act (see “Relevant domestic and international law and practice” above). Contrary to the applicant’s argument (see paragraph 70 above), the Government submitted that Article 27 § 2 of the Citizenship Act as amended in 2000 – a transitory provision – dealt with “applications” for registration which had been lodged before 15 August 1999 and were still pending. In the case of the applicant, citizenship had already been granted before 15 August 1999; thus, when the amendments to the Citizenship Act were enacted, his application had already been processed. Consequently, he could not be considered “an applicant” within the meaning of the domestic provision cited. 77. Contracting a marriage of convenience was considered to be perpetration of fraud. That had been the basis of the decision in respect of the applicant. Thus, the measure had not been arbitrary: the decision had been taken after the applicant had pleaded before the committee, produced evidence and made submissions – a procedural safeguard to protect him against any arbitrariness. Nor was the deprivation discriminatory: whenever the Department of Citizenship and Expatriate Affairs became aware that citizenship had been obtained by fraud, it took steps to deprive the individuals concerned of Maltese citizenship. 78. According to the Government, the Minister had deprived the applicant of his Maltese citizenship on the grounds that he had obtained it by fraud, a serious act that was contrary to public order. Thus, the measure was aimed at the protection of public order, which was an intrinsic part of the public interest. Reference was made to the Court’s judgments in Antwi and Others v. Norway (no. 26940/10, § 104, 14 February 2012) and Boujlifa v. France (21 October 1997, § 43, Reports 1997 ‑ VI). In that light, the Minister’s order had been justified and necessary in a democratic society. Furthermore, even though the decision had not been based on this factor, the applicant also had a criminal record, having been found guilty of injuring his own wife. 79. The Government further argued that the deprivation of the applicant’s Maltese citizenship, which had been implemented immediately, had not adversely affected him since his trading licences had been continuously renewed and he had continued to make use of a Maltese passport. Reference was made to the Court’s findings in, inter alia, Riener v. Bulgaria (no. 46343/99, § 155, 23 May 2006). In the present case (until the time of filing observations), it transpired that the applicant had not been hindered in his movement in and outside Malta. Indeed, he had continued to work in Malta and to reside there with his new family. Thus, in view of the above, there had not been an interference with the applicant’s rights. Also, the Government submitted that the applicant could apply for a work permit which was valid for a period of time and renewable on request, and subsequently obtain a residence permit on that basis. Furthermore, once his immigration status had been regularised, he would be eligible for long-term residence status after five years of legal stay. However, the applicant had not attempted to pursue any of those avenues. Nor had he provided any information as to the possibility of reacquiring Egyptian nationality, or proved that this was impossible. Furthermore, if he feared returning to Egypt, he could have applied for refugee status or humanitarian protection. 80. In so far as the applicant complained of the State’s positive obligations, the Government submitted that he had to prove the existence of private and family life at the time when the impugned measure had been adopted (they referred to Boujlifa, cited above, § 36). Thus, in the Government’s view, the date to be considered for this purpose was that when the grounds for the deprivation of citizenship had materialised, namely 16 January 1998. 81. However, the committee conducting inquiries had found that the applicant had had no relationship with his first son. Nor had he, in 1998, had any relationship with the woman who was to become his second wife. Consequently, the applicant could not argue that he had had a “family life” in 1998. As in Adeishvili (Mazmishvili) v. Russia (no. 43553/10, § 82 ‑ 83, 16 October 2014), the applicant’s relationship with his second wife had developed at a time when they were both aware of his precarious position as far as his citizenship was concerned. 82. The Government considered that the applicant was to blame for not having informed the Department of Citizenship and Expatriate Affairs, at the relevant time, about the judgment annulling his first marriage. It was not for the Government to keep abreast of such developments, which were dealt with by different authorities, and the applicant’s failure to inform the authorities only showed his bad faith. The Government submitted that once the matter had come to the attention of the relevant authorities, they had started investigations. While it was true that the process had encountered some difficulties and thus some delay, this was due to the fact that it related to events that had happened ten years earlier. 83. Distinguishing between a removal order and deprivation of citizenship, in the absence of any adverse effects on the applicant, the Government were of the view that the Maltese authorities did not have a positive obligation to regularise the applicant’s status when revoking his Maltese citizenship. 2. The Court’s assessment 84. The Court observes that old cases concerning loss of citizenship, whether already acquired or born into, were consistently rejected by the Convention organs as incompatible ratione materiae with the provisions of the Convention, in the absence of such a right being guaranteed by the Convention (see, for example, X. v. Austria, no. 5212/71, Commission decision of 5 October 1972, Collection of Decisions 43, p. 69). However, as noted above, in recent years the Court has held that although the right to citizenship is not as such guaranteed by the Convention or its Protocols, it cannot be ruled out that an arbitrary denial of citizenship might in certain circumstances raise an issue under Article 8 of the Convention because of the impact of such a denial on the private life of the individual (see references mentioned at paragraph 62 above). 85. Indeed, most of the cases concerning citizenship brought before the Court since the above-mentioned development in the case-law have concerned applicants claiming the right to acquire citizenship and the denial of recognition of such citizenship (see, for example, Karassev, cited above), as opposed to a loss of citizenship already acquired or born into. Nevertheless, the Court considers that the loss of citizenship already acquired or born into can have the same (and possibly a bigger) impact on a person’s private and family life. It follows that there is no reason to distinguish between the two situations and the same test should therefore apply. Thus, an arbitrary revocation of citizenship might in certain circumstances raise an issue under Article 8 of the Convention because of its impact on the private life of the individual. Therefore, in the present case it is necessary to examine whether the decisions of the Maltese authorities disclose such arbitrariness and have such consequences as might raise issues under Article 8 of the Convention. 86. The Court notes that the decision to deprive the applicant of his citizenship was in accordance with the law, namely Article 14 (previously Article 9) of the Citizenship Act, which provides that “the Minister may ... deprive of his Maltese citizenship any citizen of Malta who is such by registration or naturalisation if [the Minister] is satisfied that the registration or certificate of naturalisation was obtained by means of fraud, false representation or the concealment of any material fact”. The Court notes that Article 27 § 1 only states that the amendments to the Citizenship Act would not affect the granting or retention of citizenship obtained prior to the enactment of such amendments, and thus it has no bearing on the application of Article 14 (former Article 9), which has not undergone any amendments. The Court further accepts the Government’s argument that the transitory provision in Article 27 § 2 of the Citizenship Act (see paragraph 32 above) does not apply to the applicant, as his application had already been processed and determined. Thus, his citizenship was obtained prior to the amendments to the Citizenship Act enacted in 2000. It follows that the deprivation of citizenship was in accordance with the law. 87. Moreover, the Court observes that, in accordance with Article 14 § 4 of the Citizenship Act – which was applicable in 2006 when the applicant was informed that an order was to be made to deprive him of his Maltese citizenship – prior to the Minister’s decision, the applicant was informed of the possibility of requesting an inquiry, and in fact proceeded to take such action. Thus, the applicant had the opportunity – of which he availed himself – to defend himself in a procedure which consisted of a number of hearings where he was assisted by a lawyer and where oral and written submissions were made, and evidence, including witness testimony, was produced before the relevant board. He subsequently had the opportunity to challenge that decision before the courts with constitutional jurisdiction affording the relevant guarantees. It follows that the decision depriving the applicant of his citizenship was accompanied by the necessary procedural safeguards. 88. Although it could be questioned whether in the instant case the authorities acted diligently and swiftly (see, mutatis mutandis, Nunez v. Norway, no. 55597/09, § 82, 28 June 2011, and Borisov v. Lithuania, no. 9958/04, § 112, 14 June 2011), the Court notes that any delay occurring did not disadvantage the applicant, who continued to benefit from the situation (compare Kaftailova v. Latvia (striking out) [GC], no. 59643/00, § 53, 7 December 2007). 89. The Court therefore concludes that the decision of the Maltese authorities to deprive the applicant of his Maltese citizenship was not arbitrary. Furthermore, the applicant was aware that when his marriage was annulled his citizenship could be revoked at any time by the Minister, and thus that he was in a precarious situation. Moreover, the Court cannot ignore the fact that the situation complained of came about as a result of the applicant’s fraudulent behaviour (see paragraphs 14 and 24 above) and that any consequences complained of are to a large extent a result of his own choices and actions (compare Shevanova v. Latvia (striking out) [GC], no. 58822/00, § 49, 7 December 2007). 90. As to the consequences of the revocation of the applicant’s Maltese citizenship, the Court notes that, as held above (see paragraph 56 above), the applicant is not threatened with expulsion from Malta. Importantly, although the applicant’s Russian wife has lost her exempt person status, the applicant’s sons VR and VL have not lost their Maltese citizenship, nor have there been any attempts to that effect by the authorities in the nine years since the applicant was deprived of his Maltese citizenship. Furthermore, as admitted by the applicant himself, to date he has been able to pursue his business and continues to reside in Malta. 91. The Court reiterates that neither Article 8 nor any other provision of the Convention can be construed as guaranteeing, as such, the right to a particular type of residence permit (see Kaftailova, cited above, § 51). If it allows the holder to reside within the territory of the host country and to exercise freely there the right to respect for his or her private and family life, the granting of such a permit represents in principle a sufficient measure to meet the requirements of that provision. In such cases, the Court is not empowered to rule on whether the individual concerned should be granted one particular legal status rather than another, that choice being a matter for the domestic authorities alone (see Sisojeva and Others, cited above, § 91; Aristimuño Mendizabal v. France, no. 51431/99, § 66, 17 January 2006; Dremlyuga v. Latvia (dec.), no. 66729/01, 29 April 2003; and Gribenko v. Latvia (dec.), no. 76878/01, 15 May 2003). In this connection, the Court notes that various possibilities appear to be open to the applicant (see paragraphs 37 and 79 above), such as applying for a work permit, and subsequently a residence permit, which could eventually again make him eligible for citizenship. However, the applicant has taken no such steps, which could have prevented any adverse impact on his private and family life (compare Savoia and Bounegru, cited above), and no valid explanation has been given for his inaction. The Court notes that the only alleged obstacle referred to by the applicant is a legal provision which is not yet in force (see paragraphs 37 and 39 above). 92. Similarly, in connection with the applicant’s claim that he is currently stateless, the Court notes that although, according to a letter by the Consul of the embassy of the Arab Republic of Egypt, the applicant’s request to renounce his Egyptian nationality was approved and his Egyptian passport withdrawn (see paragraph 10 above), he has not provided the Court with any official document (such as a presidential decree, which appears to be issued in such circumstances) confirming such renunciation. Nor has the applicant provided any information as to the possibilities of reacquiring Egyptian nationality (in the event that he has truly renounced that nationality). In any event, the fact that a foreigner has renounced his or her nationality of a State does not mean in principle that another State has the obligation to regularise his or her stay in the country (see, for instance, the case of Romanians who renounced their nationality and wanted to remain in Germany, in Dragan and Others v. Germany (dec.), no. 33743/03, 7 October 2004). 93. As to the applicant’s limited freedom of movement, which would more appropriately be examined under Article 2 of Protocol No. 4 to the Convention, the Court notes that this complaint was not brought before the domestic authorities, even though the applicant was meant to return his passport in 2007, when the decision to revoke his citizenship was issued. The fact that he failed to submit his passport to the authorities and continued to reap its benefits until 2014, when his passport expired, does not exempt the applicant from the obligation to exhaust relevant domestic remedies. The Court cannot but note a pattern of inaction on the part of the applicant. 94. Given the above considerations, an assessment of the State’s negative obligations under Article 8 of the Convention is not warranted in the present case. Nor does the Court need to assess the State’s positive obligations, given that as the situation stands the applicant runs no risk of being deported (see paragraphs 54 and 56 above). 95. Bearing in mind the situation as it currently stands, the Court finds that there has been no violation of Article 8 of the Convention. | The Court firstly observed that a loss of a citizenship already acquired or born into, as in the applicant’s case, could have the same (and possibly a bigger) impact on a person’s private and family life as a person claiming the right to acquire citizenship or complaining about the denial of recognition of such citizenship. Thus, also in these situations an arbitrary revocation of citizenship could in certain circumstances raise an issue under Article 8 of the Convention because of its impact on the private life of the individual. However, the Court held that there had been no violation of Article 8 of the Convention in the applicant’s case, finding that, in the circumstances of the case, the decision depriving him of his citizenship had not been arbitrary. The Court noted in particular that the decision had had a clear legal basis under the relevant national law and had been accompanied by hearings and remedies consistent with procedural fairness. It had to be borne in mind also that that situation had come about as a result of the applicant’s fraudulent behaviour. Indeed, any consequences complained of were to a large extent a result of his own choices and actions. Besides, the applicant, who was not threatened with expulsion from Malta, had nonetheless been able to pursue his business activities and to reside in Malta and it had still been open to him to apply for a work permit and a residence permit there, which could eventually also make him eligible for citizenship. Lastly, he had not sufficiently convinced the Court that he had relinquished his Egyptian nationality nor demonstrated that he would not be able to re-acquire it if he had done so. |
223 | Scope | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Competence of the Constitutional Court 40. The Constitutional Court has jurisdiction to review the constitutionality and lawfulness of the acts of the President (Articles 102, 10 5 and 106 of the Constitution). Acts of the President cease to have legal effect if the Constitutional Court rules that they are in breach of the Constitution (Article 107 of the Constitution). 41. Decisions of the Constitutional Court have statutory force and are final (Article 107 of the Constitution). The power of the Constitutional Court to declare a legal act unconstitutional may not be circumvented by the subsequent adoption of a similar legal act ( section 72 of the Constitutional Court Act ). 42. In addition, the Constitutional Court may be called upon to determine whether certain acts of a president against whom impeachment proceedings have been instituted are in breach of the Constitution (Article 105 of the Constitution). No appeal lies against the court's conclusions ( section 83 ( 2 ) of the Constitutional Court Act ). However, the final decision on the sustainability of allegations giving rise to impeachment proceedings is taken by the Seimas on the basis of the Constitutional Court's conclusions (Article 107 § 3 of the Constitution; see also below). 43. Article 104 of the Constitution provides that, in discharging their duties, the judges of the Constitutional Court act independently of any other State institution, person or organisation, and are guided only by the Constitution. 44. Section 48 of the Constitutional Court Act provides that a judge of the Constitutional Court may withdraw or be removed from a case if he or she, inter alia, is a relative of one of the parties to the case or has publicly declared how it should be decided. B. Impeachment proceedings 45. Article 86 of the Constitution provides that the President of Lithuania is immune from any criminal liability while in office. However, under Article 74 of the Constitution, he or she may be removed from office following impeachment proceedings, inter alia for a gross violation of the Constitution or a breach of the constitutional oath. The decision is taken by the Seimas (Article 107 § 3 of the Constitution). 46. In accordance with Articles 227 and 228 of the Statute of the Seimas, impeachment is a parliamentary procedure aimed at determining the constitutional liability of the highest - ranking officials, such as the President of the Republic or members of parliament, for acts carried out while in office which undermine the authorities'credibility. Impeachment proceedings may be initiated by a quarter of the members of the Seimas where such an official is alleged to have committed a gross violation of the Constitution and/or a breach of the constitutional oath and/or is suspected of committing a criminal offence (Articles 229 and 230 of the Statute of the Seimas). They are to be conducted in accordance with the rules of criminal procedure (Article 246 § 3 of the Statute of the Seimas). 47. Having received a petition for impeachment, the Seimas sets up a special investigation commission, which sits in private (Article 238 of the Statute of the Seimas ) and hears evidence from the parties to the procedure, witnesses and experts, in accordance with the rules of criminal procedure (Article 239 of the Statute of the Seimas ). It reports its findings to the Seimas as to whether there are grounds to institute impeachment proceedings (Article 2 4 1 of the Statute of the Seimas). If the Seimas – sitting in public – considers that such grounds exist, it passes a resolution to initiate the proceedings, requesting the Constitutional Court to determine whether the acts of the person indicated in the impeachment charges are in breach of the Constitution (Article 2 40 of the Statute of the Seimas and Article 106 of the Constitution ). On the basis of the Constitutional Court's conclusions (Article 105 of the Constitution), the Seimas conducts an inquiry ( likewise observing the basic rules of criminal procedure) and ultimately decides whether the person against whom the proceedings have been brought should be removed from office for a gross violation of the Constitution, on the basis of the available evidence and testimony (Articles 2 46 to 258 and 260 of the Statute of the Seimas; Article 74 and Article 107 § 3 of the Constitution ). 48. In its ruling of 31 March 2004, in which it set out its conclusions in case no. 14/04 ( see paragraph 27 above), the Constitutional Court provided the following clarifications : “... The provision of Article 107 § 2 of the Constitution whereby decisions of the Constitutional Court on issues within its competence are final and not subject to appeal also means that when deciding whether or not to remove the President from office, the Seimas may not reject, change or question the Constitutional Court's conclusion that specific acts of the President are (or are not) in breach of the Constitution. No such powers are assigned to the Seimas by the Constitution. [ Such a ] conclusion ... is binding on the Seimas in so far as the Constitution does not empower it to decide whether the Constitutional Court's conclusions are well-founded and lawful; only the [ Constitutional ] Court can establish that the actions of the President are (or are not) in breach of the Constitution. Under Article 74 of the Constitution, only the Seimas may remove the President from office for a gross violation of the Constitution. Thus, the Constitution assigns the Seimas and the Constitutional Court different functions in impeachment proceedings, and confers on them the respective powers necessary to discharge those functions: the Constitutional Court decides whether specific acts of the President are in breach of the Constitution and submits its conclusions to the Seimas ( Article 105 § 3, point (4), of the Constitution), whereas the Seimas, in the event that the President has committed a gross violation of the Constitution, decides whether or not to remove him from office (Article 74 of the Constitution) ... Under Article 107 § 3 of the Constitution, the Seimas is empowered to decide whether to remove the President from office, but not to determine whether his acts are in breach of the Constitution. It should be noted that this constitutional provision whereby only the Constitutional Court is empowered to decide ( through its conclusions on the matter ) whether specific acts of the President are in breach of the Constitution represents a further guarantee for the President that his constitutional liability will not be incurred unreasonably. Thus, if the Constitutional Court reaches the conclusion that the President's acts are not in breach of the Constitution, the Seimas may not remove him from office for a gross violation of the Constitution ... ” 49. In addition to possible constitutional liability, a person removed from public office may incur ordinary liability ( teisinė atsakomybė ). 50. According to the Constitutional Court's ruling of 11 May 1999 on the compliance of Article 259 of the Statute of the Seimas of the Republic of Lithuania with the Lithuanian Constitution, “the constitutional sanction applied in the context of impeachment proceedings is of an irreversible nature”. In the same ruling the Constitutional Court also stated that fair -trial principles applied in impeachment proceedings, meaning that the persons charged “must have the right to be heard and a legally guaranteed opportunity to defend their rights”. C. Election of the President and of members of the Seimas 51. Article 56 of the Constitution provides: “ Any citizen of the Republic of Lithuania who is not bound by an oath or pledge to a foreign State, and who, on the date of the election, is at least twenty-five years of age and permanently resident in Lithuania, may be elected as a member of the Seimas. Persons who have not completed a sentence imposed by a court, and persons declared legally incapable by a court, may not be elected as members of the Seimas. ” 52. As mentioned above, on 4 May 2004 the Seimas amended the Presidential Elections Act by inserting the following provision : “ A person who has been removed from parliamentary or other office by the Seimas in impeachment proceedings may not be elected President of the Republic if less than five years have elapsed since his removal from office.” Following the Constitutional Court's ruling of 25 May 2004 (see paragraph 34 above), the Seimas passed an amendment to the Seimas Elections Act, to the effect that any official who had been removed from office following impeachment proceedings was disqualified from being a member of parliament. 53. The Constitution further provides : Article 59 “ ... Newly elected members of the Seimas shall acquire all the rights of a representative of the nation only after taking an oath before the Seimas to be loyal to the Republic of Lithuania. Members of the Seimas who do not take the oath according to the procedure established by law, or who take a conditional oath, shall forfeit their parliamentary office...” Article 78 “ Any person who is a Lithuanian citizen by birth, who has lived in Lithuania for at least the three years preceding the election, is at least 40 years old on the date of the election and is eligible for election as a member of the Seimas may be elected President of the Republic. The President of the Republic shall be elected by the citizens of the Republic of Lithuania for a five-year term by universal, equal and direct suffrage by secret ballot. The same person may not be elected President of the Republic for more than two consecutive terms. ” Article 79 “ Any citizen of the Republic of Lithuania who satisfies the conditions set forth in the first paragraph of Article 78 and has collected the signatures of no fewer than 20,000 voters shall be registered as a candidate for the office of President. There shall be no limit on the number of candidates for the office of President. ” 54. Article 82 of the Constitution provides: “ The newly elected President of the Republic shall take office ... after swearing an oath to the nation in Vilnius, in the presence of the representatives of the people, namely the members of the Seimas, to be loyal to the Republic of Lithuania and the Constitution, to fulfil the duties of his office conscientiously, and to be equally just to all. A person re-elected President of the Republic shall also take the oath. The record of the oath taken by the President of the Republic shall be signed by him and by the President of the Constitutional Court or, in the latter's absence, by another judge of the Constitutional Court. ” 55. Pursuant to section 3 of the Presidential Office Act, the newly elected President takes the following oath: “I (name and surname) Swear to the nation to be loyal to the Republic of Lithuania and the Constitution, to observe and enforce the law, and to protect the integrity of Lithuanian territory; I swear to fulfil conscientiously the duties of [ presidential ] office, and to be equally just to all; I swear to strengthen the independence of Lithuania, to the best of my ability, and to serve my homeland, democracy and the welfare of the people of Lithuania ... ” D. Other provisions 56. Article 29 of the Constitution provides that “ [a]ll persons shall be equal before the law, the courts, and other State institutions and officials. ” Article 84 § 21 of the Constitution states that the President “ shall grant citizenship of the Republic of Lithuania in accordance with the procedure established by law ”. 57. Section 16 ( 1 ) of the Citizenship Act provides that the President may grant Lithuanian citizenship by way of exception – that is, without applying the usual eligibility requirements – to foreign citizens of special merit rendering them worthy of becoming a citizen of the Republic of Lithuania. 58. Articles 68 and 71 of the Constitution read as follows : Article 68 “ The right to initiate legislation in the Seimas shall be vested in members of the Seimas, the President of the Republic and the Government. Citizens of the Republic of Lithuania shall also have the right to initiate legislation. A Bill may be brought before the Seimas by 50,000 citizens with the right to vote, and the Seimas must consider it.” Article 71 “ Within ten days of receiving a law passed by the Seimas, the President of the Republic shall either sign and officially promulgate the law, or shall send it back to the Seimas, with reasoned observations, for reconsideration. If a law passed by the Seimas is not sent back or signed by the President within the prescribed period, the law shall enter into force after it has been signed and officially promulgated by the Speaker of the Seimas. The President of the Republic must, within five days, sign and officially promulgate any laws or other instruments adopted by referendum. If such a law is not signed and promulgated by the President within the prescribed period, the law shall enter into force after it has been signed and officially promulgated by the Speaker of the Seimas .” IV. LAW AND PRACTICE REGARDING IMPEACHMENT IN THE MEMBER STATES OF THE COUNCIL OF EUROPE 60. The term “ impeachment ” denotes a formal indictment procedure whereby the legislature may remove from office a head of State, a senior official or a judge for breaching the law or the Constitution. The purpose of impeachment is in principle to allow the institution of criminal proceedings in the courts against the person concerned, but in practice it does not necessarily produce such an outcome. 61. The legal systems of the majority of the Council of Europe's member States with a republican system make specific provision for the impeachment of the head of State ( Albania, Austria, Azerbaijan, Bulgaria, Croatia, Czech Republic, France, Georgia, Germany, Greece, Hungary, Ireland, Italy, Lithuania, Moldova, Montenegro, Poland, Romania, Russian Federation, Serbia, Slovakia, Slovenia, “the former Yugoslav Republic of Macedonia”, Turkey and Ukraine ). Impeachment proceedings may be instituted on the following grounds (for Lithuania, see paragraph 46 above): breach of the Constitution or undermining of the constitutional order ( Austria, Bulgaria, Croatia, Georgia, Germany, Greece, Hungary, Moldova, Romania, Slovakia, Slovenia, “the former Yugoslav Republic of Macedonia” ); high treason ( Bulgaria, Cyprus, Czech Republic, Finland, France, Greece, Italy, Romania, Russian Federation ); breach of the law ( Germany, Hungary ); an ordinary or serious criminal offence ( Finland, Russian Federation ); or immoral conduct ( Ireland ). 62. In most of these republics, impeachment proceedings have no direct effects on the electoral and other political rights of a head of State who is removed from office. However, in Austria, if the Federal President is removed from office following impeachment proceedings, the Constitutional Court may order the temporary forfeiture of “political rights” if there are particularly aggravating circumstances. Similarly, in Poland the special court with competence in such matters may, in addition to removing the President from office, temporarily deprive him or her of certain political rights ( general disqualification from standing for election for a period of up to ten years, prohibition from occupying certain positions for a similar period and revocation of orders and other honorary titles ). In Slovakia and the Czech Republic, a person removed from presidential office as a result of impeachment proceedings permanently forfeits the right to stand for election as President but may be a candidate in any other elections; in the Russian Federation he or she is barred only from standing in the presidential elections called as a result of his or her removal from office. THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 §§ 1, 2 AND 3 OF THE CONVENTION, ARTICLE 7 OF THE CONVENTION AND ARTICLE 4 OF PROTOCOL No. 7 63. The applicant alleged a violation of his right to a fair hearing in connection with the two sets of proceedings in the Constitutional Court, concerning Decree no. 40 and the merits of the impeachment charges against him. He submitted that because of collusion between the court's President and the member of the Seimas who had initiated the proceedings against him, the Constitutional Court could not be considered an independent and impartial tribunal, and noted that that court had subsequently issued a public response to his accusations of bias on its part; in a supplement to his application, dated 30 November 2006, he added that the Constitutional Court's endorsement of the conclusions of the declaration of 25 March 2004 by the Seimas showed that it had been put under considerable pressure by Parliament as a result of such collusion. He further submitted that he had been unable to defend himself effectively and that, in the impeachment proceedings, his lawyers had not had access to certain classified documents which the special investigation commission had examined and the Constitutional Court had exceeded its powers by making findings as to the facts and the issue of “guilt”. He relied on Article 6 §§ 1 and 3 ( b) of the Convention, which provides : “1. In the determination of his civil rights and obligations or 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; ...” Furthermore, in another supplement to his application, dated 30 September 2005, the applicant submitted that by justifying his permanent disqualification from elected office on the ground that there would always be reasonable doubt as to the reliability of any constitutional oath sworn by him in future, the Constitutional Court's ruling of 25 May 2004 had established a presumption of guilt, in breach of Article 6 § 2 of the Convention. In the supplement of 30 November 2006 to his application, he added that the declaration of 25 March 2004 by the Seimas had breached the same provision, which provides : “ Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. ” In addition, in the supplement of 30 September 2005 to his application the applicant complained that the sanction imposed on him as a result of the impeachment proceedings, namely removal from office and a lifelong ban on standing for election, was more severe than the penalties envisaged by the criminal law for equivalent offences, adding that lifelong disqualification from elected office was not provided for by law and was, to say the least, “bizarre”. On that account he alleged a violation of Article 7 of the Convention, which provides : “1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. 2. This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.” Lastly, the applicant submitted that the institution of impeachment proceedings followed by criminal proceedings in his case amounted to trying him twice for the same offence. He relied on Article 4 § 1 of Protocol No. 7, which provides : “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.” 64. The Court must determine at the outset whether the provisions relied on by the applicant are applicable in the instant case. 65. With regard to Article 6 § 1 of the Convention, the Court reiterates that the fact that proceedings have taken place before a constitutional court does not suffice to remove them from the ambit of that provision. It must therefore be ascertained whether the proceedings before the Constitutional Court in the instant case did or did not relate to the “ determination ” of the applicant's “ civil rights and obligations” or of a “criminal charge” against him ( see Pierre-Bloch v. France, 2 1 October 1997, § 48, Reports of Judgments and Decisions 1997 ‑ VI). 66. The first set of proceedings concerned the review of the compliance with the Constitution and the Citizenship Act of a decree issued by the applicant by virtue of his presidential powers, granting Lithuanian citizenship to J.B. “by way of exception”. The purpose of the second set of proceedings was to determine whether, in discharging his duties as President, the applicant had committed gross violations of the Constitution or breached his constitutional oath. It is therefore clear that the proceedings in question did not concern the determination of the applicant's civil rights or obligations. For the Court to conclude that they likewise did not concern a “criminal charge”, it is sufficient for it to find that they did not involve the imposition of a sanction by the Constitutional Court against the applicant. Admittedly, it notes in this connection that the second set of proceedings formed a stage of the impeachment proceedings instituted by the Seimas, the purpose of which was to determine whether or not the applicant should remain in office as President and be eligible to stand for election. However, in any event, in the context of impeachment proceedings against the President of Lithuania for a gross violation of the Constitution or a breach of the presidential oath, the measures of removal from office and (consequent) disqualification from standing for election involve the head of State's constitutional liability, so that, by virtue of their purpose, they lie outside the “criminal” sphere. Furthermore, and above all, the decision to remove the President from office is taken not by the Constitutional Court but by Parliament. 67. The Court thus concludes that Article 6 § 1 of the Convention is not applicable in either its civil or its criminal aspect to the Constitutional Court proceedings in issue. 68. It also follows from the foregoing that the applicant was not “charged with a criminal offence” within the meaning of Article 6 § 2 of the Convention in those proceedings, or “convicted” or “ tried or punished ... in criminal proceedings ” within the meaning of Article 4 § 1 of Protocol No. 7, and that the proceedings did not result in his being held “guilty of a criminal offence” or receiving a “penalty” within the meaning of Article 7 of the Convention. Those provisions likewise do not apply in the present case. 69. It follows that this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4. II. ALLEGED VIOLATION OF ARTICLE 3 OF PROTOCOL No. 1 70. In the supplement of 30 September 2005 to his application the applicant complained of his lifelong disqualification from elected office, arguing that permanently denying him the opportunity to stand for election although he was a politician enjoying considerable popular support was contrary to the very essence of free elections and was a wholly disproportionate measure. In the supplement of 30 November 2006 to his application he further submitted that the amendment of electoral law passed following his removal from office had been arbitrary and designed to bar him from holding any public office in future. He 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.” A. Admissibility 1. Applicability of Article 3 of Protocol No. 1 71. The Court reiterates that Article 3 of Protocol No. 1 applies only to the election of the “legislature”. 72. Regard being had to the constitutional structure of Lithuania, it is not in doubt that Article 3 of Protocol No. 1 is applicable to the election of members of the Seimas. The reverse is true, however, as regards the election of the President of Lithuania. It follows that, in so far as the applicant complained about his removal from office or disqualification from standing for the presidency, this part of the application is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 and must be rejected pursuant to Article 35 § 4. 2. Exhaustion of domestic remedies 73. The Government submitted that parliamentary elections had been held in 2004 and 2008 and that the applicant had not expressed the wish to be a candidate in them. Had his candidacy been refused, it would have been open to him to apply to the administrative courts, which could then have requested the Constitutional Court to review the constitutionality of the Seimas Elections Act as amended on 15 July 2004. The Government further noted that, as President of Lithuania, the applicant could have applied to the Constitutional Court, under section 61 of the Constitutional Court Act, for an interpretation of its ruling of 11 May 1999, in which it had held that the constitutional sanction imposed in the context of impeachment proceedings was “ of an irreversible nature ”, and asked it to clarify whether this meant lifelong disqualification from standing for election. He would then have had the option of resigning in order to avoid that outcome. In short, the Government argued, this part of the application should be declared inadmissible for failure to exhaust domestic remedies. 74. The applicant submitted in reply that since the Constitutional Court had very clearly ruled on 25 May 2004 that lifelong disqualification from standing for election was a consequence of removal from presidential office, it was certain not only that his registration as a candidate in the 2004 and 2008 parliamentary elections would have been refused but also that any subsequent remedies would have had no prospects of success. He added that an application to the Constitutional Court under section 61 of the Constitutional Court Act for an interpretation of the ruling of 11 May 1999 would have been ineffective, seeing that the meaning of the phrase “of an irreversible nature” was not open to doubt. Lastly, the argument that he would have avoided the impeachment proceedings if he had resigned did not, in his view, call for a response. 75. The Court reiterates 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 it. Thus, the complaint to be submitted to the Court must first have been made to the appropriate national courts, at least in substance, in accordance with the formal requirements of domestic law and within the prescribed time-limits. Nevertheless, the only remedies that must be exhausted are those that are effective and capable of redressing the alleged violation ( see, among many other authorities, Remli v. France, 23 April 1996, § 33, Reports 1996 ‑ II ). More specifically, the only remedies which Article 35 § 1 of the Convention requires to be exhausted are those that relate to the breaches alleged and at the same time are available and sufficient; the existence of such remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness ( see, for example, Selmouni v. France [GC], no. 25803/94, § 75, ECHR 1999-V). It falls to the respondent State, if it pleads non-exhaustion of domestic remedies, to establish that these various conditions are satisfied ( see, among other authorities, Johnston and Others v. Ireland, 18 December 1986, § 45, Series A no. 112, and Selmouni, loc. cit. ). 76. In the instant case the Court observes that in its ruling of 25 May 2004 the Constitutional Court held that a person who had been removed from the office of President for a gross violation of the Constitution or a breach of the oath could never again be elected President of the Republic or a member of the Seimas or hold an office for which it was necessary to take an oath in accordance with the Constitution. It follows from Article 107 of the Lithuanian Constitution that decisions of the Constitutional Court have statutory force and are final. Furthermore, as the Government pointed out in their written observations, the Constitutional Court itself is bound by its own precedents. An appeal against a refusal to register the applicant as a candidate for election to the Seimas would therefore have been bound to fail. Indeed, the Supreme Administrative Court's decision of 28 May 2004 provides an illustration of this point, since it attached decisive weight to the Constitutional Court's conclusions of 25 May 2004 in dismissing the applicant's complaint against the refusal of the Central Electoral Committee to register him as a candidate in the 2004 presidential election. 77. The Court also takes note of the Government's argument that the applicant could have made a prior request to the Constitutional Court for clarification of whether removal from office entailed lifelong disqualification from standing for election and that, if that position were confirmed, he could have resigned before the vote on whether to remove him from office. Such a request could not, however, have prompted an examination of the applicant's particular situation for the purposes of Article 3 of Protocol No. 1. It would also have required him to resign voluntarily as President and thereby to accept such a restrictive condition that the remedy in question could not in any event be regarded as “accessible”. It cannot therefore be classified as a domestic remedy that had to be used for the purposes of Article 35 § 1 of the Convention. 78. It follows from the foregoing that the Government have not shown that a domestic remedy satisfying the requirements of Article 35 § 1 of the Convention was available to the applicant. 3. Compliance with the six-month time-limit 79. The Government submitted that the applicant had raised his complaint under Article 3 of Protocol No. 1 for the first time in a supplement to his application dated 30 September 2005, more than six months after the final domestic decision ( the Constitutional Court's ruling of 25 May 2004). They accordingly contended that this part of the application was out of time and, as such, inadmissible. 80. The applicant submitted in reply, in particular, that he had already raised the complaint under Article 3 of Protocol No. 1 in substance in his application; as a result, his submissions of 30 September 2005 had simply expanded on an argument he had already submitted to the Court within the six-month period prescribed by Article 35 § 1 of the Convention. He pointed out in that connection that in the Ringeisen v. Austria judgment (16 July 1971, § 90, Series A no. 13) the Court had accepted that initial applications could be followed by “ additional documents ”, the purpose of which was “ to fill the gaps or clarify obscure points ”. 81. The Court observes, as the Government did, that the applicant did not raise this complaint in his application, even in substance. He mentioned it for the first time in his supplement of 3 0 September 2005 to the application, more than six months after the Constitutional Court's ruling of 25 May 2004 to the effect that a person removed from office as President for a gross violation of the Constitution or a breach of the constitutional oath could never again be elected as a member of the Seimas – among other positions (see paragraph 34 above) – and the Act of 15 July 2004 amending the Seimas Elections Act accordingly. 82. However, regard should be had to the particular features of the present case. The Court notes in this connection that, in so far as the right under Article 3 of Protocol No. 1 to stand in parliamentary elections is in issue here, the applicant's complaint concerns general provisions which did not give rise in his case to an individual measure of implementation subject to an appeal that could have led to a “final decision” marking the start of the six-month period provided for in Article 35 § 1 of the Convention. Admittedly, it might at first sight have appeared conceivable for the applicant to attempt to register as a candidate in parliamentary elections after his removal from office and, once his registration was refused, to apply to the administrative courts on the basis of Article 3 of Protocol No. 1. However, as noted above, in view of the Constitutional Court's ruling of 25 May 2004, such a remedy would have been ineffective in the present case, and an applicant cannot be required to avail himself of a remedy lacking effectiveness ( see paragraph 7 6 above ). 83. It therefore appears that the applicant's complaint does not concern an act occurring at a given point in time or even the enduring effects of such an act, but rather the Constitutional Court's ruling of 25 May 2004 that a person removed from office as President for a gross violation of the Constitution or a breach of the constitutional oath can never again be elected as a member of the Seimas ( among other positions ), and the Act of 15 July 2004 amending the Seimas Elections Act accordingly. He is therefore complaining of provisions giving rise to a continuing state of affairs, against which no domestic remedy is in fact available to him. However, as the European Commission of Human Rights noted in the De Becker v. Belgium decision (9 June 1958, no. 214/56, Yearbook 2), the existence of the six-month period specified in Article 35 § 1 of the Convention is justified by the wish of the High Contracting Parties to prevent past judgments being constantly called into question. Although this represents a “legitimate concern for order, stability and peace”, it cannot be allowed to stand in the way of the consideration of a permanent state of affairs which is not a thing of the past but still continues without any domestic remedy being available to the applicant; since there is no justification for the application of the rule, there can be no question of his being debarred by lapse of time. The Commission added that accordingly, “when [it] receives an application concerning a legal provision which gives rise to a permanent state of affairs for which there is no domestic remedy, the problem of the six months period specified in Article 26 [ of the Convention ( current Article 35 § 1)] can arise only after this state of affairs has ceased to exist; ... in the circumstances, it is exactly as though the alleged violation was being repeated daily, thus preventing the running of the six months period”. The Court itself has subsequently applied this principle. Thus, it has considered the merits of a number of applications which concerned statutory provisions that had not given rise to individual decisions against the applicants but had produced a permanent state of affairs, and which had been lodged more than six months after the entry into force of the provisions in question ( see, for example, Hirst v. the United Kingdom (no. 2) [GC], no. 74025/01, ECHR 2005-IX, and Sejdić and Finci v. Bosnia and Herzegovina [GC], nos. 27996/06 and 34836/06, ECHR 2009-.. . ). 84. In the instant case no domestic remedy is available to the applicant and the state of affairs complained of has clearly not ceased. It cannot therefore be maintained that this part of the application is out of time. 4. Application of Article 17 of the Convention 85. The Government submitted that it would be contrary to the general principles set forth in the Court's case-law concerning protection of democracy for the applicant to be able to stand in parliamentary elections after having breached his constitutional oath. They added that his real aim was to be re-elected President in the election called for 13 June 2004, and not to become a member of the Seimas. In their submission, the applicant was seeking to use the Convention machinery to gain political revenge and regain the highest State office. 86. The applicant asserted in reply that his aim was to obtain a judgment from the Court which would have the effect of allowing him to stand in parliamentary or presidential elections, and that such an aim could not constitute an abuse of rights for the purposes of Article 17 of the Convention. 87. The Court reiterates, firstly, that “ the purpose of Article 17, in so far 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; ... 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 ...” ( see Lawless v. Ireland, 1 July 1961, § 7, pp. 45-46, Series A no. 3). Since the general purpose of Article 17 is, in other words, to prevent individuals or groups with totalitarian aims from exploiting in their own interests the principles enunciated in the Convention ( see W.P. and Others v. Poland ( dec. ), no. 42264/98, ECHR 2004-VII, and Norwood v. the United Kingdom, no. 23131/03, ECHR 2004-XI), this Article is applicable only on an exceptional basis and in extreme cases, as indeed is illustrated by the Court's case-law. 88. The Court has held, in particular, that a “ remark directed against the Convention's underlying values ” is removed from the protection of Article 10 by Article 17 ( see Lehideux and Isorni v. France, 2 3 September 1998, § 53, Reports 1998-VII, and Garaudy v. France ( dec. ), no. 65831/01, ECHR 2003-IX). Thus, in Garaudy (ibid.), which concerned, in particular, the conviction for denial of crimes against humanity of the author of a book that systematically denied such crimes perpetrated by the Nazis against the Jewish community, the Court found the applicant's Article 10 complaint incompatible ratione materiae with the provisions of the Convention. It based that conclusion on the observation that the main content and general tenor of the applicant's book, and thus its aim, were markedly revisionist and therefore ran counter to the fundamental values of the Convention and of democracy, namely justice and peace, and inferred from that observation that he had attempted to deflect Article 10 from its real purpose by using his right to freedom of expression for ends which were contrary to the text and spirit of the Convention ( see also Witzsch v. Germany (dec.), no. 4785/03, 13 December 2005 ). The Court reached the same conclusion in, for example, Norwood ( (dec.), cited above ) and Pavel Ivanov v. Russia ( ( dec .), no. 35222/04, 20 February 2007 ), which concerned the use of freedom of expression for Islamophobic and anti-Semitic purposes respectively. In Orban and Others v. France (no. 20985/05, § 35, 15 January 2005 ) it noted that statements pursuing the unequivocal aim of justifying war crimes such as torture or summary executions likewise amounted to deflecting Article 10 from its real purpose. In the same vein, the Court has held that Article 17 of the Convention prevented the founders of an association whose memorandum of association had anti-Semitic connotations from relying on the right to freedom of association under Article 11 of the Convention to challenge its prohibition, noting in particular that the applicants were essentially seeking to employ that Article as a basis under the Convention for a right to engage in activities contrary to the text and spirit of the Convention ( see W.P. and Others, cited above ). 89. In the present case there is no indication that the applicant was pursuing an aim of that nature. He relied legitimately on Article 3 of Protocol No. 1 to challenge his disqualification from elected office, seeking to obtain a judgment from the Court whose execution at domestic level would have the likely effect of allowing him to stand in parliamentary elections. In other words, he is seeking to regain the full enjoyment of a right which the Convention in principle secures to everyone, and of which he claims to have been wrongly deprived by the Lithuanian authorities, the Government's allegation that the applicant's real aim is to be re-elected President of Lithuania being immaterial in this context. Article 17 of the Convention cannot therefore apply. 5. Conclusion 90. In so far as the applicant's complaint concerns his removal from office or his disqualification from standing for election as President of Lithuania, this part of the application must be rejected pursuant to Article 35 § 4 of the Convention. In so far as it concerns his inability to stand for election to the Seimas, it raises complex issues of fact and law which can only be resolved after examination on the merits. It follows that this part of the application 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. Within these limits, the application must therefore be declared admissible. B. Merits 1. The parties'submissions ( a) The Government 91. The Government noted in the first place that the principle that a person removed from office as President for a gross violation of the Constitution or a breach of the constitutional oath could not stand in presidential or parliamentary elections resulted from an interpretation of the Constitution by the Constitutional Court. However, it was not a new judge-made rule applied for the first time by the Constitutional Court in the applicant's case, but an “implicit” provision of the Constitution which that court had simply confirmed. The Government pointed out that rulings of the Constitutional Court were final and binding on everyone, including the court itself, and that, like the actual text of the Constitution, “implicit” constitutional provisions could be amended only by changing the Constitution. They also emphasised that the conclusions reached by the Constitutional Court in the present case had not been unforeseeable, in particular given that, in a ruling of 11 March 1999 ( see paragraph 50 above ), that court had stressed that the constitutional sanction resulting from removal from office was irreversible; its ruling of 25 May 2004 had thus been consistent with its previous case-law. 92. The Government further noted that the restriction in question, which applied only to the passive aspect of the right protected by Article 3 of Protocol No. 1, was not directed at the applicant personally but at a category of individuals to which he indisputably belonged. They added that the purpose of the restriction was to prevent persons who had committed a gross violation of the Constitution or breached the constitutional oath from holding an office for which it was necessary to take an oath in accordance with the Constitution; it therefore pursued the legitimate aim not only of preserving the democratic order but also of “protecting national security”. In the Government's submission, taking into account what was at stake, the restriction could not be regarded as disproportionate. In that connection they emphasised that such conduct on the part of the highest authorities – especially the head of State – undermined people's trust in State institutions and posed a serious and imminent threat to democracy and the constitutional order. Furthermore, relying on Ždanoka v. Latvia [GC] (no. 58278/00, §§ 100 and 103, ECHR 2006-IV), they highlighted the wide margin of appreciation afforded to States in this sphere and also, referring to the concept of a “ democracy capable of defending itself”, the need to take account of the evolution of the political context in which the measure in issue had been taken; features unacceptable in the context of one country's system could be justified in another system. On that point, they stressed that Lithuania had been a democracy only between 1918 and 1940 and after 1990; accordingly, it did not have a long -standing democratic tradition, society had not completely rid itself of the “remnants of the totalitarian occupying regime” – including corruption and a lack of public trust in State institutions – and there were numerous examples of inappropriate and unethical conduct in politics. Lithuania's political, historical, cultural and constitutional situation therefore justified the measure in question, even though it might appear excessive in a well-established democracy. That position was all the more compelling in this instance since the head of State was the institution to which the nation had entrusted the duties of protecting and defending the constitutional order and democracy. Lastly, the lack of a European consensus in this area served to confirm that in deciding that persons dismissed following impeachment proceedings should be permanently disqualified from elected office, Lithuania remained within its margin of appreciation. 93. In addition, relying on Ždanoka ( cited above, §§ 112-14), the Government emphasised that the categories of persons affected by the prohibition imposed on the applicant were clearly and precisely defined and that the applicable rules afforded the highest possible degree of individualisation and guarantees against arbitrariness. They noted in that connection that two institutions were involved in impeachment proceedings, namely the Seimas and the Constitutional Court; only the former could initiate them, and only the latter could rule on whether there had been a violation of the Constitution or a breach of the constitutional oath. Only if the Constitutional Court had established such a violation could the Seimas remove the person concerned from office ( and, moreover, this required a three-fifths majority of all members of the Seimas ). They also pointed out that impeachment proceedings were judicial in nature, that the rules of criminal procedure applied, that in such proceedings the Seimas was presided over not by one of its members but by a member of the Supreme Court, and that the decision included reasons and was taken following an objective public investigation into the circumstances of the case. In the instant case, moreover, the applicant had had the opportunity to escape “full” constitutional liability by resigning after the Constitutional Court's opinion of 31 March 2004; he would thereby have avoided being removed from office and the resulting disqualification from standing for election. ( b) The applicant 94. In the applicant's submission, the Constitutional Court's finding that removal from office for a gross violation of the Constitution or a breach of the constitutional oath was irreversible – to such an extent that it could not even be challenged in a popular vote – was excessive. This was particularly true in his case since, although the charges forming the basis for his removal from office were criminal in nature, they had either not given rise to a criminal prosecution after his immunity had been lifted or they had resulted in his acquittal. He was therefore subject to a permanent sanction based on a questionable decision by a court that appeared biased, on account of acts constituting criminal offences in respect of which he had either been acquitted or not prosecuted. 95. The applicant – who likewise referred to the principles set forth by the Court in Ždanoka (cited above) – submitted that even assuming that the aim pursued had been legitimate, it was unacceptable for it to have been attained in his case through violations of the Constitution resulting, for example, from retrospective application of the law and denial of a fair trial. He further contended that the restriction of his right under Article 3 of Protocol No. 1 was disproportionate in that it was not subject to a time-limit. Noting in that connection that in the Ždanoka case the Chamber (judgment of 17 June 2004) had found a violation of that Article for that reason, he argued that since the authoritative nature of the Constitutional Court's rulings meant that his disqualification was permanent, a finding along similar lines was all the more compelling in his case. Although he nonetheless conceded that the European Commission of Human Rights had reached the opposite conclusion in several cases, he pointed out that all those cases had concerned persons found guilty of particularly serious offences such as war crimes or acts of high treason, whereas he had not been convicted of any criminal offence on account of the acts forming the basis of his disqualification from standing for election. Furthermore, in justifying the lack of a time-limit for the disqualification from elected office of a person who had breached his constitutional oath as President by saying that there would always be a doubt as to the reliability of any new oath he would have to take in the event of his subsequent election, the Constitutional Court had lent that measure a preventive purpose which, rather than justifying it, made it even more disproportionate. In the applicant's submission, this amounted to a “presumption of guilt”. 2. The Court's assessment (a) General principles 96. The Court refers to the general principles concerning Article 3 of Protocol No. 1, as set out in the following judgments in particular: Mathieu-Mohin and Clerfayt v. Belgium ( 2 March 1987, §§ 46-54, Series A no. 113 ); Hirst ( cited above, §§ 56-62 ), Ždanoka ( cited above, §§ 102- 15); Ādamsons v. Latvia (no. 3669/03, § 111, ECHR 2008-.. .); and Tănase v. Moldova [GC], no. 7/08, §§ 154-162, ECHR 2010-. .. ). It follows from the foregoing that Article 3 of Protocol No. 1, which enshrines a fundamental principle of an effective political democracy and is accordingly of prime importance in the Convention system, implies the subjective rights to vote and to stand for election ( see Mathieu-Mohin and Clerfayt, cited above, §§ 47-51; Hirst, cited above, §§ 57-58; Ždanoka, cited above, §§ 102- 03; and Tănase, cited above, § § 154-55 ). Although those rights are important, they are not absolute. There is room for “implied limitations”, and Contracting States must be given a margin of appreciation in this sphere ( see Mathieu-Mohin and Clerfayt, cited above, § 52; Hirst, cited above, § 60; and Ždanoka, cited above, § 103). The margin in this area is wide, seeing that there are numerous ways of organising and running electoral systems and a wealth of differences, inter alia, in historical development, cultural diversity and political thought within Europe, which it is for each Contracting State to mould into its own democratic vision ( see Hirst, cited above, § 61, and Ždanoka, loc. cit. ). Thus, for the purposes of applying Article 3 of Protocol No. 1, any electoral legislation or electoral system must be assessed in the light of the political evolution of the country concerned; features that would be unacceptable in the context of one system may accordingly 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 Mathieu-Mohin and Clerfayt, cited above, § 54; Ždanoka, cited above, § § 106 and 115; and Tănase, cited above, § 157 ). In particular, the Contracting States enjoy considerable latitude in establishing criteria governing eligibility to stand for election, and in general, they may impose stricter requirements in that context than in the context of eligibility to vote ( see Ždanoka, cited above, § 115; Ādamsons, cited above, § 111; and Tănase, cited above, § 156 ). However, while the margin of appreciation is wide, it is not all-embracing. 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 restrictions imposed do not curtail the right in question to such an extent as to impair its very essence and deprive it of its effectiveness; that they pursue a legitimate aim; and that the means employed are not disproportionate. In particular, such restrictions must not thwart “ the free expression of the opinion of the people in the choice of the legislature ” ( see Mathieu-Mohin and Clerfayt, cited above, § 52; Hirst, cited above, § 62; Ždanoka, cited above, § 104; and Tănase, cited above, §§ 157 and 161 ). ( b) Application of these principles in the present case 97. In the most recent Grand Chamber case concerning Article 3 of Protocol No. 1 the Court examined whether there had been interference with the applicant's rights under that Article, adding that such interference would constitute a violation unless it met the requirements of lawfulness, pursued a legitimate aim and was proportionate; it then sought to ascertain whether those conditions were satisfied ( see Tănase, cited above, §§ 162 and 163 ‑ 80). 98. Proceeding in the same manner in the instant case, the Court notes at the outset that the applicant, as a former President of Lithuania removed from office following impeachment proceedings, belongs to a category of persons directly affected by the rule set forth in the Constitutional Court's ruling of 25 May 2004 and the Act of 15 July 2004. Since he has thereby been deprived of any possibility of running as a parliamentary candidate, he is entitled to claim that there has been interference with the exercise of his right to stand for election. 99. As to whether the interference was lawful, the Court observes that the principle that a person removed from office as President following impeachment proceedings is no longer entitled to stand for election to the Seimas is clear from the Constitutional Court's ruling of 25 May 2004 and the Act of 15 July 2004. The Court notes that the applicant complained that this rule had been applied with retrospective effect. It reiterates, however, that under Article 3 of Protocol No. 1 it is only required to examine the applicant's inability to stand for election to the Seimas. In any event, in so far as the rule in question entails ineligibility for parliamentary office, it was not applied retrospectively in the applicant's case. In fact, the first parliamentary elections in which he was barred from standing were held in October 2004, long after the above-mentioned ruling and legislative enactment. 100. As to the aim pursued, given that Article 3 of Protocol No. 1 does not contain a list of “legitimate aims” capable of justifying restrictions on the exercise of the rights it guarantees and does not refer to those enumerated in Articles 8 to 11 of the Convention, the Contracting States are free to rely on an aim not mentioned in those Articles, provided that it is compatible with the principle of the rule of law and the general objectives of the Convention ( see, for example, Ždanoka, cited above, § 115). The Court accepts that this is the position in the present case. The prohibition imposed on the applicant is the consequence of his removal from office following impeachment proceedings, the purpose of which, according to the Statute of the Seimas, is to determine the constitutional liability of the highest- ranking State officials for acts carried out while in office which undermine the authorities'credibility. The measure thus forms part, according to the reasons given in the Constitutional Court's ruling of 24 May 2004, of a self-protection mechanism for democracy through “ public and democratic scrutiny ” of those holding public office, and pursues the aim of excluding from the legislature any senior officials who, in particular, have committed gross violations of the Constitution or breached their constitutional oath. As the Government submitted, the measure is thus intended to preserve the democratic order, which constitutes a legitimate aim for the purposes of Article 3 of Protocol No. 1 ( see, for example, Ždanoka, cited above, § 118). 101. In assessing the proportionality of the interference, it should above all be emphasised that Article 3 of Protocol No. 1 does not exclude the possibility of imposing restrictions on the electoral rights of a person who has, for example, seriously abused a public position or whose conduct has threatened to undermine the rule of law or democratic foundations ( see, for example, Ždanoka, cited above, § 110). The present case concerns circumstances of this kind. In the context of impeachment proceedings, the Constitutional Court held that by having, while in office as President, unlawfully and for his own personal ends granted Lithuanian citizenship to J.B., disclosed a State secret to the latter by informing him that he was under investigation by the secret services, and exploited his own status to exert undue influence on a private company for the benefit of close acquaintances, the applicant had committed a gross violation of the Constitution and breached his constitutional oath. On the basis of that finding, the Seimas removed the applicant from office, his inability to serve as a member of parliament being a consequence of that decision. 102. Furthermore, as the Court observed above, the categories of persons affected by the disqualification are very clearly defined in law, and as a former President removed from office following impeachment proceedings for a gross violation of the Constitution or a breach of the constitutional oath, there is no doubt whatsoever that the applicant belongs to that group. Indeed, that has never been in dispute. There is therefore a clear link between the applicant's disqualification from elected office and his conduct and situation. As a result, the fact that his disqualification was not based on a specific court decision following a review of its proportionality in the individual circumstances of his case is not decisive ( see, for example, Hirst, cited above, § 71; Ždanoka, cited above, §§ 113 ‑ 14, 115 ( d) and 128; and Ādamsons, cited above, §§ 124-25 ), especially since the finding that he had committed a violation of the Constitution and breached his constitutional oath was made by the Constitutional Court, which offers the guarantees of a judicial body. More broadly, the Court observes that in the context of impeachment proceedings, following which a senior State official may be removed from office and barred from standing for election, domestic law provides for a number of safeguards protecting the persons concerned from arbitrary treatment. Firstly, it appears from the case-law of the Constitutional Court and the Statute of the Seimas that the rules of criminal procedure and fair- trial principles apply in impeachment proceedings (see paragraphs 46 and 50 above). In addition, while the decision to initiate such proceedings on account of a gross violation of the Constitution or a breach of the constitutional oath and the final decision to remove a senior official from office are the prerogative of a political body, namely the Seimas, it is the task of a judicial body, namely the Constitutional Court, to rule on whether there has been a violation of the Constitution; if the court finds no such violation, the Seimas cannot remove the official from office. Furthermore, when sitting in impeachment proceedings the Seimas is presided over not by one of its members but by a judge of the Supreme Court, and it cannot remove a person from office other than by a three-fifths majority of its members in a reasoned decision. Lastly, in the specific circumstances of the present case the Court observes that the applicant, assisted by counsel, gave evidence to the Seimas and the Constitutional Court at public hearings. 103. Be that as it may, the Court, while not wishing either to underplay the seriousness of the applicant's alleged conduct in relation to his constitutional obligations or to question the principle of his removal from office as President, notes the extent of the consequences of his removal for the exercise of his rights under Article 3 of Protocol No. 1; as positive constitutional law currently stands, he is permanently and irreversibly deprived of the opportunity to stand for election to Parliament. This appears all the more severe since removal from office has the effect of barring the applicant not only from being a member of parliament but also from holding any other office for which it is necessary to take an oath in accordance with the Constitution ( see paragraph 34 above ). 104. Admittedly, the Government contended that in assessing proportionality in the present case, regard should be had to the evolution of the local political context in which the principle of disqualification from elected office was applied. The Court does not disagree. It takes note in this connection of the Government's argument that, in a recent democracy such as (according to the Government) Lithuania, it is not unreasonable that the State should consider it necessary to reinforce the scrutiny carried out by the electorate through strict legal principles, such as the one in issue here, namely permanent and irreversible disqualification from standing in parliamentary elections. Nevertheless, the decision to bar a senior official who has proved unfit for office from ever being a member of parliament in future is above all a matter for voters, who have the opportunity to choose at the polls whether to renew their trust in the person concerned. Indeed, this is apparent from the wording of Article 3 of Protocol No. 1, which refers to “ the free expression of the opinion of the people in the choice of the legislature”. Still, as the Government suggested, the particular responsibilities of the President of Lithuania should not be overlooked. An “ institution ” in himself and the “personification” of the State, the President carries the burden of being expected to set an example, and his place in the Lithuanian institutional system is far from merely symbolic. In particular, he enjoys significant prerogatives in the legislative process since he has the right to initiate legislation (Article 68 of the Constitution) and the possibility, when a law is submitted to him for signature and promulgation, of sending it back to the Seimas for reconsideration ( Article 71 of the Constitution ). In the Court's view, it is understandable that a State should consider a gross violation of the Constitution or a breach of the constitutional oath to be a particularly serious matter requiring firm action when committed by a person holding that office. 105. However, that is not sufficient to persuade the Court that the applicant's permanent and irreversible disqualification from standing for election as a result of a general provision constitutes a proportionate response to the requirements of preserving the democratic order. It reaffirms in this connection that the “free expression of the opinion of the people in the choice of the legislature” must be ensured in all cases. 106. The Court notes, firstly, that Lithuania's position in this area constitutes an exception in Europe. Indeed, in the majority of the Council of Europe's member States with a republican system where impeachment proceedings may be brought against the head of State, impeachment has no direct effects on the electoral rights of the person concerned. In the other States in this category, there is either no direct effect on the exercise of the right to stand in parliamentary elections, or the permissible restrictions require a specific judicial decision and are subject to a time-limit ( see paragraph 6 2 above ). 107. The Court further observes that the circumstances of the present case differ greatly from those of the Ždanoka case, to which the Government referred. The central issue in that case was a statutory provision barring persons who, like the applicant, had “actively participated after 13 January 1991 ” in the Communist Party of Latvia ( CPL ) from standing in parliamentary elections. The provision had been enacted by Parliament on account of the fact that, shortly after the Declaration of Independence of 4 May 1990, the party in question had been involved in organising and conducting attempted coups in January and August 1991 against the newly formed democratic regime. After observing in particular that, in the historical and political context in which the impugned measure had been taken, it had been reasonable for the legislature to presume that the leading figures of the CPL held an anti-democratic stance, the Court concluded that there had been no violation of Article 3 of Protocol No. 1. It held in particular that while such a measure could not be accepted in the context, for example, of a country with a long- established framework of democratic institutions, it might be considered acceptable in Latvia in view of the historical and political context which had led to its adoption, and given the threat to the new democratic order posed by the resurgence of ideas which, if allowed to gain ground, might appear capable of restoring a totalitarian regime ( see Ždanoka, cited above, § § 132-36; see also Ādamsons, cited above, § 113 ). However, besides the obvious contextual differences between that case and the present one, the Court, without wishing to underplay the seriousness of the applicant's alleged conduct in relation to his constitutional obligations, observes that the importance of his disqualification for the preservation of the democratic order in Lithuania is not comparable. 108. The Court also notes that, in finding no violation in the Ždanoka case, it attached considerable weight to the fact that, firstly, the Latvian parliament periodically reviewed the provision in issue and, secondly, the Constitutional Court had observed that a time-limit should be set on the restriction. It further concluded that the Latvian Parliament should keep the restriction under constant review, with a view to bringing it to an early end, and added that such a conclusion was all the more justified in view of the greater stability which Latvia now enjoyed, inter alia by reason of its full European integration, indicating that any failure by the Latvian legislature to take active steps to that end might result in a different finding by the Court ( see Ždanoka, loc.cit. ). 109. Thus, in assessing the proportionality of such a general measure restricting the exercise of the rights guaranteed by Article 3 of Protocol No. 1, decisive weight should be attached to the existence of a time-limit and the possibility of reviewing the measure in question. The need for such a possibility is, moreover, linked to the fact that, as the Government noted, the assessment of this issue must have regard to the historical and political context in the State concerned; since this context will undoubtedly evolve, not least in terms of the perceptions which voters may have of the circumstances that led to the introduction of such a general restriction, the initial justification for the restriction may subside with the passing of time. 110. In the present case, not only is the restriction in issue not subject to any time-limit, but the rule on which it is based is set in constitutional stone. The applicant's disqualification from standing from election accordingly carries a connotation of immutability that is hard to reconcile with Article 3 of Protocol No. 1. This is a further notable difference between the present case and the Ždanoka case cited above. 111. The Court observes, lastly, that although it is worded in general terms and is intended to apply in exactly the same manner to anyone whose situation corresponds to clearly defined criteria, the provision in question results from a rule-making process strongly influenced by the particular circumstances. In this connection it notes in particular that the second paragraph of Article 56 of the Constitution, which specifies the persons who cannot be elected as members of the Seimas, makes no reference to persons who have been removed from office following impeachment proceedings. When the Seimas decided to remove the applicant from office as President (on 6 April 2004), no legal provision stated that he was to be barred from standing for election as a result. Accordingly, when he informed the Central Electoral Committee of his intention to stand in the presidential election called for 13 June 2004 following his removal from office, the committee initially found (on 22 April 2004) that there was nothing to prevent him from doing so. The Seimas then introduced an amendment to the Presidential Elections Act to the effect that anyone who had been removed from office following impeachment proceedings could not be elected President until a period of five years had elapsed, as a result of which the committee ultimately refused to register the applicant as a candidate. Further to an action brought by members of the Seimas, the Constitutional Court held (on 25 May 2004) that such disqualification was compatible with the Constitution but that subjecting it to a time-limit was unconstitutional, adding that it applied to any office for which it was necessary to take an oath in accordance with the Constitution. The Seimas subsequently (on 15 July 2004) introduced an amendment to the Seimas Elections Act to the effect that anyone who had been removed from office following impeachment proceedings was ineligible to be a member of parliament. The striking rapidity of the legislative process reinforces the impression that it was at least triggered by the specific desire to bar the applicant from standing in the presidential election called as a result of his removal from office. That, admittedly, is not a decisive factor for the purposes of Article 3 of Protocol No. 1, which applies only to the election of the legislature. However, the Court considers that it constitutes an additional indication of the disproportionate nature of the restriction of the applicant's rights under that Article ( see, mutatis mutandis, Tănase, cited above, § 179). 112. Having regard to all the above factors, especially the permanent and irreversible nature of the applicant's disqualification from holding parliamentary office, the Court finds this restriction disproportionate and thus concludes that there has been a violation of Article 3 of Protocol No. 1. III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 3 OF PROTOCOL No. 1 113. The applicant complained that he had not had an effective remedy available in respect of the Constitutional Court's ruling of 25 May 2004. He relied on Article 13 of the Convention taken in conjunction with Article 3 of Protocol No. 1. 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.” 114. Having regard to its finding of a violation of Article 3 of Protocol No. 1, the Court considers that the applicant had an “arguable claim” calling in principle for the application of Article 13 of the Convention. However, it reiterates that the absence of remedies against decisions of a constitutional court will not normally raise an issue under this Article ( see for example, Wendenburg and Others v. Germany ( dec. ), no. 71630/01, ECHR 2003-II). It further observes that in the instant case the applicant's complaint concerns his inability to challenge the rule laid down by the Constitutional Court in its decision on an action for review of constitutionality, to the effect that a person removed from office as President for a gross violation of the Constitution or a breach of the constitutional oath is no longer entitled to hold office as a member of parliament, among other positions. However, Article 13 of the Convention, which 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, for example, James and Others v. the United Kingdom, 21 February 1986, § 85, Series A no. 98; Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 113, ECHR 2002-VI; Roche v. the United Kingdom [GC], no. 32555/96, § 137, ECHR 2005-X; and Tsonyo Tsonev v. Bulgaria, no. 33726/03, § 47, 1 October 2009 ), likewise cannot require the provision of a remedy allowing a constitutional precedent with statutory force to be challenged. In the present case the complaint raised by the applicant under Article 13 falls foul of this principle, seeing that his disqualification does not derive from an individual decision against him but from the application of the above-mentioned rule ( see, mutatis mutandis, Tsonyo Tsonev, cited above, § 48). 115. It follows that this part of the application is manifestly ill-founded and as such must be rejected as inadmissible pursuant to Article 35 §§ 3 (a) and 4 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 116. 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 117. The applicant sought 50 ,000 euros (EUR) in compensation for the non-pecuniary damage caused by the fact that he was deprived for life of the right to stand for election and by the extensive media coverage of the proceedings against him. In respect of pecuniary damage, he sought an amount corresponding to forty - seven months'salary as President, making a total of EUR 183, 912. 88. He submitted in that connection that his monthly salary had been EUR 3, 913. 04 and that he had been removed from office after thirteen months of the five-year term for which he had been elected. He also sought reimbursement of his “final pension”. He noted that under Lithuanian law, former presidents were entitled to a lifetime pension amounting to 50% of their salary; since the average life expectancy in Lithuania was seventy - seven years and he would have been fifty-three at the end of his term of office, he assessed the loss sustained on that account at EUR 586 ,956. 118. The Government contended that the claim for pecuniary damage was unfounded, unsubstantiated and excessive. They further argued that there was no causal link between the pecuniary damage referred to by the applicant and the alleged violation of Article 3 of Protocol No. 1 and that he had not substantiated his claims under that head either. 119. The Court would point out that its finding of a violation of Article 3 of Protocol No. 1 does not relate to the manner in which the impeachment proceedings against the applicant were conducted or to his removal from office as President, but solely to his permanent and irreversible disqualification from standing for election to Parliament. It thus concludes that there is no causal link between the alleged pecuniary damage and the violation of the Convention it has found and dismisses the applicant's claims under this head. In addition, while finding that the applicant is, on the other hand, entitled to claim that he has suffered non-pecuniary damage, it considers, having regard to the particular circumstances of the case, that such damage is sufficiently compensated by its finding of a violation of Article 3 of Protocol No. 1. That apart, the Court also reiterates that by virtue of Article 46 of the Convention, the Contracting Parties have undertaken to abide by the final judgments of the Court in any case to which they are parties. 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. This means, inter alia, that a judgment in which the Court finds a breach of the Convention or its Protocols imposes on the respondent State an obligation to determine, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be taken in its domestic legal order to put an end to the violation found by the Court and make all feasible reparation for its consequences, in such a way as to restore as far as possible the situation existing before the breach (see, for example, Assanidze v. Georgia [GC], no. 71503/01, § 198, ECHR 2004-II, and Verein gegen Tierfabriken Schweiz (VgT) v. Switzerland (no. 2) [GC], no. 32772/02, § 85, ECHR 200 9 ‑. . .). B. Costs and expenses 120. The applicant also sought reimbursement of the costs of his representation before the Seimas and the Constitutional Court (EUR 35,000) and before the Court (EUR 39,000), and of the expenses incurred by him and his lawyer in travelling to Strasbourg for the Grand Chamber hearing (estimated at EUR 2,500). 121. The Government argued that the applicant had not produced any evidence in support of those claims. They further contended that he had omitted to show that the (unreasonable) amount claimed for the costs incurred in the domestic proceedings had been necessary to prevent the alleged breach of Article 3 of Protocol No. 1. In addition, they argued that the claims relating to the proceedings before the Court were excessive. 122. The Court observes that the proceedings before the Constitutional Court and the Seimas were not intended to “prevent or redress” the violation of the Convention which it has found ( see, for example, Zimmermann and Steiner v. Switzerland, 13 July 1983, § 36, Series A no. 66; Lallement v. France, no. 46044/99, § 34, 11 April 2002; and Frérot v. France, no. 70204/01, § 77, 12 June 2007 ), since the violation results solely from the applicant's inability to stand for election to Parliament. The applicant is therefore not entitled to claim reimbursement of the costs and expenses relating to those proceedings. With regard to those incurred in the proceedings before the Court, including in connection with the hearing on 28 April 2010, the Court reiterates that an award can be made in respect of costs and expenses only in so far as they have been actually and necessarily incurred by the applicant and are reasonable as to quantum; furthermore, Rule 60 §§ 2 and 3 of the Rules of Court requires the applicant to submit itemised particulars of all claims, together with any relevant supporting documents, failing which the Court may reject the claims in whole or in part ( see, for example, Frérot, loc. cit. ). In the present case, seeing that the applicant did not produce any documents in support of his claims, the Court decides to dismiss them in their entirety. | The Court, pursuant to Article 35 (admissibility criteria) of the Convention, declared this part of the application inadmissible as being incompatible ratione materiae (in terms of subject matter) with the provisions of the Convention. The Court noted in particular that the first set of proceedings in the Constitutional Court had concerned the compliance with the Constitution and the law of a naturalisation decree issued by the applicant by virtue of his presidential powers, and the second set had sought to ascertain whether he had committed gross violations of the Constitution or breached his constitutional oath. In the Court’s view, the proceedings in question had not concerned the “determination of his civil rights and obligations” or of a “criminal charge” against him within the meaning of Article 6 § 1 (right to a fair trial) of the Convention; nor had he been “convicted” or “tried or punished ... in criminal proceedings” within the meaning of Article 4 § 1 of Protocol No. 7. |
612 | Doctors and health workers | II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE A. Relevant domestic law and practice 1. Dismissal of an employee for having lodged a criminal complaint against the employer 31. Apart from specific legislation with respect to civil servants exposing suspected cases of corruption, German law does not contain general provisions governing the disclosure of deficiencies in enterprises or institutions, such as illegal conduct on the part of the employer, by an employee (“whistle-blowing”) and discussions on related draft legislation have for the time being not produced any results. (a) The relevant provisions of the German Civil Code and the Unfair Dismissal Act 32. In the absence of such specific legislation, an extraordinary dismissal of an employee for having lodged a criminal complaint against his or her employer may be based on Article 626 § 1 of the Civil Code, which provides that an employment relationship may be terminated by either party to the contract without complying with a notice period for a “compelling reason” ( wichtiger Grund ). Facts must be present on the basis of which the party giving notice cannot reasonably be expected to continue the employment until the end of the notice period or to the agreed end of that relationship, taking all circumstances of the individual case into account and weighing up the interests of both parties to the contract. 33. Section 1(1) of the Unfair Dismissal Act provides that termination of an employment relationship by the employer is unlawful if it is socially unjustified. Under section 1(2) of the Act, termination is socially unjustified unless it is, inter alia, based on grounds relating to the employee himself or to his conduct or continuation of the employment relationship would conflict with compelling requirements for the operation of the enterprise. (b) Case-law of the Federal Constitutional Court and Federal Labour Court 34. In a decision of 2 July 2001 (file No. 1 BvR 2049/00) the Federal Constitutional Court ruled in a case where, at the request of the public prosecutor, an employee had given evidence and handed over documents in preliminary criminal investigations that had been instituted against his employer by the public prosecutor ex officio. The Federal Constitutional Court held that, in accordance with the rule of law, the discharge of a citizen’s duty to give evidence in criminal investigations could not in itself entail disadvantages under civil law. The Federal Constitutional Court further pointed out in an obiter dictum that even in the event that an employee reported the employer to the public prosecution authorities on his or her own initiative, the rule of law required that such exercise of a citizen’s right would, as a rule, not justify dismissal without notice, unless the employee had knowingly or frivolously reported incorrect information. 35. In the light of the Federal Constitutional Court’s case-law, the Federal Labour Court, in a judgment of 3 July 2003 (file No. 2 AZR 235/02), further elaborated on the relation between an employee’s duty of loyalty towards the employer and the exercise of his or her constitutionally guaranteed rights. It reiterated that in reporting a criminal offence an employee had recourse to a means of implementing the law that was not only sanctioned by the legal order but also called for under the Constitution. An employee who exercised that right in good faith could not therefore incur a disadvantage in the event that the underlying allegations proved wrong or could not be clarified in the course of the ensuing proceedings. It held, however, that, taking into consideration the employee’s duty of loyalty, a [criminal] complaint lodged by an employee must not constitute a disproportionate reaction in response to the employer’s conduct. Indications of a disproportionate reaction by the complainant employee could be the justification of the complaint, the motivation of the person lodging the complaint or the failure to have previously drawn attention to the impugned deficiencies internally within the enterprise. In this context the employee’s motives for lodging the complaint were of particular significance. A complaint that was lodged solely to cause damage to the employer or to “wear him or her down” could constitute a disproportionate reaction depending on the charges underlying the complaint. As regards the possibility of previous internal clarification of the allegations, the court stated that it had to be determined in each individual case whether such an approach could reasonably have been expected of the employee. It would not be expected if the latter had obtained knowledge of an offence which, if he or she failed to report it, would render him or her liable to criminal prosecution or in the event of a serious criminal offence or an offence committed by the employer himself. In addition, previous internal clarification of the matter was not required if redress could not legitimately be expected. If the employer failed to remedy an unlawful practice even though the employee had previously drawn his attention to that practice, the latter was no longer bound by a duty of loyalty towards his employer. 2. The Code of Criminal Procedure 36. Article 170 of the Code of Criminal Procedure provides for the following outcomes of investigation proceedings: “(1) If the investigations offer sufficient reason for bringing public charges, the public prosecution office shall submit a bill of indictment to the competent court. (2) In all other cases the public prosecution office shall terminate the proceedings. The public prosecutor shall notify the accused accordingly if he was examined as such or a warrant of arrest was issued against him; the same shall apply if he has requested such notice or if there is a particular interest in notifying him.” B. Relevant international law and practice 37. In its Resolution 1729 (2010) on the protection of “whistle-blowers” the Parliamentary Assembly of the Council of Europe stressed the importance of “whistle-blowing” – concerned individuals sounding the alarm in order to stop wrongdoings that place fellow human beings at risk – as an opportunity to strengthen accountability, and bolster the fight against corruption and mismanagement, both in the public and private sectors. It invited all member States to review their legislation concerning the protection of “whistle-blowers”, keeping in mind the following guiding principles: 6.1.1. the definition of protected disclosures shall include all bona fide warnings against various types of unlawful acts, including all serious human rights violations which affect or threaten the life, health, liberty and any other legitimate interests of individuals as subjects of public administration or taxpayers, or as shareholders, employees or customers of private companies; 6.1.2. the legislation should therefore cover both public and private sector whistle-blowers ..., and 6.1.3. it should codify relevant issues in the following areas of law: 6.1.3.1. employment law – in particular protection against unfair dismissals and other forms of employment-related retaliation; ... 6.2.2. This legislation should protect anyone who, in good faith, makes use of existing internal whistle-blowing channels from any form of retaliation (unfair dismissal, harassment or any other punitive or discriminatory treatment). 6.2.3. Where internal channels either do not exist, have not functioned properly or could reasonably be expected not to function properly given the nature of the problem raised by the whistle-blower, external whistle-blowing, including through the media, should likewise be protected. 6.2.4. Any whistle-blower shall be considered as having acted in good faith provided he or she had reasonable grounds to believe that the information disclosed was true, even if it later turns out that this was not the case, and provided he or she did not pursue any unlawful or unethical objectives.” The above guidelines were also referred to in the Parliamentary Assembly’s related Recommendation 1916 (2010). 38. Article 24 of the Revised European Social Charter reads as follows: “With a view to ensuring the effective exercise of the right of workers to protection in cases of termination of employment, the Parties undertake to recognise: ... a) the right of all workers not to have their employment terminated without valid reasons for such termination connected with their capacity or conduct or based on the operational requirements of the undertaking, establishment or service; ... The Appendix to Article 24 specifies : “3. For the purpose of this article the following, in particular, shall not constitute valid reasons for termination of employment: ... c the filing of a complaint or the participation in proceedings against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities; ...” Article 24 of the Revised European Social Charter has been ratified by twenty-four of the Council of Europe’s member States. Germany has signed but not yet ratified the Revised European Social Charter. 39. Article 5 of the Termination of Employment Convention of the International Labour Organisation (ILO Convention No. 158 of 22 June 1982) stipulates: “The following, inter alia, shall not constitute valid reasons for termination: ... (c) the filing of a complaint or the participation in proceedings against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities; ...”. Germany has not ratified ILO Convention No. 158. 40. A number of other international instruments address the protection of whistle-blowers in specific contexts, in particular the fight against corruption, such as the Council of Europe’s Criminal Law Convention on Corruption and Civil Law Convention on Corruption or the United Nations Convention against Corruption. THE LAW I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 41. The applicant complained that her dismissal without notice on the ground that she had lodged a criminal complaint against her employer and the refusal of the domestic courts in the ensuing proceedings to order her reinstatement infringed her right to freedom of expression as provided in Article 10 of the Convention, which reads as follows: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” A. Admissibility 42. 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 43. The Court observes at the outset that it was not disputed between the parties that the criminal complaint lodged by the applicant had to be regarded as whistle-blowing on the alleged unlawful conduct of the employer, which fell within the ambit of Article 10 of the Convention. It was also common ground between the parties that the resulting dismissal of the applicant and the related decisions of the domestic courts amounted to an interference with the applicant’s right to freedom of expression. 44. The Court refers in this context to a number of cases involving freedom of expression of civil or public servants in which it has held that Article 10 applied to the workplace in general (see, for example, Kudeshkina v. Russia, no. 29492/05, § 85, 26 February 2009, and Vogt v. Germany, 26 September 1995, § 53, Series A no. 323). It has further found that Article 10 of the Convention also applies when the relations between employer and employee are governed, as in the case at hand, by private law and that the State has a positive obligation to protect the right to freedom of expression even in the sphere of relations between individuals (see Fuentes Bobo v. Spain, no. 39293/98, § 38, 29 February 2000). 45. The Court therefore considers that the applicant’s dismissal, as upheld by the German courts, on account of her criminal complaint against her employer constituted an interference with her right to freedom of expression, as guaranteed by Article 10 § 1 of the Convention. 46. Such interference will constitute a breach of Article 10 unless it is “prescribed by law”, pursues a legitimate aim under its paragraph 2 and is “necessary in a democratic society” for the achievement of such aim. 2. Whether the interference was “prescribed by law” and pursued a legitimate aim 47. The applicant, while conceding that termination of an employment relationship without notice under Article 626 § 1 of the Civil Code could pursue the legitimate aim of protecting the reputation or rights of others, namely, the business reputation and interests of Vivantes, argued that the said provision did not contain any criteria for a lawful dismissal in the event of whistle-blowing on the part of an employee. The related decisions of the Federal Constitutional Court of 2 July 2001 and the Federal Labour Court of 3 July 2003 (see “Relevant domestic law and practice” above) did not amount to comprehensive and established case-law in this regard. The conditions for dismissal without notice on the ground that an employee has filed a criminal complaint against his or her employer were not sufficiently foreseeable and the resulting interference with the applicant’s right to freedom of expression had thus not been “prescribed by law” within the meaning of Article 10 § 2. 48. The Court notes in this connection that Article 626 § 1 of the Civil Code allows the termination of an employment contract with immediate effect by either party if a “compelling reason” renders the continuation of the employment relationship unacceptable to the party giving notice. It further observes that, according to the decision of the domestic courts in the present case as well as the aforementioned leading decisions of the Federal Constitutional Court and the Federal Labour Code referred to by the parties, a criminal complaint against an employer may justify a dismissal under the said provision where it amounts to a “significant breach” of the employee’s duty of loyalty. While the domestic courts have to assess whether such a significant breach of an employee’s duty has occurred in the light of the circumstances of each particular case, the Court considers that it is nevertheless foreseeable for an employee that a criminal complaint against his or her employer may in principle constitute a compelling ground for dismissal without notice under the said provision. The Court reiterates in this context that domestic legislation cannot be expected in any case to provide for every eventuality and the mere fact that a legal provision is capable of more than one construction does not mean that it does not meet the requirement implied in the notion “prescribed by law” (see Vogt v. Germany, 26 September 1995, § 48, Series A no. 323). 49. The Court therefore shares the Government’s view that the interference with the applicant’s right to freedom of expression was “prescribed by law”. It further notes that there was no dispute between the parties that the interference pursued the legitimate aim of protecting the reputation and rights of others, namely, the business reputation and interests of Vivantes (see Steel and Morris v. the United Kingdom, no. 68416/01, § 94, ECHR 2005 ‑ II). 50. The Court must therefore examine whether the interference was “necessary in a democratic society”, in particular, whether there was a proportionate relationship between the interference and the aim pursued. 3. Whether the interference was necessary in a democratic society (a) The parties’ submissions (i) The Government 51. The Government argued that the interference with the applicant’s right to freedom of expression in the case at hand had been justified under paragraph 2 of Article 10 since her dismissal without notice had been a necessary and proportionate means to protect the reputation and rights of her employer. 52. In their assessment of the situation the domestic courts had, inter alia, taken into consideration that the applicant had not previously raised internally with her employer her allegation that the documentation in connection with the care provided had been falsified. Neither had she mentioned such a practice nor accused her employer of fraud either in her repeated notifications to the latter pointing out the shortcomings in the services rendered or in the letter sent by her counsel to the Vivantes management on 9 November 2004. The allegations of fraud had been made for the first time in her criminal complaint of 7 December 2004. 53. The domestic courts had further considered that the applicant had frivolously based her criminal complaint on facts that could not be demonstrated in the ensuing proceedings. Her complaint had lacked sufficiently concrete information to enable her allegations to be verified and the competent public prosecution authorities had therefore discontinued the preliminary investigations for lack of an initial suspicion ( Anfangsverdacht ). When the public prosecution authorities, following resumption of the preliminary proceedings at the applicant’s request, had questioned the latter as a witness, she had refused to further specify her allegations or to name additional witnesses. The preliminary investigations had thus been discontinued again. In the proceedings before the labour courts relating to her dismissal, the applicant had also failed to substantiate her allegations that staff had been asked to document services that had not actually been rendered. Owing to the blanket nature of the applicant’s allegations and her refusal to further substantiate her accusations, it had been impossible to assess their veracity and the domestic courts had thus not abused their power of discretion when calling into question the authenticity of the applicant’s allegations. 54. The Government argued, lastly, that when lodging the criminal complaint against her employer the applicant had not acted in good faith and in the public interest with a view to disclosing a criminal offence. Her motive for lodging the criminal complaint had rather been to denounce the alleged shortage of staff and put additional pressure on her employer by involving the public. The applicant had been aware that Vivantes was subject to inspections by the Berlin Inspectorate for Residential Homes as well as to checks by an independent supervisory body, the MDK, and that in view of those checks a criminal complaint about an alleged staff shortage and resulting deficiencies in care was unnecessary. In particular, she could have waited for the MDK to issue a report following its visit carried out on 18 November 2004 before lodging her criminal complaint. The motives behind her actions were also illustrated by the polemical way in which her criminal complaint had been phrased and the fact that following her dismissal she had disseminated flyers in which she complained of the alleged avarice of her employer. Furthermore, her lawyer’s letter of 9 November 2004 announcing to the Vivantes management that a criminal complaint and a “certainly unpleasant public discussion” could be avoided only if the employer took steps to remedy the staff shortages also showed that she intended to put pressure on her employer. 55. The Government concluded that the domestic courts had examined the circumstances of the instant case and, relying on the aforementioned arguments, had struck a fair balance between the public interest in being informed about shortcomings in the sensitive area of care for the elderly on the one hand, and the protection of the public’s trust in the provision of services in this area as well as the protection of the commercial interests and success of the operating service companies on the other, and had come to the conclusion that the latter prevailed in the present case. They further pointed out that the domestic courts had weighed the applicant’s right to freedom of expression against her duty of loyalty towards her employer, applying criteria that coincided with those established by the Court in the case of Guja ( Guja v. Moldova [GC], no. 14277/04, §§ 69-78, ECHR 2008 ‑ ...). The result of their assessment had thus fallen within the margin of appreciation enjoyed by the States in interfering with the right to freedom of expression. (ii) The applicant 56. The applicant contested the Government’s argument that her criminal complaint had been premature. She maintained that prior to lodging the criminal complaint against Vivantes she had made continuous efforts over a period of over two years to inform the relevant departments within the enterprise of the existing deficiencies. Since all her attempts to draw the management’s attention to the situation had been to no avail, she had been led to assume that further internal complaints would not constitute an effective means of obtaining an investigation of and remedy for the shortcomings in the care provided. For that reason she had considered the criminal complaint as a last resort, also with a view to avoiding potential criminal liability herself. This had also been the reason her counsel had written to the Vivantes management on 9 November 2004 informing them of her intention to lodge a criminal complaint. 57. The applicant further contended that her criminal complaint had not been frivolous or unfounded. In her repeated pleas to Vivantes she had disclosed all the circumstances of the case that had been the foundation of her subsequent criminal complaint, including the fact that staff had been asked to record services which had not actually been rendered in the manner documented. The deficiencies disclosed by her had also been the subject of criticism by the MDK, following its inspections in 2002 and 2003, when it had pointed out that staff shortages were at the origin of the inadequate care. It had been her lawyer who had assessed the facts from a legal point of view when formulating the criminal complaint and qualifying them as constituting the criminal offence of fraud – an assessment that she was not competent to call into question. She had further substantiated her complaint to the extent possible in the subsequent proceedings while being mindful of the risk of incriminating herself and of incurring retaliatory measures by Vivantes in the event that she disclosed further internal information about the enterprise. 58. The applicant submitted that her motive for filing the complaint had been the potential threat to the health of the particularly vulnerable patients as a result of the unsatisfactory working conditions in the nursing home; the question whether the accompanying documentation had been accurate had been of only secondary significance to her. In her opinion the criminal complaint had not been unnecessary in view of the supervision carried out by the MDK, as pointed out by the Government, and she contested the argument that the true purpose of her complaint had been to put undue pressure on her employer. She argued in this connection that previous complaints by the MDK about the conditions in the nursing home had not brought about any change in working conditions there and therefore, in her opinion, a subsequent visit by the MDK could not have been considered as an effective alternative to remedy the shortcomings. In any event she would neither have had a right to be involved in such an inspection nor to be informed about its outcome. 59. The applicant further pointed out that her dismissal without notice had been the severest sanction possible and could only be justified in the absence of less severe penalties. With regard to Vivantes, on the other hand, no concrete damage as a consequence of her criminal complaint had been established. 60. The applicant concluded that her dismissal without notice had not been necessary for the protection of the reputation or rights of Vivantes and had thus been disproportionate. The domestic courts had not struck a fair balance between the considerable public interest in being informed about shortcomings in the care for the elderly provided by a State-owned company on the one hand and the rights of the service provider on the other. (iii) The third party 61. The trade union ver.di provided information on the organisation of institutional care for the elderly in Germany as well as the working conditions of employees in this sector, which were frequently characterised by staff shortages resulting in a heavy workload and overtime for employees. In many nursing homes too many patients were assigned to individual members of staff, who were therefore in a position to provide only basic care. Supervision of nursing homes was mainly carried out by the Medical Review Board of the health insurance fund on the basis of annual inspections. The latter was under no obligation to consult the staff employed in the nursing homes on the occasion of such visits. However, it was the employees who were the first to become aware of unsatisfactory conditions in the care provided. For this reason staff should be provided with effective means to draw attention to shortcomings in the provision of care and should be able to report breaches of the rights of patients without having to fear retaliatory measures by their employer. (b) The Court’s assessment (i) The general principles applicable in this case 62. The fundamental principles underlying the assessment of whether an interference with the right to freedom of expression was proportionate are well established in the Court’s case-law and have been summed up as follows (see, among other authorities, Steel and Morris v. the United Kingdom, no. 68416/01, § 87, ECHR 2005 ‑ II) : “... (ii) The adjective ‘necessary’, within the meaning of Article 10 § 2, implies the existence of a ‘pressing social need’. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a ‘restriction’ is reconcilable with freedom of expression as protected by Article 10. (iii) The Court’s task, in exercising its supervisory jurisdiction, is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation. This does not mean that the supervision is limited to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether it was ‘proportionate to the legitimate aim pursued’ and whether the reasons adduced by the national authorities to justify it are ‘relevant and sufficient’ ... In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they relied on an acceptable assessment of the relevant facts ...” 63. As regards the application of Article 10 of the Convention to the workplace, the Court has held that the signalling by an employee in the public sector of illegal conduct or wrongdoing in the workplace should, in certain circumstances, enjoy protection. This may be called for in particular where the employee or civil servant concerned is the only person, or part of a small category of persons, aware of what is happening at work and is thus best placed to act in the public interest by alerting the employer or the public at large (see Guja v. Moldova [GC], no. 14277/04, § 72, ECHR 2008 ‑ ...., and Marchenko v. Ukraine, no. 4063/04, § 46, 19 February 2009). 64. The Court is at the same time mindful that employees owe to their employer a duty of loyalty, reserve and discretion (see, for example, Marchenko, cited above, § 45). While such duty of loyalty may be more pronounced in the event of civil servants and employees in the public sector as compared to employees in private-law employment relationships, the Court finds that it doubtlessly also constitutes a feature of the latter category of employment. It therefore shares the Government’s view that the principles and criteria established in the Court’s case-law with a view to weighing an employee’s right to freedom of expression by signalling illegal conduct or wrongdoing on the part of his or her employer against the latter’s right to protection of its reputation and commercial interests also apply in the case at hand. The nature and extent of loyalty owed by an employee in a particular case has an impact on the weighing of the employee’s rights and the conflicting interests of the employer. 65. Consequently, in the light of this duty of loyalty and discretion, disclosure should be made in the first place to the person’s superior or other competent authority or body. It is only where this is clearly impracticable that the information can, as a last resort, be disclosed to the public. In assessing whether the restriction on freedom of expression was proportionate, the Court must therefore take into account whether the applicant had any other effective means of remedying the wrongdoing which he or she intended to uncover (see Guja, cited above, § 73). 66. The Court must also have regard to a number of other factors when assessing the proportionality of the interference in relation to the legitimate aim pursued. In the first place, particular attention shall be paid to the public interest involved in the disclosed information. The Court reiterates in this regard that there is little scope under Article 10 § 2 of the Convention for restrictions on debate on questions of public interest (see, among other authorities, Stoll v. Switzerland [GC], no. 69698/01, § 106, ECHR 2007 ‑ XIV). 67. The second factor relevant to this balancing exercise is the authenticity of the information disclosed. It is open to the competent State authorities to adopt measures intended to respond appropriately and without excess to defamatory accusations devoid of foundation or formulated in bad faith (see Castells v. Spain, 23 April 1992, § 46, Series A no. 236). Moreover, freedom of expression carries with it duties and responsibilities and any person who chooses to disclose information must carefully verify, to the extent permitted by the circumstances, that it is accurate and reliable (see Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 65, ECHR 1999 ‑ III). 68. On the other hand, the Court must weigh the damage, if any, suffered by the employer as a result of the disclosure in question and assess whether such damage outweighed the interest of the public in having the information revealed (see Guja, cited above, § 76). 69. The motive behind the actions of the reporting employee is another determinant factor in deciding whether a particular disclosure should be protected or not. For instance, an act motivated by a personal grievance or personal antagonism or the expectation of personal advantage, including pecuniary gain, would not justify a particularly strong level of protection. It is important to establish that, in making the disclosure, the individual acted in good faith and in the belief that the information was true, that it was in the public interest to disclose it and that no other, more discreet means of remedying the wrongdoing was available to him or her (see Guja, cited above, § 77). 70. Lastly, in connection with the review of the proportionality of the interference in relation to the legitimate aim pursued, a careful analysis of the penalty imposed on the applicant and its consequences is required (see Fuentes Bobo, cited above, § 49). (ii) Application of the above principles in the present case (α) The public interest in the disclosed information 71. Turning to the circumstances of the present case, the Court notes that the information disclosed by the applicant was undeniably of public interest. In societies with an ever growing part of their elderly population being subject to institutional care, and taking into account the particular vulnerability of the patients concerned, who often may not be in a position to draw attention to shortcomings in the provision of care on their own initiative, the dissemination of information about the quality or deficiencies of such care is of vital importance with a view to preventing abuse. This is even more evident when institutional care is provided by a State-owned company, where the confidence of the public in an adequate provision of vital care services by the State is at stake. (β) Whether the applicant had alternative channels for making the disclosure 72. As regards the availability of alternative channels for making the disclosure and obtaining an internal clarification of the allegations, the Court notes that the applicant not only indicated, on numerous occasions between January 2003 and October 2004, to her superiors that she was overburdened, but also alerted the management to a possible criminal complaint through her counsel by letter of 9 November 2004. While it is true that the legal qualification of the employer’s conduct as aggravated fraud was mentioned for the first time in the criminal complaint of 7 December 2004 drafted by the applicant’s lawyer, the Court observes that the applicant had nevertheless disclosed the factual circumstances on which her subsequent criminal complaint was based – including the fact that services had not been properly documented – in her previous notifications to her employer. It further notes that the criminal complaint requested the public prosecution authorities to examine the circumstances of the case as described in the criminal complaint under all relevant legal aspects and that the latter was thus not necessarily limited to fraud. 73. The Court refers in this context to the aforementioned decision of the Federal Labour Court of 3 July 2003 (see “Relevant domestic law and practice” above) stating that seeking previous internal clarification of the allegations could not reasonably be expected of an employee if the latter had obtained knowledge of an offence which, if he or she failed to report it, would render him or her liable to criminal prosecution. In addition, previous internal clarification of the matter was not required if redress could not legitimately be expected. If the employer failed to remedy an unlawful practice even though the employee had previously drawn his attention to that practice, the latter was no longer bound by a duty of loyalty towards his employer. The Court further notes that similar reasoning is reflected in the Parliamentary Assembly’s guiding principles on the protection of whistle ‑ blowers (see “Relevant international law and practice” above) stipulating that where internal channels could not reasonably be expected to function properly, external whistle-blowing should be protected. 74. The Court finds that these considerations also apply in the case at hand. The applicant was of the opinion that none of her previous complaints to her employer had contributed to an amelioration of the employment and care situation in the nursing home. She also indicated to her employer that one of her concerns was that failure to report the deficiencies in the care provided would render her liable to criminal prosecution. The Court therefore considers that it has not been presented with sufficient evidence to counter the applicant’s submission that any further internal complaints would not have constituted an effective means of obtaining an investigation of and remedy for the shortcomings in the care provided. 75. The Court also notes that German law does not provide for a particular enforcement mechanism for investigating a whistle-blower’s complaint and seeking corrective action from the employer. 76. In the light of the foregoing, the Court considers that in circumstances such as those in the present case external reporting by means of a criminal complaint was justifiable. (γ) The authenticity of the disclosed information 77. Another factor relevant to the balancing exercise is the authenticity of the information disclosed. The Court reiterates in this context that freedom of expression carries with it duties and responsibilities and any person who chooses to disclose information must carefully verify, to the extent permitted by the circumstances, that it is accurate and reliable – in particular if, as in the present case, the person owes a duty of discretion and loyalty to her employer (see Handyside v. the United Kingdom, 7 December 1976, § 49, Series A no. 24, and Haseldine v. the United Kingdom, no. 18957/91, Commission decision of 13 May 1992, Decisions and Reports (DR) 73, pp. 225 and 231 ). 78. The Court notes in this context that the Federal Constitutional Court had pointed out in its decision of 1 July 2001 that even in the event that an employee reported the employer to the public prosecution authorities on his or her own initiative, the rule of law required that such exercise of a citizen’s right could not, as a rule, justify dismissal without notice unless the employee had knowingly or frivolously reported incorrect information (file No. 1 BvR 2049/00). Indeed the Berlin Labour Court of Appeal found in the case at hand that the applicant had frivolously based her criminal complaint on facts that could not be demonstrated in the resulting preliminary criminal and labour court proceedings. 79. However, the Court notes that the deficiencies disclosed by the applicant in her criminal complaint had not only been raised in her previous notifications to her employer but had also been the subject of criticism by the MDK following its inspections in 2002 and 2003 which had led it to point out that staff shortages were at the origin of the inadequate care. The allegations made by the applicant were therefore not devoid of factual background and there is nothing to establish that she had knowingly or frivolously reported incorrect information. The factual information about the deficiencies in care was further supplemented by the applicant in written submissions to the labour courts in the proceedings regarding her dismissal. Furthermore, the Court notes in this connection that, according to the statement of facts in the Labour Court of Appeal’s judgment of 28 March 2006, the applicant had, inter alia, alleged at the court hearing on the same date that she and other staff members had been requested to supplement documentation on care provided even though the documented services had not actually been rendered. She had referred to the testimony of three of her colleagues in that connection. 80. As far as the ensuing preliminary criminal proceedings are concerned, the Court notes that it is primarily the task of the law-enforcement authorities to investigate the veracity of allegations made in the context of a criminal complaint and that it cannot reasonably be expected from a person having lodged such a complaint in good faith to anticipate whether the investigations will lead to an indictment or will be terminated. The Court refers in this context to the aforementioned decision of the Federal Labour Court of 3 July 2003 in which the latter held that an employee who exercised his or her constitutionally guaranteed right to lodge a criminal complaint in good faith could not sustain a disadvantage in the event that the underlying allegations proved wrong or could not be clarified in the course of the ensuing proceedings. It further observes that the Parliamentary Assembly’s guiding principles are based on similar considerations, stating that a whistle-blower should be considered as having acted in good faith provided he or she had reasonable grounds to believe that the information disclosed was true, even if it later turned out that this was not the case, and provided he or she did not pursue any unlawful or unethical objectives. 81. The Court is not convinced by the Government’s argument that the applicant’s failure to further specify her allegations and to name additional witnesses in the course of the criminal investigations against Vivantes called into question the authenticity of her allegations made in the criminal complaint. The Court notes, as has been submitted by the applicant, that such conduct on her part may be explained by a fear of incriminating herself as well as the risk of being subject to retaliatory measures on the part of Vivantes in the event that she disclosed further internal information. In any event, the Court considers that although a lack of evidence may result in the preliminary investigations being discontinued, this does not necessarily mean that the allegations underlying the criminal complaint were without factual basis or frivolous at the outset. (δ) Whether the applicant acted in good faith 82. The Court further notes that the applicant argued that her main motive for lodging the criminal complaint had been the potential threat to the health of the particularly vulnerable patients resulting from the unsatisfactory working conditions in the nursing home, whereas the Government maintained that she had aimed to denounce the alleged staffing shortage and put additional pressure on her employer by involving the public. 83. On the basis of the materials before it and even assuming that the amelioration of her own working conditions might have been an additional motive for her actions, the Court does not have reason to doubt that the applicant acted in good faith and in the belief that it was in the public interest to disclose the alleged wrongdoing on the part of her employer to the prosecution authorities and that no other, more discreet means of remedying the situation was available to her. 84. The Court is not persuaded by the Government’s argument that in view of the regular inspections by the Berlin Inspectorate for Residential Homes as well as those carried out by the MDK, the applicant should have been aware that a criminal complaint was unnecessary and that she could have waited for the MDK to issue its report on its inspection of 18 November 2004 before submitting her criminal complaint. The Court notes in this respect that in the applicant’s experience previous complaints by the MDK about the conditions in the nursing home had not brought about any change and she was therefore of the opinion that a further visit by the MDK could not be considered as an effective alternative by which to remedy the shortcomings and avoid her own criminal liability. Following her numerous previous internal complaints with Vivantes, which had been to no avail, she apparently considered the criminal complaint to be a last resort by which to remedy the deficiencies in the care provided. The Court notes in this context that a report of a subsequent check carried out by the MDK in 2006 points out that deficiencies in care that had already been the subject of its reports in 2002, 2003 and 2004 persisted and required urgent action. 85. As regards the Government’s submissions that the polemicalformulation of the criminal complaint was evidence that the applicant’s true motive was to denounce and put pressure on her employer, the Court considers that even if the applicant allowed herself a certain degree of exaggeration and generalisation, her allegations were not entirely devoid of factual grounds (see paragraph 79 above) and did not amount to a gratuitous personal attack on her employer but rather constituted a description of the serious shortcomings in the functioning of the nursing home. 86. This finding is further corroborated by the fact that the applicant – once she had concluded that external reporting was necessary – did not have immediate recourse to the media or the dissemination of flyers in order to attain maximum public attention but chose to first have recourse to the public prosecution authorities with a view to initiating investigations (see, by contrast, Balenovic v. Croatia, (dec.), no. 28369/07, 30 September 2010). She sought the assistance and advice of a lawyer who made a legal assessment of the facts as submitted by the applicant and formulated the criminal complaint accordingly. It was only following her ordinary dismissal on 19 January 2005 that she disseminated flyers in which she complained of the alleged avarice of her employer and made reference to her criminal complaint. 87. The foregoing considerations are sufficient to enable the Court to conclude that the applicant acted in good faith when submitting her criminal complaint against her employer. (ε) The detriment to the employer 88. On the other hand, the Court also considers that the allegations underlying the applicant’s criminal complaints, in particular those containing allegations of fraud, were certainly prejudicial to Vivante’s business reputation and commercial interests. 89. It reiterates in this context that there is an interest in protecting the commercial success and viability of companies for the benefit of shareholders and employees, but also for the wider economic good (see Steel and Morris v. the United Kingdom, no. 68416/01, § 94, ECHR 2005 ‑ II). The Court finds it relevant to note in this context that in the case at hand the employer is a State-owned company providing, inter alia, services in the sector of institutional care for the elderly. While the Court accepts that State-owned companies also have an interest in commercial viability, it nevertheless points out that the protection of public confidence in the quality of the provision of vital public service by State-owned or administered companies is decisive for the functioning and economic good of the entire sector. For this reason the public shareholder itself has an interest in investigating and clarifying alleged deficiencies in this respect within the scope of an open public debate. 90. In the light of these considerations, the Court finds that the public interest in receiving information about shortcomings in the provision of institutional care for the elderly by a State-owned company is so important in a democratic society that it outweighs the interest in protecting the latter’s business reputation and interests. (ζ) The severity of the sanction 91. Lastly, the Court notes that the heaviest sanction possible under labour law was imposed on the applicant. This sanction not only had negative repercussions on the applicant’s career but it could also have a serious chilling effect on other employees of Vivantes and discourage them from reporting any shortcomings in institutional care. Moreover, in view of the media coverage of the applicant’s case, the sanction could have a chilling effect not only on employees of Vivantes but also on other employees in the nursing service sector. This chilling effect works to the detriment of society as a whole and also has to be taken into consideration when assessing the proportionality of, and thus the justification for, the sanctions imposed on the applicant, who, as the Court has held above, was entitled to bring the matter at issue to the public’s attention (see Kudeshkina v. Russia, no. 29492/05, § 99, 26 February 2009). This is particularly true in the area of care for the elderly, where the patients are frequently not capable of defending their own rights and where members of the nursing staff will be the first to become aware of unsatisfactory conditions in the care provided and are thus best placed to act in the public interest by alerting the employer or the public at large. 92. Accordingly, the Court considers that the applicant’s dismissal without notice in the case at hand was disproportionately severe. (iii) Conclusion 93. Being mindful of the importance of the right to freedom of expression on matters of general interest, of the right of employees to report illegal conduct and wrongdoing at their place of work, the duties and responsibilities of employees towards their employers and the right of employers to manage their staff, and having weighed up the other various interests involved in the present case, the Court comes to the conclusion that the interference with the applicant’s right to freedom of expression, in particular her right to impart information, was not “necessary in a democratic society”. 94. The Court therefore considers that in the present case the domestic courts failed to strike a fair balance between the need to protect the employer’s reputation and rights on the one hand and the need to protect the applicant’s right to freedom of expression on the other. 95. There has accordingly been a violation of Article 10 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 96. The applicant further complained that the proceedings before the labour courts regarding her dismissal were unfair. In her opinion, the employer should have been obliged to prove that her criminal complaint had been frivolously based on untruthful allegations and thus constituted a reason for dismissal without notice under Article 626 § 1 of the German Civil Code. The Court of Appeal had, however, shifted the burden of proof in this respect onto the applicant. She relied on 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 ...” 97. The Court has repeatedly held that Article 6 does not lay down any rules on the admissibility of evidence or the way it should be assessed. These are therefore primarily matters for regulation by national law and the national courts, which enjoy a wide margin of appreciation (see Klasen v. Germany, no. 75204/01, § 43, 5 October 2006). It notes that in the present case, the applicant, who was represented by counsel throughout the proceedings, had the benefit of adversarial proceedings and was at all stages able to submit, and indeed submitted, the arguments she considered relevant to the case. There is nothing to establish that the evaluation of the case by the domestic courts was arbitrary. 98. 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. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 99. 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 100. The applicant claimed 38,498.56 euros (EUR) in respect of pecuniary damage and the additional amount of EUR 112,135.19 for future pecuniary damage. As regards pecuniary damage already incurred, the amount of EUR 33,730.12 represented the loss of salary following her dismissal without notice on 9 February 2005. Furthermore, since contributions to the supplementary company pension scheme for incapacity to work ( Betriebsrente für eine volle Erwerbsminderung ) had been discontinued following her dismissal in February 2005, the applicant argued that she had lost a monthly supplementary company pension in the amount of EUR 194.63 to which she would have been entitled as of 1 June 2008. Consequently, at the time of submission of her just satisfaction claims in mid-June 2010, the accrued damage resulting from the loss of such monthly benefits since 1 June 2008 amounted to EUR 4,768.44. She further claimed that she would have been entitled to such monthly benefits until payment of her regular old-age pension as of 30 September 2028, resulting in future pecuniary damage in the amount of EUR 47,861.27 until that date. She argued, lastly, that her monthly old-age pension entitlement as of July 2028 would have amounted to EUR 334,76. Assuming an average life expectancy of 83 years, the loss of her pension entitlement for a period of 16 years (2028 until 2044) thus represented future pecuniary damage in the amount of EUR 64,273.92. The applicant further claimed EUR 10,000 in respect of non-pecuniary damage, claiming that the lengthy proceedings before the domestic courts had caused her psychological stress and impaired her health. 101. The Government contested these claims. As regards the applicant’s claims in respect of pecuniary damage, the Government argued that there was nothing to establish that this damage had been caused by the alleged breach of the Convention which originated in the applicant’s dismissal without notice of 9 February 2005. The Government pointed out that by a letter dated 19 January 2005, that is, prior to the applicant’s dismissal without notice on 9 February 2005, she had already been given notice on account of her repeated illness, with effect from 31 March 2005. For this reason, a loss of income resulting from the dismissal without notice could only be claimed for the period from 9 February until 31 March 2005, the date on which her ordinary dismissal had become effective. However, during that period the applicant had received sickness benefits ( Krankengeld ) followed by a transitional allowance ( Übergangsgeld ) and had not actually suffered any pecuniary damage. The Government further submitted that the applicant’s calculation with respect to her claim for loss of company pension benefits did not demonstrate how that claim could have its origin in an event which post-dated the termination of her employment relationship by ordinary dismissal with effect from 31 March 2005. 102. As regards non-pecuniary damage, the Government, while leaving the matter to the Court’s discretion, considered the amount claimed by the applicant to be excessive. 103. The Court notes that it is not disputed between the parties that the applicant’s employment relationship ended as a consequence of her ordinary dismissal with effect from 31 March 2005. It further observes that the applicant herself had submitted that she received sickness benefits or a transitional allowance for the period between 9 February and 31 March 2005, which compensated for her salary. The Court therefore finds that it has not been established that the applicant suffered pecuniary damage during the period from 9 February to 31 March 2005. It further does not discern any causal link between the violation found and the pecuniary damage alleged for the periods after termination of the employment relationship by ordinary dismissal with effect from 31 March 2005. The Court therefore rejects the applicant’s claim in respect of pecuniary damage. 104. On the other hand, it considers that the applicant must have sustained non-pecuniary damage. Ruling on an equitable basis, it awards her EUR 10,000 under that head. B. Costs and expenses 105. The applicant also claimed EUR 6,100 for the costs and expenses incurred before the Court. 106. The Government argued that this sum considerably exceeded the amounts usually awarded by the Court in respect of costs and expenses. 107. 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 in respect of costs and expenses for the proceedings before the Court. C. Default interest 108. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 10 (freedom of expression) of the Convention, finding that the applicant’s dismissal without notice had been disproportionate and the German courts had failed to strike a fair balance between the need to protect the employer’s reputation and the need to protect the applicant’s right to freedom of expression. The Court observed in particular that, given the particular vulnerability of elderly patients and the need to prevent abuse, the information disclosed had undeniably been of public interest. Further, the public interest in being informed about shortcomings in the provision of institutional care for the elderly by a State-owned company was so important that it outweighed the interest in protecting a company’s business reputation and interests. |
337 | Journalists covering demonstrations | II. RELEVANT DOMESTIC LAW A. The Constitution of the Republic of Azerbaijan 27. Article 46 (III) of the Constitution of the Republic of Azerbaijan reads as follows: “No one shall be subjected to torture or ill-treatment. No one shall be subjected to degrading treatment or punishment. ...” B. Law on Police of 28 October 1999 28. Police officers may use special equipment when, inter alia, it is considered that a person who is behaving dangerously may cause damage to himself or people around him (Article 26.II). “Special equipment” is defined as truncheons, arm-restraining instruments, tear gas, rubber bullets, water cannons and other means (Articles 1). Physical force, special equipment or firearms may be used when absolutely necessary in a manner proportionate to the danger posed. The police authorities must carry out an inquiry into every incident involving the use of physical force, special equipment or firearms, and must issue a pertinent opinion on its lawfulness (Article 26.VII). Unlawful use of force by a police officer entails the officer’s responsibility under the relevant legislation (Article 26.IX). 29. Police officers may use physical force, special equipment or firearms only in the event of absolute necessity or necessary self-defence, after all other means of coercion have failed to produce the required result, and depending on the gravity of the offence and the character of the offender (Article 27.I.1). Anyone injured as a result of the use of physical force, special equipment or firearms must be provided with the necessary medical aid (Article 27.I.5). The police officer must report to the relevant police authority, in writing, on the occasions he or she used physical force, special equipment or firearms (Article 27.I.7). The relevant prosecutor must also be informed of any such use of force within twenty-four hours (Article 27.I.8). THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 30. The applicant complained that he had been beaten up by police and that the domestic authorities had failed to carry out an effective investigation capable of identifying and punishing the police officers responsible. Article 3 of the Convention reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 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. Alleged ill-treatment of the applicant by the police officer (a) The parties’ submissions 32. The Government submitted that they could not state whether the applicant had been subjected to ill-treatment by the police, as there was no court decision in this respect. The Government further submitted that the demonstration of 9 October 2005 had been unauthorised and that the police were entitled to have recourse to use of force to disperse an unlawful demonstration. Accordingly, the use of force by the police could not be considered ill-treatment in the instant case. 33. The applicant submitted that he had been beaten up by a group of police officers led by A.V., and that they had used excessive force against him without any justification. In this connection he relied on the medical certificate of 26 October 2005, witness statements from two journalists, and the photo of A.V. taken at the scene of the incident. (b) The Court’s assessment 34. The Court reiterates that Article 3 enshrines one of the most fundamental values of democratic societies. Even in the most difficult circumstances, such as the fight against terrorism and organised crime, the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment. 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 Assenov and Others v. Bulgaria, 28 October 1998, § 93, Reports of Judgments and Decisions 1998 ‑ VIII). 35. Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. Assessment of this minimum level depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see Ireland v. the United Kingdom, 18 January 1978, § 162, Series A no. 25; Kudła v. Poland [GC], no. 30210/96, § 91, ECHR 2000-XI; and Peers v. Greece, no. 28524/95, § 67, ECHR 2001-III). The Court has considered treatment to be “inhuman” because, inter alia, it was premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical and mental suffering. It has deemed treatment to be “degrading” because it was such as to arouse in the victims feelings of fear, anguish and inferiority capable of humiliating and debasing them (see Kudła, cited above, § 92). 36. In assessing evidence, the Court adopts the standard of proof “beyond reasonable doubt”. Such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact (see, among many other authorities, Avşar v. Turkey, no. 25657/94, § 282, ECHR 2001-VII (extracts)). The Court is sensitive to the subsidiary nature of its role and recognises that it must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case (see, for example, McKerr v. the United Kingdom (dec.), no. 28883/95, 4 April 2000). Nevertheless, where allegations are made under Article 3 of the Convention, the Court must apply a particularly thorough scrutiny even if certain domestic proceedings and investigations have already taken place (see Muradova v. Azerbaijan, no. 22684/05, § 99, 2 April 2009, and Avşar v. Turkey, §§ 283-84, cited above). 37. The Court considers that the applicant has been able to produce sufficiently strong evidence supporting the fact that he was subjected to the use of force by the police. In particular, the applicant produced a medical certificate of 26 October 2005, which stated that he had been admitted to hospital on 9 October 2005 and had been diagnosed with closed cranio ‑ cerebral trauma, concussion and soft-tissue damage to the crown of head. He also produced two photos of himself taken immediately after he had been beaten. The fact that the applicant had been subjected to a beating and had received serious injuries on 9 October 2005 was in itself never placed in doubt by the investigating authorities, in particular in the Sabail District Prosecutor’s Office decision of 9 March 2006 suspending the investigation. As to the applicant’s claim that the injuries had been inflicted by police, it should be noted that he received those injuries during a police operation forcibly dispersing the demonstration of 9 October 2005. He produced statements from two witnesses supporting his version of the events, and a photo confirming A.V.’s presence at the scene of the incident. The evidence produced before the Court is sufficiently strong and consistent to establish at least a presumption that the applicant was beaten with truncheons by police officers during the dispersal of the demonstration. In the Court’s opinion, neither the Government in their submissions, nor the domestic authorities in their decisions, provided a convincing rebuttal of this presumption. 38. The Court will consequently examine whether the use of force against the applicant was excessive. In this respect, the Court attaches particular importance to the circumstances in which force was used (see Güzel Şahin and Others v. Turkey, no. 68263/01, § 50, 21 December 2006, and Timtik v. Turkey, no. 12503/06, § 49, 9 November 2010). When a person is confronted by police or other agents of the State, recourse to physical force which has not been made strictly necessary by the person’s own conduct diminishes human dignity and is in principle an infringement of the right set forth in Article 3 of the Convention (see Kop v. Turkey, no. 12728/05, § 27, 20 October 2009, and Timtik, cited above, § 47). 39. The Court considers that it has not been shown that the recourse to physical force against the applicant was made strictly necessary by his own conduct. It is undisputed that the applicant did not use violence against the police or pose a threat to them. It has not been shown that there were any other reasons justifying the use of force. Therefore, the Court cannot but conclude that the use of force was unnecessary, excessive and unacceptable. 40. The Court finds that the injuries sustained by the applicant establish the existence of serious physical pain and suffering. The applicant suffered a cranio-cerebral trauma and concussion, which required long-term medical treatment. The ill-treatment and its consequences must have also caused the applicant considerable mental suffering, diminishing his human dignity. In these circumstances, the Court considers that the ill-treatment complained of was sufficiently serious to attain a minimum level of severity falling within the scope of Article 3 and to be considered as inhuman and degrading treatment. 41. Accordingly, there has been a violation of Article 3 of the Convention under its substantive limb. 2. Alleged failure to carry out an effective investigation (a) The parties’ submissions 42. The Government submitted that the domestic authorities conducted an effective investigation of the applicant’s allegations of ill-treatment. In particular, the Government noted that following the applicant’s complaint on 9 November 2005 the domestic authorities instituted criminal proceedings. The investigator heard the applicant, two witnesses and A.V. and took all appropriate actions to identify those who had beaten the applicant. Moreover, the investigator ordered a forensic examination for 28 January 2006, at which the applicant failed to appear. 43. The applicant submitted that the domestic authorities failed to carry out an effective investigation of his allegations of ill-treatment. He noted that the domestic authorities had ignored all the evidence that he had been beaten by the police. He also submitted that he had not been informed of any decision by the investigator of 28 January 2006 ordering a forensic examination. 44. The parties were also in disagreement as to whether the applicant had been informed in timely fashion of the investigator’s decision of 9 March 2006 suspending the investigation. The Government submitted a copy of this decision, signed by the applicant with the remark that he disagreed with it, and a copy of a letter from the investigator, dated 9 March 2006, notifying of this decision and addressed to the applicant among others. The applicant maintained that he had not been informed of that decision until May 2006, and that the documents submitted by the Government had failed to indicate the date when a copy of the decision had been made available to the applicant; nor had they shown that he had been informed of it in timely fashion. (b) The Court’s assessment 45. Where an individual raises an arguable claim that he or she has been seriously ill-treated by police 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. 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, and Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000 ‑ IV). 46. For an investigation required by Articles 2 and 3 of the Convention to be effective, those responsible for and carrying out the investigation must be independent and impartial, in law and in practice. This means not only that there must be no hierarchical or institutional connection with those implicated in the events, but that there must also be independence in practical terms (see Boicenco v. Moldova, no. 41088/05, § 66, 11 July 2006; Kolevi v. Bulgaria, no. 1108/02, § 193, 5 November 2009; and Oleksiy Mykhaylovych Zakharkin v. Ukraine, no. 1727/04, § 66, 24 June 2010). 47. Furthermore, investigations of serious 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 (see Assenov and Others, cited above, § 103 et seq.). They must take all reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness statements and forensic evidence (see Tanrıkulu v. Turkey [GC], no. 23763/94, ECHR 1999-IV, § 104 et seq., and Gül v. Turkey, no. 22676/93, § 89, 14 December 2000). Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of those responsible will risk falling foul of this standard. 48. The notion of an effective remedy in respect of allegations of ill ‑ treatment also entails effective access for the complainant to the investigation procedure (see Assenov and Others, cited above, § 117). There must be an element of public scrutiny of the investigation or its results sufficient to secure accountability in practice, maintain public confidence in the authorities’ adherence to the rule of law, and prevent any appearance of collusion in or tolerance of unlawful acts (see Kolevi, cited above, § 194). 49. The Court observes that following the applicant’s claim of ill ‑ treatment, on 9 November 2005 the Sabail District Police Department instituted criminal proceedings under Article 132 (beating) of the Criminal Code. On 22 December 2005 the case was re-qualified under Article 163 (obstruction of the lawful professional activity of journalists) of the Criminal Code and transferred to the Sabail District Prosecutor’s Office. However, the applicant’s complaint was not handled with sufficient diligence, as no relevant procedural steps were taken until 12 January 2006, the date the applicant was questioned, more than three months after the incident. 50. Likewise, even assuming that, as the Government claimed, the investigator ordered a forensic examination on 28 January 2006, this was also done belatedly, two months and seventeen days after the beginning of the criminal inquiry and three months and seventeen days after the incident. In this connection, the Court also notes that, in any event, the Government did not submit a copy of the investigator’s decision requiring a forensic examination, nor did they produce any documentary evidence that the applicant had actually been informed of the investigator’s decision requiring a forensic examination, even assuming that there was such a decision. 51. In this connection, having regard to the material in its possession and the parties’ submissions, the Court notes that there are serious doubts that the applicant had been given effective access to the investigation procedure at all times and that he had been informed of all the procedural steps in a timely manner. 52. Having noted the above, the Court will now turn to what it considers the most problematic aspect of the investigation conducted in the present case. The Court has repeatedly stressed that the procedural obligation under Articles 2 and 3 requires an investigation to be independent and impartial, both in law and in practice (see paragraph 46 above). The Court notes that the Sabail District Prosecutor’s Office, which was formally an independent investigating authority and which conducted the investigation in the present case, requested the Sabail District Police Department to carry out an inquiry with the aim of identifying those who had allegedly ill-treated the applicant. As such, the investigating authority delegated a major and essential part of the investigation – identification of the perpetrators of the alleged ill ‑ treatment – to the same authority whose agents had allegedly committed the offence. In this respect, the Court finds it of no real significance that, while the alleged perpetrators were officers of the Riot Police Regiment of the Baku Police Department, it was another police department which was requested to carry out the investigation. What is important is that the investigation of alleged misconduct potentially engaging the responsibility of a public authority and its officers was carried out by those agents’ colleagues, employed by the same public authority. In the Court’s view, in such circumstances an investigation by the police force of an allegation of misconduct by its own officers could not be independent in the present case (compare, mutatis mutandis, Ramsahai and Others v. the Netherlands [GC], no. 52391/99, § 295-96, ECHR 2007 ‑ II; Aktaş v. Turkey, no. 24351/94, § 301, ECHR 2003 ‑ V (extracts); and McKerr, § 128, cited above). 53. The Sabail District Police Department’s inquiry yielded no results and was “unable” to identify the police officers in question. In this connection the Court notes that the material in the case file does not contain any evidence such as documents relating to the actual steps taken by the police investigators. 54. The Sabail District Prosecutor’s Office investigator proceeded to rely on the Sabail District Police Department’s “no result” report, and merely suspended the proceedings without taking any further action. In the Court’s view, the investigating authority (the Sabail District Prosecutor’s Office) was fully competent to take, and should have been entirely capable of taking, independent, tangible and effective investigative measures aimed at identifying the culprits, such as obtaining a list of the members of the Riot Police Regiment engaged in the dispersal operation, questioning all the police officers involved, identifying and questioning other witnesses (those on the demonstration, bystanders, and so on), holding face-to-face confrontations of witnesses where necessary, attempting to reconstruct the chronology of the events, and so on. None of this was done by the investigator independently. Nor did the investigating authorities, the domestic courts, or the Government provide any plausible explanation for the failure to do so. 55. The applicant was also deprived of the opportunity to effectively seek damages in civil proceedings, as the civil courts refused to admit his civil claim, citing as a reason his inability to name specific police officers as defendants. The Court notes that in practice this requirement amounted to an insurmountable obstacle for the applicant, since the identification of those police officers was the task of the criminal investigation, which in the present case was ineffective and lacked independence. 56. The foregoing considerations are sufficient to enable the Court to conclude that the investigation of the applicant’s claim of ill-treatment fell short, for the reasons noted above, of the requirements of Article 3 of the Convention. There has accordingly been a violation of Article 3 of the Convention under its procedural limb. II. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 57. Relying on Articles 10 and 11 of the Convention, the applicant complained that he had been ill-treated by police with the aim of preventing him from carrying out his journalistic activity and that his right to freedom of peaceful assembly had been violated. 58. The Court notes that, as it appears from the applicant’s own submissions, he was not a participant of the unauthorised demonstration, but was present there to report on it in his capacity of a journalist. In such circumstances, the Court considers that the complaint should be examined under Article 10 only, as this provision is lex specialis in so far as the circumstances of the present case are concerned. Article 10 of the Convention provides: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” A. Admissibility 59. The Government submitted that the applicant had failed to exhaust domestic remedies. In particular, the applicant’s civil complaint was rejected by the domestic courts for non-compliance with the procedural requirements relating to lodging a lawsuit. The Government argued that the applicant could have remedied the procedural shortcomings found by the domestic courts in his civil complaint and re-submitted it to the court, but he had failed to do so. 60. The applicant submitted that his civil claim had been lodged properly, that he had correctly indicated the Ministry of Internal Affairs as the defendant, and that he had lodged a correct number of copies of the claim enclosed together with all the relevant documents in his possession. 61. The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use first the remedies that are normally 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, in practice as well as in theory, failing which they will lack the requisite accessibility and effectiveness. Article 35 § 1 also requires that the 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 laid down in domestic law, but not that recourse should be had to remedies which are inadequate or ineffective (see Akdivar and Others v. Turkey, 16 September 1996, §§ 65-67, Reports of Judgments and Decisions 1996 ‑ IV). 62. The Court notes that the applicant lodged a civil claim complaining, inter alia, of a violation of his rights under Article 10 of the Convention (see § 22 above and, a contrario, Rizvanov v. Azerbaijan, no. 31805/06, § 73, 17 April 2012). This claim was not admitted for a number of formal reasons, such as the applicant’s alleged failure to submit a copy of a forensic report and to identify specific individuals as defendants. However, the Court reiterates that, in the circumstances of the present case, it was practically impossible for the applicant to comply with these requirements owing to the ineffectiveness of the criminal investigation in procuring forensic evidence and identifying the police officers responsible for the applicant’s beating. As such, those requirements relied on by the domestic courts constituted, in essence, an insurmountable obstacle for examination of the merits of the applicant’s complaint in the civil proceedings. In such circumstances, the Court considers that the applicant has done all what could have been expected of him to exhaust domestic remedies. 63. For these reasons, the Court rejects the Government’s objection. It further notes that this complaint 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 64. The Government submitted that the applicant was not a participant of the demonstration, but that he was “observing” it. They noted that, during the demonstration, the applicant had not been wearing a special blue vest identifying him as a journalist, which would have enabled the law ‑ enforcement authorities to distinguish him from demonstration participants. The Government further submitted that the demonstration had been unlawful and that the police had been entitled to have recourse to appropriate use of force to disperse the demonstration and detain persons who failed to comply with lawful police orders. Therefore, the Government noted that “the applicant’s alleged beating could have taken place in [the] circumstances” where police officers, in the absence of a blue vest, had difficulty in distinguishing the applicant from the demonstration participants, against whom they were entitled to use force. The police had no intention to interfere with the applicant’s journalistic activity or prevent him from reporting on the demonstration. 65. The applicant submitted that, although he had not been wearing a blue vest, he was wearing a badge on his chest clearly identifying him as a journalist. He noted that witnesses had confirmed this fact. Moreover, while he was being beaten by the police, he repeatedly told them that he was a journalist. Lastly, the applicant argued that, contrary to the Government’s submissions, the use of force by the police at the demonstration was in any event unlawful and unjustified. 66. The Court has repeatedly stressed the pre-eminent role of the press in a democratic State governed by the rule of law (see the Castells v. Spain, 23 April 1992, § 43, Series A no. 236; Thorgeir Thorgeirson v. Iceland, 25 June 1992, § 63, Series A no. 239; Goodwin v. the United Kingdom, 27 March 1996, § 39, Reports 1996 ‑ II; Jersild v. Denmark, 23 September 1994, § 31, Series A no. 298; and Fatullayev v. Azerbaijan, no. 40984/07, § 88, 22 April 2010). It is incumbent on the press to impart information and ideas on matters of public interest. Not only does it have the task of imparting such information and ideas: the public also has a right to receive them. This undoubtedly includes, like in the present case, reporting on opposition gatherings and demonstrations which is essential for the development of any democratic society. Were it otherwise, the press would be unable to play its vital role of "public watchdog" (see, among other authorities, Observer and Guardian v. the United Kingdom, 26 November 1991, § 59, Series A no. 216, and The Sunday Times v. the United Kingdom (no. 2), 26 November 1991, § 50, Series A no. 217). 67. It is undisputed that the applicant was present at the place of demonstration to report on the event; that is, he was doing his journalistic work. As established above, the applicant was subjected to use of force in breach of Article 3 of the Convention, despite not having conducted himself in a manner that would make use of force necessary. Although the applicant was not wearing a special vest, he was wearing a journalist’s badge on his chest and also specifically told the police officers that he was a journalist. Thus, the Court cannot accept the Government’s argument that police officers had been unable to determine that the applicant was a journalist. 68. The Court notes that public measures preventing journalists from doing their work may raise issues under Article 10 (see, mutatis mutandis, Gsell v. Switzerland, no. 12675/05, § 49 et seq., 8 October 2009). Turning to the present case, the Court notes that it cannot be disputed that the physical ill-treatment by State agents of journalists while the latter are performing their professional duties seriously hampers their exercise of the right to receive and impart information. In this regard the Court notes the Government’s argument that there was no actual intention to interfere with the applicant’s journalistic activity as such. However, irrespective of whether there was such intention in the present case, what matters is that the journalist was subjected to the unnecessary and excessive use of force, amounting to ill-treatment under Article 3 of the Convention, despite having made clear efforts to identify himself as a journalist who was simply doing his work and observing the event. Accordingly, the Court considers that there has been an interference with the applicant’s rights under Article 10 of the Convention. 69. Furthermore, the Court finds that this interference was not justified under paragraph 2 of Article 10. It was not shown convincingly by the Government that it was either lawful or pursued any legitimate aim. In any event, it is clear that such interference as in the present case could not be considered as “necessary in a democratic society”. 70. There has accordingly been a violation of Article 10 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 71. The applicant complained that the domestic courts’ refusal to admit his civil action had been wrongly substantiated and breached his right of access to court. 72. The relevant part of Article 6 of the Convention reads as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” 73. Having regard to the finding of a violation of the procedural aspect of Article 3 (and, in particular, the findings in paragraph 55 above), and noting that the present complaint concerns essentially the same matters, the Court considers that it is not necessary to examine whether this case raises an issue Article 6 of the Convention. Therefore, the Court rejects this part of the application pursuant to Article 35 §§ 3 (a) and 4 of the Convention. IV. 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 1. Pecuniary damage 75. The applicant claimed 800 euros (EUR) in compensation for pecuniary damage for the cost of his medical treatment, and EUR 16,500 in compensation for pecuniary damage for lost earnings. He also claimed EUR 10,000 compensation for pecuniary damage for his treatment abroad. 76. The Government contested the claim, noting that the applicant had failed to substantiate his allegation. 77. The Court points out that under Rule 60 of the Rules of the Court any claim for just satisfaction must be itemised and submitted in writing, together with the relevant supporting documents or receipts, failing which the Court may reject the claim in whole or in part. 78. In the present case, even assuming that there is a causal link between the damage claimed and the violations found, the Court observes that the applicant did not submit any documentary evidence supporting this claim. In particular, he did not submit any receipts, prescriptions or any other documents certifying his expenses for medical treatment, or an employment contract or other documents certifying his income. 79. For the above reasons, the Court rejects the applicant’s claims in respect of pecuniary damage. 2. Non-pecuniary damage 80. The applicant claimed EUR 10,000 in compensation for non ‑ pecuniary damage. 81. The Government contested the amount claimed as unsubstantiated and excessive. 82. The Court considers that the applicant has suffered non-pecuniary damage which cannot be compensated for solely by the finding of violations and that compensation should thus be awarded. Making its assessment on an equitable basis, as required by Article 41 of the Convention, the Court awards the applicant the sum of EUR 10,000 under this head, plus any tax that may be chargeable on this amount. B. Costs and expenses 83. The applicant claimed EUR 1,000 for costs and expenses incurred before the domestic courts in the criminal proceedings and EUR 1,600 for the civil proceedings. He also claimed EUR 2,700 for costs and expenses incurred before the Court. In support of his claim, he submitted several contracts for legal services rendered in the proceedings before the domestic courts and the Court. According to these contracts, the amounts due were to be paid in the event that the Court found a violation of the applicant’s rights. The applicant also claimed EUR 1,750 for translation expenses and EUR 200 for postal expenses. 84. The Government considered that the claim was unsubstantiated and excessive. In particular, the Government submitted that the applicant had failed to produce all the necessary documents in support of his claims and that the costs and expenses had not actually been incurred, because the amount claimed had not yet been paid by the applicant. 85. 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. Having regard to the documents in its possession and the above criteria, the Court considers it reasonable to award the sum of EUR 3,000 covering costs under all heads. C. Default interest 86. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention as concerned the treatment of the applicant by the police, given in particular his injuries, which proved that he had experienced serious physical and mental suffering. It noted, inter alia, that the applicant had not used violence against the police or posed a threat to them. Nor had the authorities given any other reasons justifying the use of force, which had therefore been unnecessary, excessive and unacceptable. The Court also held that there had been a violation of Article 3 of the Convention concerning the investigation into the applicant’s claim of ill-treatment, finding that it had been ineffective and had lacked independence. It noted in particular that no relevant procedural steps had been taken until the applicant had been questioned, more than three months after the incident, and that the identification of those responsible for the applicant’s beating had been delegated to the same authority whose agents had allegedly committed the offence. Even if another police department had been in charge of this major part of the investigation, the agents had been colleagues, employed by the same public authority. the development of any democratic society. The applicant had, however, been prevented from reporting through physical ill-treatment and an excessive use of force. The Court could not accept that the police officers had been unable to determine that the applicant was a journalist, as he was wearing a badge and had explicitly stated his occupation. Moreover, the Court pointed out that the physical ill-treatment by State agents of journalists performing their professional duties had seriously hampered the exercise of their right to receive and impart information. Irrespective of whether there had been any actual intention to interfere with the applicant’s journalistic activity, he had been subjected to unnecessary and excessive use of force, in breach of Article 3 (prohibition of inhuman or degrading treatment) of the Convention, despite having made clear efforts to identify himself as a journalist at work. Accordingly, there had been an interference with the applicant’s rights under Article 10, which had not been “necessary in a democratic society”, as the Government had not shown convincingly that this interference had been lawful or pursued a legitimate end. |
994 | Cases declared inadmissible under Article 18 in conjunction with Article 5 | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Code of Criminal Procedure, as it stood at the material time 57. The relevant provisions of the Code of Criminal Procedure concerning the preventive measure of pre-trial detention read as follows: Article 159 §§ 1 and 2 “Detention” “1. No one may be arrested without a court order or other judicial decision. 2. Courts, prosecutors and investigators are obliged to immediately release any person who is detained unlawfully.” Article 417 §§ 1 and 3 “Committal for trial” “1. Where there is a sufficient basis for hearing the case, the judge (court), without prejudging the merits of the case, shall commit the accused for trial... 3. During the admissibility hearing, in addition to deciding whether to commit the accused for trial..., the judge (court) shall decide whether to impose a measure of restraint on the accused.” Article 419 “Time-limits for committal decisions” “The judge (court) shall decide whether to commit the accused for trial within 14 days or, in complicated cases, within a month of the date of delivery of a final judgment on the last criminal case registered with the same judge (court).” B. Criminal Code 58. At the time the applicant held the post of chairperson of the CAA, Article 332 of the Criminal Code, proscribing the offence of abuse of official authority, read as follows: Article 332 § 1 and 3 – “Abuse of official authority” “1. Abuse of official authority by an officer or a person of equivalent status, to the detriment of public service requirements and in order to gain any personal profit or privilege or any profit or privilege for another person, and which has substantially affected the rights of a legal or natural person, or the legal interests of society or the State, shall be punishable by a fine or a term of up to three years ’ imprisonment, a bar on holding public office or a bar on engaging in professional activities for a period of up to three years. 3. The action referred to in paragraph 1 ... above: ( a) committed on more than one occasion; ... shall be punishable by a term of imprisonment of between three and eight years, accompanied by a bar on holding public office or a bar on engaging in professional activities for a period of up to three years.” C. The Law of 29 October 1996 on Normative Legal Acts, as in force at the material time 59. At the time the applicant held the post of chairperson of the CAA, the relevant parts of sections 33 and 54 of the Law read as follows: Section 33 ( 4 ) “The draft of a normative act to be issued by a minister or by a head of a public authority shall be submitted to the Ministry of Justice, which, within a period of two weeks, shall issue an opinion as to the compatibility of the draft with legislative acts and presidential decrees.” Section 54 “1. Any public authority ... that has issued a normative act must forward that act to the Ministry of Justice for registration within a period of ten days of the date of signature thereof by the authorised person. 2. All such normative acts ... must be accompanied ... by the opinion of the Ministry of Justice referred to in sub-section 4 hereof. 3. The Ministry of Justice shall enter the normative act into the State register and allocate it a number within a period of three days of [it] having been forwarded ... 4. Before being entered into the State register as normative acts, the Ministry of Justice must issue an opinion as to whether draft normative acts are compatible with normative acts of a higher legal force. If the opinion is negative, the Ministry of Justice may not enter the act in the State register. 5. Registration of a normative act may be refused where: ... b) following amendments to the relevant legislation, the legal relationships on which the normative act is based are governed by new rules ... ” D. The Act of 28 May 1999 on Public-Law Entities, as it stood at the material time 60. At the time the applicant was chairperson of the CAA, Section 13 ( d ) of this Law read as follows: Section 13(d) “Public-law entities may be funded by ... d) income received for work performed on a contractual basis ...” E. Various legal acts on civil aviation 61. Domestic law concerning State regulatory activities in the field of civil aviation changed significantly over time. For the purposes of the present case, an overview of the relevant legal provisions can be divided into two periods – i. how the relevant legal framework developed between 12 March 2002 and 13 March 2004, when the applicant held the post of chairperson of the civil aviation authority; and ii. the changes that occurred in the legal framework after the applicant resigned on 13 March 2004 and up to the present date. 1. As the domestic law on State regulatory activities in the civil aviation stood prior to 13 March 2004 (a) Order no. 110 of the Minister for Transport of 28 December 2001 62. By this order, the Minister for Transport approved the Articles of Association of the CAA. 63. Article 1 §§ 1 and 3 of the Articles of Association defined the CAA as a public-law entity, entrusted by the State with the task of regulating, supervising and controlling civil aviation. In performance of that task, the CAA reported to the Minister for Transport. 64. Under Article 2 § 1, the regulation of civil aviation was intended to ensure the safety of flights and to regulate the legal, technical, technological and financial aspects of their operation. 65. Under Article 7, the chairperson of the CAA, who was appointed by the Minister for Transport, ensured that those objectives were achieved by the CAA, issued orders within the scope of his remit, and so on. Under sub ‑ paragraph (k) of Article 7, the chairperson also performed “other activities for which he is responsible under Georgian law”. 66. Pursuant to Article 8 § 1, the primary source of income of the CAA was “the annual regulation fee for transport activities”, as defined by the State Regulation Act, as well as the sources of funding provided for by section 13 of the Public-Law Entities Act. 67. On 14 July 2003, prompted by the legal effects of the Constitutional Court ’ s judgment of 10 January 2003, the term “annual registration fee for transport activities” was deleted from Article 8 § 1 (see also paragraphs ... below). (b) Order no. 109 of the Minister for Transport of 28 December 2001, valid until 14 July 200 3 68. By this order, the Minister for Transport approved the rules for determining the amount and payment of the “annual regulation fee for transport activities” in the field of civil aviation. 69. Under Article 2, the regulation fee was payable annually and constituted the CAA ’ s primary sources of revenue. It was directly linked to performance by the CAA of its regulatory functions as defined by the law, and did not represent income from commercial activities. 70. Pursuant to Article 4 § 2, the full annual regulation fee was to be paid by the company concerned for the account of the CAA, which would make use of it in accordance with the law. 71. On 14 July 2003, prompted by the legal effects of the Constitutional Court ’ s judgment of 10 January 2003, the Minister repealed Order no. 109. (c) The Act of 20 June 2001 on the Rules of State Management and the Regulation of Transport and Communication (“ the Regulation Act”) 72. A direct consequence of the Constitutional Court ’ s judgment of 10 January 2003 was a major revision to the Regulation Act, which took the form of an amendment of 14 August 2003. 73. The following is a summary of how that Amendment affected the CAA. 74. Prior to the Constitutional Court ’ s judgment of 10 January 2003, Section 1(u) and 9 ( 5 ) of the Act had provided that “the annual regulation fee for transport activities”, which had constituted one of the CAA ’ s primary sources of revenue, was to be determined by a normative act of the Minister for Transport and Communications. The fee was linked to performance by the CAA of the regulatory functions entrusted to it by law, it had to be a reasonable amount and non-discriminatory, and did not represent income from commercial activities. 75. The Constitutional Court ’ s judgment of 10 January 2003 declared the above-mentioned sections unconstitutional, with effect from 1 April 2003 ( see also paragraphs 9-13 above). 76. Prior to 1 April 200 3, section 14 of the Regulation Act read as follows: [Former] Section 14(2), (3) and (5) “2. The budget sources of a transport authority are: a) the annual regulation fee for transport activities; b) other income provided for by the Public-Law Entities Act. 3. The annual regulation fee for transport activities shall be paid in full into the account of the relevant authority in accordance with the rules laid down by law. The relevant authority will use such sums in accordance with the law. 5. The budget of the authority concerned, together with the corresponding explanatory report, shall be approved by the Minister for Finance upon the report of the Minister for Transport and Communications. 77. After 1 April 200 3, paragraphs 2(a) and 3 of the former section 14 lost their legal effect because they were unconstitutional, whilst the amendment of 14 August 2003 also repealed paragraph 5. Thus, by virtue of the amendment, the revised section 14 read as follows: [New] Section 14 “The budget sources of the authority concerned shall be income received in accordance with the National Independent Regulatory Bodies Act, the Public-Law Entities Act and other relevant normative acts.” 78. Prior to 1 April 200 3, section 22 ( 1 ) (b) read as follows: Section 22 ( 1 ) (b) “With regard to transport, the fees for services shall include any charge which is necessary in order to provide the service and which is economically justified, including the annual regulation fee for transport activities ... “ 79. The amendment of 14 August 2003 replaced the term “the annual regulation fee for transport activities” in section 22(1)(b), which had been declared unconstitutional on 10 January 2003, by “and any other necessary charge provided for by law”. 80. The Amendment Act of 14 August 2003 also introduced transitional provisions, including the following in section 24 ( 5 ) : Section 24 ( 5 ) “Pending adoption of a new legislative act on the matter by Parliament, the rates of the various regulation fees ( რეგულირების საფასური ) shall be set as determined directly by the transport authority concerned.” 81. Article 1 of Order no. 1, the legal act issued by the chairperson of the CAA on 25 November 2003, indicated that it was based on section 24(5) of the Regulation Act (see also paragraph 16 above). Thus, the Order set the amount and modalities of payment of the regulation fee for transport activities in the field of civil aviation. (d) Presidential Decree no. 364 of 25 July 2003 82. According to its preamble, the decree ( ბრძანებულება ) was issued by the President of Georgia in accordance with the judgment of the Constitutional Court of 10 January 2003 and section 13 of the Public-Law Entities Act, and within the consequent framework of necessary institutional reforms. Article 1 of the decree read as follows: Article 1 “The public-law entities created pursuant to the [Regulation] Act, such as ..., the CAA, are hereby authorised to fund their respective budgets by charging amounts corresponding to the value of the service provided on the basis of contracts.” 2. Development of domestic law on civil aviation from 13 March 2004 to present day 83. On 30 June 2004 a new Chapter VI, relating to the regulation fee, which repealed the above-mentioned transitional section, 24 ( 5 ) ( see paragraph 80 above), was introduced to the Regulation Act. The relevant provisions of that Chapter read as follows: Section 23 ( 1 )( 1 ) and (1)( 2 ) “1. The regulation fee [for civil aviation] constitutes a means of covering the expenses necessarily incurred in the performance of the regulatory functions allocated by law to the CAA. The regulation fee may not exceed 2% of the price of the service provided by the payer or the amount, excluding VAT, received by the payer in respect of its civil aviation activities. The CAA may, by a normative act, set the regulation fee below the maximum amount defined above. 2. The rules for payment of the regulation fee shall be laid down by a normative act of the CAA so as to ensure: a) that the CAA is able to perform its tasks ...; b) that the expenses incurred by the CAA in providing companies with regulatory services are covered; c) that the rights of the parties concerned are safeguarded through the safe and effective performance of transport activities ...” 84. It was on the basis of the new Chapter VI in the Regulation Act that the applicant ’ s successor, appointed after the applicant resigned, issued Order no. 3 on 16 August 2004. Similarly to the applicant ’ s impugned Order no. 1, the new order set rates for the regulatory fees chargeable by the CAA on various private commercial activities in the field of civil aviation. Order no. 3 was duly approved by the Minister of Justice and was enforced without any impediments. 85. On 30 March 2007 the Georgian Parliament adopted a new Act on State Regulatory Activities in Transport (“the new Act on State Regulation in Transport” ), which is currently in force. The adoption of the new law automatically resulted in the repealing of the previous Act of 20 June 2001 on State Regulation, and the accompanying Order no. 3 issued by the chairperson of the CAA (see the preceding paragraph). 86. Pursuant to sections 1(j) and 9 of the new Act on State Regulation in Transport, the CAA was entitled to receive “onto its own account” regulatory fees from private companies operating in the same field so it could perform its regulatory activities in the field of civil aviation on behalf of the State. The law emphasised that the payment of those fees was “mandatory” as it constituted compensation for the public services provided by the regulatory authority. In addition to the payment of those fees, section 9 provided for a number of other additional sources of revenue for the CAA, such as the possibility for the authority to conclude various civil contracts and gain subsidies from the State budget. 87. On 14 April 2011 the Minister of the Economy and Sustainable Development issued Order no. 1-1/583, endorsing the Articles of Association of the CAA, in accordance with the new Act on State Regulation in Transport. Article 7 ( c) and (d) of the Order, which are still in force, confirmed that the primary sources of revenue for the CAA were either regulatory fees mandatorily collected from companies operating in the civil aviation sector in exchange for the regulatory services it provided, or income received from separately established contractual relations. 88. Furthermore, on the basis of the new Act on State Regulation in Transport, the Minister of the Economy and Sustainable Development issued, on 18 April 2011 and 20 April 2012, two more Orders, nos. 1-1/611 and 1-1/1025, which set detailed rates for regulatory fees on various, specific commercial activities which were mandatory and were to be paid directly to the CAA ’ s account in exchange for the regulatory activities it provided. Those rates are still applicable. THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 89. The applicant complained under Article 5 § 1 of the Convention that his detention between 16 September 2004, the date of the expiration of his five-month detention period, and 16 March 200 5, the date of his committal for trial, had been unlawful. That provision of the Convention reads, in so far as relevant, as follows: Article 5 “1. ... 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 ... ;” 90. The Government submitted that there had been no need for a court to authorise the applicant ’ s pre-trial detention after the five - month detention period had expired on 16 September 2005 because by that time the investigation of the case had already been terminated and a few days later, on 20 September 2005, the case had been transmitted to the first-instance court for trial. The Government stated that in accordance with the relevant provisions of the Code of Criminal Procedure (“the CCP”) the fact that the case had been transmitted to the trial court had sufficed for the detention to fall under “judicial scrutiny” and thus to be compatible with Article 5 § 1 of the Convention. 91. The applicant replied that his detention from 16 September and 16 March 2005 had been unlawful because it had not been covered by a valid court decision. A. Admissibility 92. The Court notes that this complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 93. The Court notes that it has already found a violation of Article 5 § 1 of the Convention in a number of cases, including those directed against Georgia, concerning the practice of holding defendants in custody solely on the basis of the fact that a bill of indictment had been filed with a trial court. Detaining defendants without a specific legal basis or clear rules governing their situation – with the result that they may be deprived of their liberty for an unlimited period of time without judicial authorisation – is incompatible with the principles of legal certainty and protection from arbitrariness, which are common threads throughout the Convention and the rule of law (see, amongst many other authorities, Khudoyorov v. Russia, no. 6847/02, § 146-147, ECHR 2005 ‑ X (extracts); Baranowski v. Poland, no. 28358/95, §§ 53-58, ECHR 2000 ‑ III; Ječius v. Lithuania, no. 34578/97, §§ 60 ‑ 64, ECHR 2000 ‑ IX; Ramishvili and Kokhreidze v. Georgia, no. 1704/06, § 106 ‑ 111, 27 January 2009; and Gigolashvili v. Georgia, no. 18145/05, §§ 32 ‑ 36, 8 July 2008). 94. The Court notes that the present application is no different from the Ramishvili and Kokhreidze or Gigolashvili cases cited above, owing to the identical deficiencies in the Georgian criminal procedural law and practice at the material time. 95. Notably, under Article 417 §§ 1 and 3 of the CCP, once the prosecution had terminated the investigation and transmitted the criminal case file to the court with jurisdiction, the latter could hold an admissibility hearing and decide whether to commit the accused for trial and whether it was necessary to impose a restraint measure on that individual. However, a problem arose with the timing of such a hearing. Pursuant to Article 419 of the CCP, an admissibility hearing was required to be held within fourteen days or, for “complicated cases”, within a month of the delivery of a final judgment on the last, unrelated criminal case brought before the same judge, but the latter had no time constraints in deciding that “last” case. The CCP neither required that a judicial order authorising the defendant ’ s detention should be issued in the meantime, nor did it specify any statutory limits for this phase of detention. Such statutory lacunae resulted in the practice of detaining defendants without any judicial decision for months (see also Absandze v. Georgia (dec.), no. 57861/00, 20 July 2004; and Ramishvili and Kokhreidze, cited above, §§ 108-109 ). 96. It follows that for six months, between 16 September 2004 and 16 March 2005, there was no judicial decision authorising the applicant ’ s detention. The fact that the criminal case file and the bill of indictment had been sent to the trial court did not render the remaining period of detention “lawful” within the meaning of Article 5 § 1 of the Convention (see Gigolashvili, cited above, § 36, and Nakhmanovich v. Russia, no. 55669/00, § 68, 2 March 2006). 97. There has thus been a violation of Article 5 § 1 of the Convention in respect of that period of detention. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 98. The applicant complained under Article 6 § 1 of the Convention that the domestic courts had not given sufficient reasons for their decisions to convict him of a criminal offence. The relevant part of Article 6 reads as follows: Article 6 “1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” 99. The Government submitted that the courts had fully examined the case in the light of all the most important evidence submitted by the applicant, including the audit report of 2 0 July 2 004. The examination of the case had been conducted in truly adversarial proceedings, during which the principle of the equality of arms had been duly respected. Both parties ’ legal and factual submissions had been carefully addressed by the courts in their decisions. 100. The applicant maintained that there had been a manifest lack of duly reasoned domestic decisions confirming his guilt. Notably, the domestic courts had failed to address the fact that by concluding contracts with the various companies working within civil aviation, the applicant had simply followed the instructions given by the Constitutional Court in its judgment of 10 January 2003. Nor had the courts taken into consideration the fact that he had issued the impugned Order no. 1 on the basis of Presidential Decree no. 364 of 25 July 2003. It was equally problematic that the domestic courts had not explained in their decision why he had been acquitted with respect to his dealings with fourteen aviation companies but convicted in relation to the remaining companies, whereas the factual circumstances underlying both the acquittal and conviction had been identical. A. Admissibility 101. 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 102. Although it is not the Court ’ s function to deal with errors of fact or law allegedly committed by national courts (see Tejedor García v. Spain, 16 December 1997, § 31, Reports of Judgments and Decisions 1997 ‑ VIII; and Buzescuv. Romania, no. 61302/00, § 63, 24 May 2005 ), it still reiterates that according to its established case-law, reflecting a principle linked to the proper administration of justice under Article 6 § 1 of the Convention, the judgments of courts and tribunals should adequately state the reasons on which they are based, and which should be void of manifest arbitrariness, in order to show that the parties were duly heard and ensure public scrutiny of the administration of justice (see Taxquet v. Belgium [GC], no. 926/05, § 91, ECHR 2010; Salov v. Ukraine, no. 65518/01, § § 89-92, ECHR 2005 ‑ VIII (extracts), Jgarkava v. Georgia, no. 7932/03, § 71, 24 February 2009; and Hirvisaari v. Finland, no. 49684/99, § 30, 27 September 2001). 103. Admittedly, Article 6 § 1 cannot be understood as requiring a detailed answer to every argument raised by the parties, and the question whether a court has failed to fulfil its obligation to state reasons can only be determined in the light of the circumstances of a particular case (see Ruiz Torija v. Spain, 9 December 1994, § 29, Series A no. 303-A, Suominen v. Finland, no. 37801/97, § 36, 1 July 2003; and Boldea v. Romania, no. 19997/02, § 30, 15 February 2007 ). However, even though a domestic court has a certain margin of appreciation when choosing arguments in a particular case and admitting evidence in support of the parties ’ submissions, the injured party can expect a specific and express reply from the court to those submissions which are decisive for the outcome of the proceedings in question (see Hiro Balani v. Spain, 9 December 1994, §§ 27 ‑ 2 8, Series A no. 303 ‑ B; Grădinar v. Moldova, no. 7170/02, § § 107 ‑ 108, 8 April 2008; and Gheorghe v. Romania, no. 19215/04, § 43, 15 March 2007 ). 104. The Court observes that the applicant was convicted of abuse of official authority on account of two specific actions that he took in his capacity as chairperson of the CAA: (i) the fact that he had concluded service agreements with the three civil aviation companies on 28 March and 13 August 2003 for the purpose of collecting fees for services, which in actual fact represented the regulation fee in disguise, from them between 1 April and 1 October 2003, and (ii) the fact that the same regulation fees had continued to be collected from some eight other civil aviation companies on the basis of Order no. 1, which had been issued unlawfully by the applicant on 25 November 2003. 105. With respect to the first episode – the collection of the fee for services from the companies by the CAA on the basis of service agreements dated 28 March and 13 August 2003 – the domestic authorities prosecuted the applicant for his failure to abide by the Constitutional Court ’ s judgment of 10 January 2003, which had allegedly banned the authority from charging any fees to civil aviation companies. However, having regard to the reasons given in the constitutional judgment in question, it cannot be resolutely concluded that the Constitutional Court outright forbade the CAA from entering into service agreements with the civil aviation companies. Admittedly, the constitutional judgment invalidated the statutory obligation to pay the “annual regulation fee for transport activities” under the law. However, in the reasoning of the same judgment, the Constitutional Court also entertained the idea, as an answer to the CAA ’ s argument of its alleged inability either to function without being funded with fees for services and to sign services contracts with civil aviation companies, that it was, on the contrary, preferable from the constitutional point of view for the CAA and civil aviation companies to enter into freely-formed contractual relations, whereby the latter companies would undertake a contractual obligation to pay a fee in exchange for the regulatory services provided by the CAA, in accordance with section 13(d) of the Public-Law Entities Act (see paragraphs 11-12 and 60 above). That being so, the Court finds it difficult to understand why the Tbilisi City Court, when convicting the applicant for having entered into services agreements with the civil aviation companies, did not give any meaningful answer to the applicant ’ s major defence argument that he had merely followed the Constitutional Court ’ s indication to enter into such contractual relationships (compare paragraphs 43 and 47 above). Of further significance is the audit report of 20 July 2004, an investigative measure that had been commissioned by the authorities themselves, which suggested that the initiation and conclusion of the impugned contracts by the applicant in his capacity as chairperson of the CAA was apparently in accordance with the Constitutional Court ’ s ruling of 10 January 2003 (see paragraph 22-26 above). The Court further observes that at least one of those contracts, the second one, dated 13 August 2003, had been based on an additional legal ground, which was Presidential Decree no. 354 of 25 July 2003. That decree stated outright that the CAA was empowered to charge fees to civil aviation companies in exchange for regulatory services, on the basis of privately concluded contracts. Noteworthy in this regard was that the decree itself emphasised in its preamble that for the CAA to follow such a mode of operation “was in accordance with the judgment of the Constitutional Court of 10 January 2003” (see paragraph 8 2 above). 106. As regards the second episode on which the applicant ’ s conviction was grounded – the charging of the regulation fee between 1 October 2003 and 16 March 2004 on the basis of Order no. 1 of 25 November 2003 – the domestic courts concluded that it had been unlawful for the applicant to set regulation fees unilaterally after the Constitutional Court ’ s judgment of 10 January 2003 had heavily amended the Regulation Act by removing all references to the “the annual regulation fee for transport activities”. However, the Court considers that the domestic courts failed to address the self-evident fact that Order no. 1 had been based on section 24 ( 5 ) of the State Regulation Act, a transitional provision which was introduced by the Amendment of 14 August 2003. Notably, that transitional provision read that the CAA, as a transport regulation authority, was entitled to set regulation fees on its own, pending the adoption of a new piece of legislation on the matter by Parliament. Given that a new law set rates for regulation fees as late as 30 June 2004 ( see paragraph 83 above), it is difficult to understand why it was wrongful for the applicant to regulate the matter by issuing Order no. 1 on 25 November 200 3 as head of the CAA, in accordance with the above-mentioned section 24 ( 5 ). Furthermore, if it was manifestly unlawful for the applicant to issue Order no. 1, which took effect from 1 October 2003, then the Ministry of Justice, the authority in charge of overseeing the lawfulness of various sub-legislative legal acts, should ordinarily have flagged up all the underlying legal defects of the order. Furthermore, the audit report of 2 0 July 2004, the only forensic item of evidence available in the case file (see paragraphs 22, 24 and 42 above ), again suggested that the applicant had apparently acted in conformity with the then existing legislation, when issuing Order no. 1 (see also paragraphs 80 and 81 above). 107. The Court observes that a clarification of all the above-mentioned factual and legal aspects was indispensable for the purposes of establishing the applicant ’ s guilt in relation to both episodes. However, despite the fact that the applicant duly voiced all the relevant arguments before the domestic authorities ( see paragraphs 28, 30, 43-44, 50 and 52 above), the domestic courts manifestly omitted to give them any meaningful consideration in their decisions. Indeed, it is irregular that none of the three judicial instances attempted in their decisions to have a discussion about the correlation between the applicant ’ s actions, what exactly was said in the Constitutional Court ’ s judgment of 10 January 2003 and what the relevant statutory law was in the immediate aftermath of that constitutional judgment. 108. The foregoing considerations are sufficient for the Court to conclude that the domestic courts gave no reasoned consideration to the above-mentioned, significant aspects of the criminal case directed against him. Those aspects could have had decisive implications for the determination of the applicant ’ s guilt ( compare Salov, cited above, § 92, Grădinar, cited above, § § 114 and 115; and Gheorghe, cited above, § 50 ). The resultant incongruity renders the applicant ’ s conviction for abuse of official authority far from being convincingly determined from the standpoint of an objective legal observer, such as the Court. What is at stake in the present case is not the applicant ’ s individual criminal responsibility or the establishment of the elements of the offence, matters which are exclusively within the domestic courts ’ domain. Rather, the situation, prompted by the absence of sufficient reasons in the decisions of the domestic courts, is that of incomprehension for the Court as to why the applicant ’ s acts – the collection of the fee on the basis of service agreements and the sub-legislative legal act – were described as criminal at all. In other words, the applicant cannot be said to have had the benefit of fair proceedings in so far as the criminal law – notably, the scope of the offence of abuse of official authority prosecuted under Article 332 of the Criminal Code – was inexplicably and thus arbitrarily construed to his detriment by the domestic courts. 109. There has accordingly been a violation of Article 6 § 1 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 18 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 5 110. Citing Article 18 of the Convention in conjunction with Article 5, the applicant complained that the criminal proceedings against him and his subsequent pre-trial detention had had ulterior, abusive motives. That provision provides as follows: Article 18 “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.” 111. The Government submitted that pre-trial detention had been imposed on the applicant strictly for the purposes of the criminal proceedings initiated against him for abuse of power, falling squarely within the exception envisaged by Article 5 § 1 of the Convention. Apart from purely law-enforcement considerations, there had been no other “hidden agenda” behind the relevant domestic authorities ’ actions when conducting the criminal proceedings in question. 112. The applicant replied by elaborating that the initiation of the criminal proceedings against him and the associated imposition of pre-trial detention had been a direct outcome of Mr Saakashvili ’ s clear and specific public threat that had been directed against him in December 2003, during the latter ’ s presidential election campaign (see paragraph 55 above). Indeed, as soon as Mr Saakashvili had been elected President of Georgia in January 2004, the threat of “jailing the applicant” had started to materialise. A. Admissibility 113. The Court emphasises that Article 18 of the Convention does not have an autonomous role. It can only be applied in conjunction with other Articles (see Gusinskiy v. Russia, no. 70276/01, § 75, ECHR 2004 ‑ IV). As it has previously held in its case-law, 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 individual measure may have a “hidden agenda”, and the presumption of good faith is rebuttable in theory. However, it is difficult to overcome this assumption in practice. Indeed, 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 which could 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 (see Khodorkovskiy v. Russia, no. 5829/04, § 255, 31 May 2011). When an allegation under Article 18 of the Convention is made, the Court applies a very exacting standard of proof. As a consequence, the Court has only been satisfied in a few cases that such a standard was met, such as Gusinskiy v. Russia ( cited above, § § 73–78); Cebotari v. Moldova (no. 35615/06, §§ 46 et seq., 13 November 2007); or Lutsenko v. Ukraine, ( no. 6492/11, § 108, 3 July 2012 ). For a contrasting example, see Sisojeva and Others v. Latvia (striking out) ( [GC], no. 60654/00, § 129, ECHR 2007 ‑ I). 114. The Court notes that when it comes to allegations of political or other ulterior motives in the context of a criminal prosecution, it is difficult to dissociate the pre-trial detention from the criminal proceedings within which such detention was ordered (see Lutsenko, cited above, § 108). In the instant case, the applicant ’ s only argument backing up his allegation of an abusive initiation of criminal proceedings against him was a reference to the public statements of presidential candidate Mr Saakashvili. The Court acknowledges the inappropriateness of the public statements in question, which can indeed be easily read as a threat to the applicant ( see paragraph 55 above). However, it is still unable, in the absence of any other additional evidence or arguments and applying an exacting standard of proof beyond a reasonable doubt, to establish that the initiation of the criminal case against the applicant was necessarily linked to the threat uttered by Mr Saakashvili, or that the latter in any other manner unduly influenced the unfolding of the criminal case after he became President. Indeed, the mere suspicion of a hidden abusive agenda, no matter how arguable that suspicion may be, cannot be sufficient for the Court to conclude that the whole legal machinery of the respondent State in the present case lacked independence and was ab initio misused under alleged pressure from the President, or that from beginning to end the prosecution and judicial authorities acted in bad faith and in blatant disregard of the Convention ( compare Khodorkovskiy, cited above, § 260). There was nothing in the present case to suggest that the prosecution or judicial authorities themselves showed, either through official or unofficial channels, the existence of any ulterior motives incompatible with the restrictions on the applicant ’ s liberty which are permitted under Article 5 of the Convention (contrast with Lutsenko, cited above, §§ 108-109; Gusinskiy, cited above, § § 73–78; and Tymoshenko v. Ukraine, no. 49872/11, § 299, 30 April 2013). 115. In the light of the foregoing, the Court concludes that by limiting the evidence to substantiate his joined complaint under Articles 5 and 18 of the Convention to the reference to the threat against him by the then candidate for the Presidency of the country, the applicant failed to discharge the requisite burden of proof. It cannot therefore be said that a prima facie case has been established that there were improper motives behind the applicant ’ s criminal prosecution and detention (see Khodorkovskiy, cited above, § 256). 116. Accordingly, 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. OTHER ALLEGED VIOLATIONS OF THE CONVENTION A. As regards the complaints directed against the domestic court decisions of 19 and 25 March and 14 June 2004 117. Citing Article 5 §§ 1 and 3 and Article 13 of the Convention, the applicant complained about the court decisions of 19 and 25 March and 14 June 2004 which imposed and extended his pre-trial detention. Notably, he stated that those decisions had been either unlawful and/or unreasonable as there had been no reasonable suspicion that he had committed a criminal offence, and that the impugned decisions had lacked sufficient and relevant reasons. 118. The Government contended that the applicants ’ complaint of a lack of a reasonable suspicion that he had committed an offence of abuse of official authority was manifestly ill-founded in so far as the items of evidence that had been collected at the early stage of the investigation had been more than enough for the domestic courts to confirm the need to keep the applicant in pre-trial detention. They also stated that the court decisions in question had been properly reasoned. 119. The Court observes that the applicant ’ s above-mentioned complaints under various provisions of Article 5 of the Convention aimed to challenge the lawfulness and reasonableness of the Krtsanisi-Mtatsminda District Court ’ s decision of 19 March 2004 and the Tbilisi Regional Court ’ s decisions of 25 March and 14 June 2004. 120. Out of those three court decisions, the first two – the decisions of 19 and 25 March 2004 – constituted two instances of the same habeas corpus procedure bearing on the initial period of the applicant ’ s pre-trial detention, with the latter decision, which was delivered by the appellate instance, being the final one (compare Saghinadze and Others v. Georgia, no. 18768/05, § 136, 27 May 2010 ). However, the present application was lodged on 12 March 2005, that is, more than six months after the final domestic decision of 25 March 2004 in the impugned habeas corpus procedure (see, for a similar conclusion in identical situations, Davtian v. Georgia (dec.), no. 73241/01, ECHR 6 September 2005; Ghvaladze v. Georgia (dec.), no. 42047/06, 11 September 2007; and Panjikidze and Others v. Georgia (dec.), 73241/01, 20 June 2006). 121. As regards the Tbilisi Regional Court ’ s decision of 14 June 2004, which extended the applicant ’ s initial pre-trial detention, no further appeal lay against that particular decision at the time, according to the Code of Criminal Procedure then in force. That decision was consequently final for the purposes of Article 35 § 1 of the Convention (compare with the identical situation in Aliev v. Georgia, no. 522/04, §§ 111 and 112, 13 January 2009). Consequently, the applicant ’ s challenge to that particular decision, lodged with the Court on 12 March 200 5, is equally belated (see also Panjikidze and Others, cited above). 122. It follows that this part of the application has been lodged out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention. B. As regards the complaint about the inability to challenge the unlawfulness of the applicant ’ s detention between 16 September 2004 and 16 March 2005 123. Additionally citing Article 5 § 4 of the Convention, the applicant complained that his complaint of 1 February 2005 of the unlawfulness of his continued detention, starting from 16 September 2004, was left without any consideration by the Tbilisi City Court on 16 March 2005, when the latter instance committed him for trial. 124. The parties ’ submitted the same arguments as those made with respect to the complaint under Article 5 § 1 of the Convention of the unlawfulness of the applicant ’ s detention between 16 September 2004 and 16 March 2005 (see paragraphs 90 and 9 1 above). 125. The Court notes that it has already carried out a comprehensive examination of the issue of the unlawfulness of the applicant ’ s detention between 16 September 2004 and 16 March 200 5. It reiterates its previous conclusions that a violation of Article 5 § 1 of the Convention was caused by lacunae in the well-established domestic law and practice at the material time, which was a structural problem that had no possible remedy. That being so, the complaint under Article 5 § 4 of the Convention, which is closely linked to the one already examined under Article 5 § 1, must be also declared admissible. However, in the light of its previous comprehensive findings on the merits of the matter, the Court considers that there is no need for an additional, separate examination of that same structural problem from the viewpoint of Article 5 § 4 (compare with Gigolashvili, cited above, §§ 14, 15 and 30-37). IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 126. 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 127. The applicant claimed GEL 142,600 ( some EUR 120,000 ) in respect of pecuniary damage. He explained that that amount would provide compensation for his monthly salary, which was GEL 2,300 (some EUR 1,100) at the material time and which he would have received if he had not been forced to resign as chairperson of the CAA after the institution of unfair criminal proceedings against him. 128. The applicant also claimed EUR 500,000 in respect of non ‑ pecuniary damage. He submitted that he had suffered severe stress, which had had a negative impact on his health, on account of the violations of his rights under Article 5 § 1 and Article 6 § 1 of the Convention. 129. The Government submitted that the claim for pecuniary damage was unfounded as there was no causal link between it and the alleged violations. The Government stated that the claim for non-pecuniary damage was excessive. 130. The Court does not discern any causal link between the violation it has found and the alleged pecuniary damage. Indeed, it cannot speculate on whether and for how long the applicant would have retained his job if there had been no criminal proceedings against him (compare also Georgian Labour Party v. Georgia, no. 9103/04, § 148-151, ECHR 2008 ). 131. On the other hand, the Court has no doubt that the applicant suffered distress and frustration on account of the violations of his rights under Article 5 § 1 and Article 6 § 1 of the Convention. The resulting non ‑ pecuniary damage would not be adequately compensated for by the mere finding of those breaches. Having regard to the particular circumstances of the case, the Court, making its assessment on an equitable basis, finds it appropriate to award the applicant EUR 20 ,000 under this head. B. Costs and expenses 132. The applicant claimed reimbursement of 28,200 and 11,760 United States dollars (USD) ( some EUR 25,415 and EUR 10,600) in respect of his legal representation in the proceedings before both the domestic courts and the Court respectively. In support of that claim, he submitted two billing requests dated 19 March 2008 and 7 May 2009 from his two representatives. Those documents broke down the legal services that had allegedly been provided into the number of hours worked and the lawyers ’ hourly rates. The first representative claimed that he had worked 188 hours at a rate of USD 150 (EUR 135) per hour, while the second claimed to have worked 98 hours at a rate of USD 120 (EUR 108) per hour. It was not clear from the documents that were submitted whether the amounts claimed by the two lawyers have actually been paid by the applicant. 133. The Government submitted that the costs claimed for legal representation, which the applicant had indisputably received from the two lawyers, were exaggerated. 134. The Court reiterates that to be entitled to an award for costs and expenses under Article 41 of the Convention, an applicant must have actually and necessarily incurred them. In this connection, it further reiterates that in the absence of any additional financial documents confirming that the relevant financial transaction has actually, truly occurred, mere billing requests from lawyers can hardly be taken as a proof that the legal costs and expenses claimed have “actually and necessarily” been incurred by the applicants themselves (see Georgian Labour Party, cited above, § 161 and 164; Dadiani and Machabeli v. Georgia, no. 8252/08, § 65, 12 June 2012; Tolstoy Miloslavsky v. the United Kingdom, 13 July 1995, § 77, Series A no. 316-B; and Malama v. Greece (just satisfaction), no. 43622/98, § 17, 18 April 2002 ). Furthermore, the Court is not bound by domestic legal fee scales and practices and is thus free not to endorse domestic lawyers ’ hourly rates which appear to be excessive (see Assanidze v. Georgia [ GC], no. 71503/01, § 206, ECHR 2004-II). 135. In the present case, regard being had to the lack of financial documents in its possession and the above criteria, the Court cannot accept the applicant ’ s claim in full. Rather, it finds it reasonable to award him a global sum of EUR 15 ,000 for the costs of his legal representation in the proceedings before the domestic courts and the Court. C. Default interest 136. 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. | Noting in particular that there had been no judicial decision authorising the applicant’s detention for six months, the Court held that there had been a violation of Article 5 § 1 of the Convention. However, it declared inadmissible, as being manifestly ill-founded, the applicant’s complaint under Article 18 in conjunction with Article 5, noting that it could not be established on the basis of his submissions that there had been improper motives behind his criminal prosecution and detention. Moreover, there was nothing to suggest that the prosecution or judicial authorities themselves had shown, either through official or unofficial channels, the existence of any ulterior motives. |
623 | Doctors and health workers | RELEVANT LEGAL FRAMEWORK AND PRACTICE relevant domestic lawProvisions of the Civil Code Provisions of the Civil Code Provisions of the Civil Code 34. Article 1173a of the Civil Code ( Allgemeines bürgerliches Gesetzbuch ) lays down rules on employment contracts. Paragraph 4 of that Article, in so far as relevant, provides: “(1) The employee must carry out the work entrusted to him diligently and must respect the employer’s legitimate interests loyally.” 35. Article 1173a § 53 of the Civil Code contains rules on the termination of employment contracts without notice for important reasons. In so far as relevant, it provides: “(1) For important reasons, both the employer and the employee may terminate an employment relationship at any time without notice; ... (2) An important reason exists, in particular, where, in the circumstances, a continuation of the employment relationship cannot be expected any longer in good faith from the party terminating the relationship.” Provision of the Physicians’ Act 36. The Physicians’ Act ( Ärztegesetz ) of 22 October 2003 lays down rules on physicians’ exercise of their profession. Article 20 of that Act, on notification duties, in so far as relevant, provides: “(1) Physicians are obliged to notify the Office of Public Health ( Amt für Gesundheit ) or directly the Public Health Service ( amtsärztlicher Dienst ) of findings made in the exercise of their profession which give rise to suspicions that a criminal offence resulted in a person’s death or serious bodily injury ...” relevant international law and practiceResolution 1729 (2010) of the Parliamentary Assembly of the Council of Europe on the protection of “whistle-blowers” Resolution 1729 (2010) of the Parliamentary Assembly of the Council of Europe on the protection of “whistle-blowers” Resolution 1729 (2010) of the Parliamentary Assembly of the Council of Europe on the protection of “whistle-blowers” 37. In its Resolution 1729 (2010) on the protection of “whistle-blowers”, adopted on 29 April 2010, the Parliamentary Assembly of the Council of Europe (PACE) stressed the importance of “whistle-blowing” – concerned individuals sounding an alarm in order to stop wrongdoings that place fellow human beings at risk – notably as an opportunity to strengthen accountability in both the public and private sectors (see point 1 of the Resolution). It invited all member States to review their legislation concerning the protection of whistle-blowers, keeping in mind the following guiding principles: “(...) 6.1.1. the definition of protected disclosures shall include all bona fide warnings against various types of unlawful acts, including all serious human rights violations which affect or threaten the life, health, liberty and any other legitimate interests of individuals as subjects of public administration or taxpayers, or as shareholders, employees or customers of private companies; 6.1.2. the legislation should therefore cover both public and private sector whistle ‑ blowers ..., and 6.1.3. it should codify relevant issues in the following areas of law: 6.1.3.1. employment law – in particular protection against unfair dismissals and other forms of employment-related retaliation; ... (...) 6.2.2. This legislation should protect anyone who, in good faith, makes use of existing internal whistle-blowing channels from any form of retaliation (unfair dismissal, harassment or any other punitive or discriminatory treatment). 6.2.3. Where internal channels either do not exist, have not functioned properly or could reasonably be expected not to function properly given the nature of the problem raised by the whistle-blower, external whistle-blowing, including through the media, should likewise be protected. 6.2.4. Any whistle-blower shall be considered as having acted in good faith provided he or she had reasonable grounds to believe that the information disclosed was true, even if it later turns out that this was not the case, and provided he or she did not pursue any unlawful or unethical objectives.” 38. The above guidelines were also referred to in the Parliamentary Assembly’s related Recommendation 1916 (2010) adopted on the same day, recommending, inter alia, that the Committee of Ministers draw up a set of guidelines for the protection of whistle-blowers (point 2.1). Recommendation CM/Rec(2014)7 of the Committee of Ministers of the Council of Europe on the protection of whistleblowers 39. On 30 April 2014, at the 1198 th meeting of the Ministers’ Deputies, the Committee of Ministers of the Council of Europe adopted Recommendation CM/Rec(2014)7 to member States on the protection of whistleblowers. The Committee of Ministers took note, in particular, of Resolution 1729 (2010) of the Parliamentary Assembly (see paragraph 37 above). It recommended that member States have in place a normative, institutional and judicial framework to protect individuals who, in the context of their work-based relationship, report or disclose information on threats or harm to the public interest. The appendix to the Recommendation sets out a series of principles to guide member States in the protection of such “whistleblowers”. 40. The Appendix to Recommendation CM/Rec(2014)7 provides, in particular: “ IV. Channels for reporting and disclosures (...) 13. Clear channels should be put in place for public interest reporting and disclosures and recourse to them should be facilitated through appropriate measures. 14. The channels for reporting and disclosures comprise: – reports within an organisation or enterprise (including to persons designated to receive reports in confidence); – reports to relevant public regulatory bodies, law enforcement agencies and supervisory bodies; – disclosures to the public, for example to a journalist or a member of parliament. The individual circumstances of each case will determine the most appropriate channel.” (...) VII. Protection against retaliation 21. Whistleblowers should be protected against retaliation of any form, whether directly or indirectly, by their employer and by persons working for or acting on behalf of the employer. Forms of such retaliation might include dismissal, suspension, demotion, loss of promotion opportunities, punitive transfers and reductions in or deductions of wages, harassment or other punitive or discriminatory treatment. 22. Protection should not be lost solely on the basis that the individual making the report or disclosure was mistaken as to its import or that the perceived threat to the public interest has not materialised, provided he or she had reasonable grounds to believe in its accuracy. (...) 24. Where an employer has put in place an internal reporting system, and the whistleblower has made a disclosure to the public without resorting to the system, this may be taken into consideration when deciding on the remedies or level of protection to afford to the whistleblower.” Further Council of Europe texts and other international instruments 41. The Parliamentary Assembly recalled its Resolution 1729 (2010) in subsequent texts on whistle-blowing, notably in Resolution 2060 (2015) and Recommendation 2073 (2015) on improving the protection of whistle ‑ blowers, both adopted by the Parliamentary Assembly on 23 June 2015, and in Resolution 2300 (2019) and Recommendation 2162 (2019) on improving the protection of whistle-blowers all over Europe, both adopted on 1 October 2019. 42. Further Council of Europe and other international instruments relevant in this field are referred to in Heinisch (cited above, §§ 38-40). THE LAW ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 43. The applicant complained that his dismissal without notice from the National Hospital on account of the fact that he had lodged a criminal complaint for active euthanasia had breached his right to freedom of expression as provided in Article 10 of the Convention, which, in so far as relevant, reads as follows: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. (...) 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” 44. The Government contested that view. Admissibility 45. The Court notes that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. MeritsWhether there was an interference Whether there was an interference Whether there was an interference 46. In the applicant’s submission, his dismissal without notice after he had raised suspicions externally that active euthanasia had been practised in the National Hospital constituted an interference with his right to freedom of expression under Article 10 of the Convention. The Government agreed that the dismissal had interfered with Article 10. 47. The Court reiterates that the protection of Article 10 extends to the workplace in general (see Heinisch v. Germany, no. 28274/08, § 44, ECHR 2011 (extracts) with further references; Matúz v. Hungary, no. 73571/10, § 26, 21 October 2014; and Langner v. Germany, no. 14464/11, § 39, 17 September 2015). In cases concerning freedom of expression of employees in State-owned or State-controlled companies or bodies, it recalled that Article 10 applied not only to employment relationships governed by public law, but also to those under private law. In addition, in certain cases, the State had a positive obligation to protect the right to freedom of expression even in the sphere of relations between individuals (see Fuentes Bobo v. Spain, no. 39293/98, § 38, 29 February 2000; Heinisch, cited above, § 44; and Matúz, cited above, § 26). 48. The Court notes that, on account of his statements regarding active euthanasia, the applicant was dismissed as a physician by the Liechtenstein National Hospital, a public law foundation; his employment relationship was governed by private law. The dismissal was subsequently endorsed, in particular, by the Liechtenstein Constitutional Court. The Court considers that in these circumstances, the measure in question constituted an interference by a State authority with the applicant’s right to freedom of expression as guaranteed by Article 10 § 1 of the Convention (compare also Fuentes Bobo, cited above, § 38; Heinisch, cited above, § 45; and Matúz, cited above, § 27, in all of which the dismissal of an employee in a State ‑ owned or controlled company whose employment relationship was governed by private law was addressed from the standpoint of an interference with the respective employee’s rights). Whether the interference was justified 49. Such interference will constitute a breach of Article 10 unless it is “prescribed by law”, pursues a legitimate aim under its paragraph 2 and is “necessary in a democratic society” for the achievement of such aim. (a) Interference “prescribed by law” 50. The Court observes that the applicant’s dismissal was based on Article 1173a § 53 of the Civil Code (see paragraphs 22 and 35 above), which authorises the termination of employment contracts without notice for important reasons. It was thus “prescribed by law” for the purposes of Article 10 § 2. This is indeed uncontested by the parties. (b) Legitimate aim 51. The Court notes that there was no dispute between the parties, and the Court agrees, that the interference pursued the legitimate aims of protecting the reputation and rights of others. It served to protect both the business reputation and interests of the employing National Hospital, including its interest in a professional work relationship based on mutual trust, and the reputation of the hospital’s chief physician who was concerned by the applicant’s allegations of euthanasia (compare also Steel and Morris v. the United Kingdom, no. 68416/01, § 94, ECHR 2005 ‑ II; Heinisch, cited above, § 49, and Langner, cited above, § 40). (c) Necessity of the interference in a democratic society (i) The parties’ submissions (α) The applicant 52. In the applicant’s submission, his dismissal without notice had been disproportionate and thus not justified. He stressed, first, that the information given by him to the Public Prosecutor’s Office regarding suspicions of active euthanasia on seriously ill and defenceless patients had undoubtedly been of considerable public interest. 53. The applicant further took the view that he had verified sufficiently that the information he disclosed was accurate and reliable. He contested, in particular, that it would clearly have resulted from the paper version of the medical files of the patients concerned that his suspicions had been unfounded. Both the hospital and the investigating judge considered it necessary to consult an external expert on the question of whether there had been active euthanasia and one of the experts had found that there had been an insufficient documentation of the treatment in these files. Moreover, his employer would have noticed research in the paper files. 54. The public interest in a democratic society to be informed of potential irregularities in the treatment in a public hospital outweighed the hospital’s business interests. The allegations contained in the criminal complaint lodged by him with the Public Prosecutor’s Office had been detrimental to the National Hospital, but it had been the hospital itself which had informed the media and public thereof. 55. Moreover, the applicant argued that there had not been any effective internal channels for making the disclosure. He had not been obliged to report his suspicions to his superior, Dr H., who was directly concerned by them, as this would have resulted in his immediate dismissal. The director of the hospital was part of the hospital’s management, together with Dr H. The hospital’s foundation board, for its part, had not been responsible for employees’ complaints of this kind. Likewise, he had not been obliged to turn to the hospital’s internal complaint mechanism CIRS as he had not been informed that at the relevant time, it was no longer Dr H. himself who was responsible for dealing with the complaints received. Therefore, the only way to ensure effective investigations in the present case had been to contact an external body, the Public Prosecutor’s Office, which had been independent of internal personal links and – just like the Parliamentary Control Committee – under a duty of confidentiality. Moreover, owing to the gravity of the suspicions, the fact that several patients had died shortly after the start of their morphine treatment and his position of deputy head of department potentially exposing him to criminal liability himself, it had been urgent to act. 56. The applicant stressed that he had been fully convinced that, having regard to the information contained in the electronic files which he considered to contain sufficient information, that there had been active euthanasia. He had therefore disclosed the information in good faith. 57. The applicant finally submitted that his dismissal without notice, being the harshest sanction under labour law, had also had the consequence that he had had to leave Liechtenstein with his family as he was to lose his residence permit as a result. Furthermore, he had had serious difficulties in finding new employment afterwards. This had a chilling effect on other hospital employees, discouraging them from disclosing irregularities. (β) The Government 58. In the Government’s view, the interference with the applicant’s right to freedom of expression had been justified as it had been necessary to protect the reputation and the rights of the employing hospital and of the accused chief physician. The Government accepted that there was in principle an interest of the hospital’s patients in the protection of their life and limb and also, generally, a public interest in information on whether the treatment in a public hospital was in accordance with the rules of the medical profession. However, it had to be taken into account in the present case that the applicant’s allegations had been frivolous and unfounded. 59. The Government further submitted that, as had been confirmed by the domestic courts, the applicant had failed to verify in the paper medical files of the patients concerned that the information he had disclosed on the basis of elements discovered in the electronic files, which he knew to be incomplete, was accurate and reliable. The applicant had been able to do so at any time and would then have realised that his suspicions of active euthanasia were unfounded. 60. The public interest in having the information in question revealed did not outweigh the interest of the applicant’s employer and of the chief physician concerned in the protection of their business and personal reputation, damaged as a result of the applicant’s serious and unjustified allegations. 61. Several effective alternative channels for making the disclosure, obtaining an internal clarification of the allegations rapidly and remedying the alleged wrongdoing, would have been available to the applicant. He could have informed the director or a member of the foundation board of the hospital. As had been demonstrated by the investigations done following the disclosure of the allegations by the applicant, there was nothing to indicate that they would not have investigated the allegations properly. Alternatively, the applicant could have complained anonymously via the Hospital’s Critical Incident Reporting System (CIRS). The filing of the criminal complaint against Dr H. had disregarded the internal official channel of reporting irregularities. 62. The fact that the applicant had neither verified his suspicions nor contacted an internal body first also showed that he had not acted in good faith. 63. The dismissal without notice of the applicant in these circumstances did not have a chilling effect on other employees of the hospital or in the health sector more generally. The employer’s immediate investigations following the disclosure of the information by the applicant rather encouraged these persons to contact internal bodies regarding suspicions of irregularities first. (ii) The Court’s assessment (α) Relevant principles 64. The general principles for the assessment of whether an interference with the right to freedom of expression was “necessary in a democratic society” have been set out in numerous judgments (see, inter alia, Steel and Morris, cited above, § 87; Guja v. Moldova [GC], no. 14277/04, § 69, ECHR 2008; and Heinisch, cited above, § 62). In essence, the Court’s task is not to take the place of the competent national authorities but rather to review under Article 10 the decisions they delivered pursuant to their power of appreciation. It has to determine whether the interference complained of was ‘proportionate to the legitimate aim pursued’ and whether the reasons adduced by the national authorities to justify it are ‘relevant and sufficient’. In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they relied on an acceptable assessment of the relevant facts. 65. As regards the application of Article 10 of the Convention to the workplace, the Court has held that the signalling by an employee in the public sector of illegal conduct or wrongdoing in the workplace should, in certain circumstances, enjoy protection. This may be called for in particular where the employee concerned is the only person, or part of a small category of persons, aware of what is happening at work and is thus best placed to act in the public interest by alerting the employer or the public at large (see Guja, cited above, § 72; Marchenko v. Ukraine, no. 4063/04, § 46, 19 February 2009; and Langner, cited above, § 44). The Court is at the same time mindful that employees owe to their employer a duty of loyalty, reserve and discretion (see, for example, Guja, cited above, § 70; Marchenko, cited above, § 45; Heinisch, cited above, § 64; and Matúz, cited above, § 32). 66. When assessing, in this context, the proportionality of the interference with an employee’s right to freedom of expression in relation to the legitimate aim pursued, the Court, in its case-law (see, in particular, Guja, cited above, §§ 73-78; Heinisch, cited above, §§ 64-70; Bucur and Toma v. Romania, no. 40238/02, § 93, 8 January 2013; and Matúz, cited above, § 34), has had regard to the following six criteria. 67. In the first place, particular attention shall be paid to the public interest involved in the disclosed information. There is little scope under Article 10 § 2 of the Convention for restrictions on debate on questions of public interest (see, among other authorities, Sürek v. Turkey (no. 1) [GC], no. 26682/95, § 61, ECHR 1999 ‑ IV; and Stoll v. Switzerland [GC], no. 69698/01, § 106, ECHR 2007 ‑ V). 68. The second factor relevant in this balancing exercise is the authenticity of the information disclosed. The Court reiterates in this context that freedom of expression carries with it duties and responsibilities and any person who chooses to disclose information must carefully verify, to the extent permitted by the circumstances, that it is accurate and reliable – in particular if the person concerned owes a duty of discretion and loyalty to his or her employer and there is question of attacking the reputation of private individuals (see Handyside v. the United Kingdom, 7 December 1976, § 49, Series A no. 24; and Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 65, ECHR 1999 ‑ III ). 69. Third, on the other side of the scales, the Court must weigh the damage, if any, suffered by the employer as a result of the disclosure in question and assess whether such damage outweighed the interest of the public in having the information revealed (see Guja, cited above, § 76). 70. Fourth, the Court needs to determine whether, in the light of the duty of discretion owed by an employee towards his or her employer, the information was made public as a last resort, following disclosure to a superior or other competent body (see Matúz, cited above, § 34) unless it is clearly impracticable to disclose the information to a superior or other competent authority (see Marchenko, cited above, § 46). The Court must take into account in this context whether any other effective means of remedying the wrongdoing which the employee intended to uncover were available to him or her (see Marchenko, cited above, § 46). 71. Fifth, the motive behind the actions of the reporting employee is another determining factor in deciding whether a particular disclosure should be protected or not. For instance, an act motivated by a personal grievance or personal antagonism or the expectation of personal advantage, including pecuniary gain, would not justify a particularly strong level of protection (see Kudeshkina v. Russia, no. 29492/05, § 95, 26 February 2009). It is important to establish that, in making the disclosure, the individual acted in good faith and in the belief that the information was true, that it was in the public interest to disclose it and that no other, more discreet means of remedying the wrongdoing was available to him or her (see Guja, cited above, § 77). 72. Lastly, in connection with the review of the proportionality of the interference in relation to the legitimate aim pursued, a careful analysis of the severity of the sanction, in particular the penalty imposed on the employee and its consequences, is required (see Fuentes Bobo, cited above, § 49). (β) Application of these principles to the present case ‒ Public interest in the disclosed information 73. In determining whether, in the light of the above principles, the dismissal without notice of the applicant was “necessary in a democratic society” in the circumstances of the present case, the Court notes at the outset that the Constitutional Court, in its assessment of the applicant’s complaint, had regard to the above-mentioned criteria developed in the Court’s case-law (see paragraphs 30-32 above). In reviewing, under Article 10, the domestic court’s decision, the Court observes that the Constitutional Court recognised that there was considerable public interest in medical treatment in a public hospital which was in accordance with the state of the art. The Court considers that the information disclosed by the applicant, namely the suspicion that a chief physician currently working at the Liechtenstein National Hospital had repeatedly practised active euthanasia, concerned suspicions of the commission of serious offences, namely the killing of several vulnerable and defenceless patients, in a public hospital, as well as a risk of repetition of such offences. It agrees that this information was as such of considerable public interest. ‒ Authenticity / veracity of the information disclosed 74. As regards the authenticity, in the sense of veracity, of the information disclosed by the applicant, the Court cannot but note, however, that the Supreme Court and the Constitutional Court, in particular, found that the suspicions of active euthanasia which the applicant had reported to the Public Prosecutor’s Office had been clearly unfounded. The Court observes that the assessment that no active euthanasia had been practised was shared, in particular, by the two external medical experts, N. and L., who had been asked by the Liechtenstein National Hospital and the Public Prosecutor’s Office respectively to examine this question on the basis of the medical paper files (see paragraphs 15 and 18 above). While the Court does not overlook that the applicant contested that his suspicions were clearly unfounded, it cannot but note that he did not consult all patients’ paper files. Despite the fact that expert L. saw some room for improvement in the documentation in these files, both external experts concluded without any reservations that the patients in question had received necessary and justified palliative treatment. The domestic courts, in finding on the basis of these reports that the information disclosed by the applicant was clearly wrong and thus did not have a sufficient factual basis, therefore relied on an acceptable assessment of the relevant facts. 75. The Court would stress that information disclosed by whistle ‑ blowers may also be covered by the right to freedom of expression under certain circumstances where the information in question subsequently proved wrong or could not be proven correct. It recalls, in particular, that it cannot reasonably be expected of a person having lodged a criminal complaint in good faith to anticipate whether the investigations will lead to an indictment or will be discontinued (see Heinisch, cited above, § 80). However, in these circumstances the person concerned must have complied with the duty to carefully verify, to the extent permitted by the circumstances, that the information is accurate and reliable (compare Guja, cited above, § 75, and Heinisch, cited above, § 67). 76. The Court observes that the guiding principles developed by the PACE in its Resolution 1729 (2010) on the protection of “whistle-blowers” reflect the same approach, stating that “[a]ny whistle-blower shall be considered as having acted in good faith provided he or she had reasonable grounds to believe that the information disclosed was true, even if it later turns out that this was not the case ...” (see point 6.2.4., cited in paragraph 37 above, and compare, mutatis mutandis, Heinisch, ibid., and Bucur and Toma, cited above, § 107). Likewise, the guiding principles in the Appendix to Recommendation CM/Rec(2014)7 on the protection of whistle-blowers provide that “[p]rotection should not be lost solely on the basis that the individual making the report or disclosure was mistaken as to its import or that the perceived threat to the public interest has not materialised, provided he or she had reasonable grounds to believe in its accuracy” (principle no. 22, cited in paragraph 40 above). 77. In the present case, the applicant, as stressed also by the Supreme Court and the Constitutional Court (see paragraphs 26 and 31 above), based his allegations of active euthanasia only on the information available in the electronic medical files which, as he had known as a doctor practising in the National Hospital, did not contain complete information on the patients’ state of health. Comprehensive information in this respect was only available in the paper medical files which the applicant, however, did not consult. As the Supreme Court and the Constitutional Court determined, had he done so, he would have recognised immediately that his suspicions were clearly unfounded and he had therefore acted irresponsibly (see paragraphs 26 and 31 above). By reason of the duties and responsibilities inherent in the exercise of the freedom of expression (see paragraph 68 above), the safeguard afforded by Article 10 to whistle-blowers is subject to the proviso that they acted in order to disclose information that is accurate and reliable and in accordance with professional ethics (compare, mutatis mutandis, Medžlis Islamske Zajednice Brčko and Others v. Bosnia and Herzegovina [GC], no. 17224/11, §§ 87 and 109, 27 June 2017). This applies, in particular, if the person concerned, like the applicant in the present case as deputy chief physician and thus a high-ranking and highly qualified employee, owes a duty of loyalty and discretion to his or her employer. 78. The Court does not lose sight of the fact that the applicant, in the light of the interpretation he had made of the information in the electronic files, namely that active euthanasia had repeatedly been practised in the hospital and might continue being practised, must have concluded that it was very urgent to act in order to stop that practice. However, given that, as had been found by the domestic courts (see, in particular, paragraph 26 above), the applicant as a deputy chief physician, could have consulted the paper files at any moment, the Court considers that this verification would not have been very time-consuming. Having regard to the gravity of an allegation of active euthanasia the Court therefore agrees with the domestic courts’ finding that the applicant was obliged to, but failed to proceed to such a verification (compare also, mutatis mutandis, Medžlis Islamske Zajednice Brčko and Others, cited above, § 115). He did not, therefore, carefully verify, to the extent permitted by the circumstances, that the information he disclosed was accurate and reliable. ‒ Detriment to the employer 79. As for the damage suffered notably by the employer as a result of the disclosure in question, the Court considers that the allegation of active euthanasia having been practised at a State-run hospital was certainly prejudicial to the employing hospital’s business reputation and interests and to the public confidence in the provision of medical treatment in accordance with the state of the art in the only public hospital in Liechtenstein. It was further prejudicial to the personal and professional reputation of another staff member of that hospital, namely the chief physician concerned by the allegations. The Court observes in this context that the applicant initially did not voice his allegations in public, but disclosed them by lodging a criminal complaint, in particular, to the Public Prosecutor’s Office, which was under a duty of confidentiality (see paragraph 24 above). However, following the ensuing investigations including the seizure of the medical files at the National Hospital, the applicant’s allegations became known to a larger public and were – quite predictably, given the gravity of the allegations – repeatedly discussed in the Liechtenstein media which risked increasing their prejudicial effect. 80. As shown above, there was as such a public interest in the revelation of information on suspicions of repeatedly practised active euthanasia in a public hospital. However, in the present case, in which the well ‑ foundedness of that suspicion had not been sufficiently verified prior to its disclosure, the public interest in receiving such information cannot outweigh the employer’s and chief physician’s interest in the protection of their reputation. ‒ Existence of alternative channels for making the disclosure 81. As for the question whether the information in question was revealed to an external body as a last resort, the Court observes that both the Supreme Court and the Constitutional Court left open the question whether the applicant, prior to raising his suspicions externally, should have attempted to raise them internally (see paragraph 32 above). The Court, having regard to the circumstances of the case, the gravity of the acts at issue and its case-law (compare, in particular, Bucur and Toma, cited above, § 97), finds that the applicant could not be expected to first raise his suspicions with his superior Dr H., who was directly concerned by them. As for the internal reporting channel, the CIRS, the Court notes that it has not been shown that it had been communicated within the hospital that anonymous reports of irregularities via that system were no longer handled by Dr H. alone (see paragraph 11 above). Therefore, the applicant could legitimately proceed on the assumption that redress could not be obtained in this way either. 82. It remains to be determined whether the applicant should have raised his suspicions either with a member of the hospital’s foundation board or with the hospital’s director prior to lodging a criminal complaint. The Court notes that, in view of the normal professional relationship between the applicant and these bodies and the availability of medical expertise within the hospital, these instances appear to be effective alternative channels for disclosure, with the potential to remedy any irregularities rapidly. However, the Court does not overlook either that the offences which the applicant suspected his direct superior of were serious and that there was a possibility that he might himself be held liable in case of a failure to report such offences. It further takes note of the fact that the guiding principles in the Appendix to the Committee of Ministers’ Recommendation CM/Rec(2014)7 on the protection of whistle-blowers do not establish an order of priority between the different channels of reporting and disclosure, stating that the individual circumstances of each case will determine the most appropriate channel (see principle no. 14, at paragraph 40 above). The Court considers, however, that in the circumstances of the case it can leave open the question whether the applicant was obliged to raise his suspicions with the said internal instances of the hospital. ‒ Applicant’s motives for the disclosure 83. As to the applicant’s motive for reporting his suspicions of active euthanasia, the Court observes that the domestic courts did not find that the applicant had acted out of personal motives (see paragraph 30 above). Having regard to the material before it, the Court does not have reasons to doubt that the applicant, in making the disclosure, acted in the belief that the information was true and that it was in the public interest to disclose it. ‒ Severity of the sanction 84. Finally, as regards the severity of the sanction imposed on the applicant, the Court observes that the applicant’s dismissal without notice constituted the heaviest sanction possible under labour law (compare also Guja, cited above, § 95; Heinisch, cited above, § 91; and Langner, cited above, § 53). This sanction not only had negative repercussions on his professional career, it also led to the applicant and his family having to leave Liechtenstein as he was to lose his residence permit as a foreign national without employment. Having regard also to the media coverage regarding the suspicions of euthanasia in Liechtenstein, the sanction therefore must have had a certain chilling effect on other employees in the hospital and the health sector in general – at least as regards the direct disclosure to external bodies of suspicions of irregularities. (iii) Conclusion 85. Having regard to the foregoing considerations, the Court concludes that the applicant did not act with improper motives. However, he raised suspicions of a serious offence with an external body without having carefully verified that the information he disclosed, which was as such of public interest, was accurate and reliable. The Court further observes that the domestic courts, having regard to the criteria developed in the Court’s case-law, adduced relevant and sufficient reasons for their finding that, in these circumstances, the applicant’s dismissal without notice, having regard to the prejudicial effect of the disclosure on the employer’s and the other staff member’s reputation, was justified. They struck a fair balance between the need to protect the employer’s and the staff member’s reputation and rights on the one hand and the need to protect the applicant’s right to freedom of expression on the other. 86. The Court therefore concludes that the interference with the applicant’s right to freedom of expression, in particular his right to impart information, was proportionate to the legitimate aim pursued and thus necessary in a democratic society. 87. There has accordingly been no violation of Article 10 of the Convention. | The Court held that there had been no violation of Article 10 (freedom of expression) of the Convention, finding that the interference with the applicant’s rights had been proportionate. While noting that he had not acted with improper motives, the Court nevertheless found that the applicant had been negligent in not verifying information. In the present case, it considered that the applicant’s dismissal had been justified, especially given the effect on the hospital’s and another staff member’s reputations. |
754 | Protection of property (Article 1 of Protocol No. 1 to the Convention) | II. RELEVANT DOMESTIC LAW AND PRACTICE 38. The Flemish town and country planning decree of 18 May 1999 (which came into force on 1 October 1999) provides as follows. “ Article 107 The Flemish Government shall determine the conditions that must be met by an application in order to be considered complete. Where the application concerns works, operations or modifications as referred to in Article 158, the contractor shall mention specifically which works, operations or modifications have been carried out, made or continued without permission and for which of these works, operations or modifications planning permission is being sought. The Flemish Government may allow joint applications for permission to be made to the local authority under this decree and under the decree of 28 June 1985 concerning environmental permits. The Flemish Government may determine the conditions and procedures for compiling the application file. ... CHAPTER I. – Criminal provisions Section 1. – Penalties Article 146 Anyone who 1. carries out, continues or maintains the operations, works or modifications defined in Articles 99 and 101, either without advance permission or in contravention of that permission, or after the expiry, cancellation or lapse of the term of that permission, or where that permission has been suspended ... shall be liable, on conviction, to a prison sentence of between eight days and five years and a fine of between ( EUR 26) and ( EUR 400, 000) or either of these penalties. Article 147 All the provisions of Book 1 of the Criminal Code, including Chapter VII and Article 85, shall apply to the offences referred to in Article 146. Section 2. – Inspection Article 148 Without prejudice to the powers of senior police officers and their assistants [ agents et officiers de police judiciaire ], the planning inspectors, the other civil servants appointed by the Flemish Government, and the civil servants of the province and the municipalities of the province appointed by the governor thereof shall be authorised to detect the offences defined in this part and to place them on record. The reports establishing the offences described in this part shall remain valid until any evidence to the contrary is produced. The senior police officers, their assistants and the civil servants referred to in the first paragraph shall have access to the work site and to the buildings in order to carry out any inspections and draw up any observations as may be necessary. ... Section 3. – Remedial measures Article 149 § 1. In addition to the penalty, and upon the request of the planning inspector or the municipal council of the municipality on whose territory the works, operations or modifications referred to in Article 146 have been carried out, the court shall order that the site be restored to its original condition or that the illegal use cease and/or the execution of any construction or adaptation works and/or payment of a fine equal to the capital gain accrued on the property subsequent to the offence. The capital gain can no longer be claimed in the following cases: 1. in the event of repetition of an offence that has been made punishable by this decree; 2. in the event of failure to comply with a cessation order; 3. where the offence causes unacceptable planning-related nuisance for neighbours; 4. where the offence constitutes a serious breach of the essential planning requirements for intended use under a spatial development or land-use plan. The Flemish Government may determine other conditions and procedures in cases in which the capital gain cannot be claimed. Where the action brought by the planning inspector and that brought by the municipal council do not coincide, the action brought by the first - mentioned shall take priority. For execution of the remedial measures, the court shall set a time - limit of a maximum of one year and, upon expiry thereof, at the request of the planning inspector or the municipal council, a fine per day ’ s delay in implementing the remedial measure. § 2. An action for remedial measures shall be lodged with the prosecutor ’ s office by ordinary letter, on behalf of the Flemish region or the municipal council, by the planning inspectors and officials of the municipal council. § 3. Where the action involves an application for construction or adaptation works and/or payment of an amount equal to the capital gain, explicit reasons must be given for that action in terms of town and country planning, compatibility with the immediate environment and the seriousness of the offence. § 4. The application shall mention at least the relevant requirements and give a description of the situation prior to the offence. A recent extract from the planning register shall accompany the application. The Flemish Government may establish additional conditions which must be met by the letter referred to in § 2, first sub-paragraph, and the file accompanying that letter. § 5. The court shall determine the amount of the capital gain. Where the offender is ordered to pay an amount equal to the capital gain, he or she may validly discharge his or her obligations by restoring the site to its original condition or by ceasing the adverse use in the year following the judgment. The Flemish Government shall determine the method for calculating the amount to be claimed and payment of the capital gain. Article 150 Where an action for remedial measures brought by the civil party on the one hand and the planning inspector or the municipal council on the other do not coincide, the court shall determine the necessary remedial measure that it deems appropriate. Article 151 The planning inspector and the municipal council may also, before the court of first instance, sitting as a civil court, in the jurisdiction in which the works, operations or modifications referred to in Article 146 are wholly or partially carried out, apply for remedial measures as defined in Article 149 § 1. The provisions of Article 149 § 1, second sub- paragraph, §§ 3, 4 and 5 and Article 150 shall also apply. Section 4. – Execution of the judgment Article 152 The offender shall immediately inform the planning inspector and the municipal council, by registered mail or by delivery against receipt, when the reparation measure imposed has been voluntarily carried out. Following a site inspection, the planning inspector shall immediately draw up a report of his findings. The planning inspector shall send a copy of the report of his findings to the municipal authority and to the offender. Unless there is any evidence to the contrary, the report of findings alone shall constitute evidence that the remedial measure has been performed and of the date thereof. Article 153 Where the site is not restored to its original condition, adverse use is not ceased or construction or adaptation works are not carried out within the time - limit set by the court, the decision of the court referred to in Articles 149 and 151 shall order that the planning inspector, the municipal council and, as the case may be, the civil party may proceed to enforce the judgment themselves. The authority or individual enforcing the judgment or order shall be authorised to sell, transport and remove the materials and objects generated by the restoration of the site to its original condition or the cessation of adverse use. Any offender still in default shall be bound to indemnify all enforcement costs, less the proceeds from the sale of the materials and items, upon presentation of a statement, issued by the authority referred to in sub - paragraph two, or budgeted and declared enforceable by the civil court judge dealing with attachment of property. ... Article 158 Where the offence referred to in Article 146 does not consist of the carrying out of works or the conduct or continuation of operations or modifications that are in contravention of spatial development or land - use plans or execution of the rules laid down by virtue of this decree or the requirements of a permit to divide into plots, and where either planning permission is subsequently obtained with a view to such works, operations and modifications, or the site is restored to its original condition and the adverse use is terminated, the planning inspector may reach a settlement with the offender provided that he has paid the amount agreed in settlement within the time - limit set by the planning inspector. The planning inspector shall not propose a settlement until he has received the prior written agreement of the public prosecutor. Payment of the amount agreed in settlement brings an end to the criminal proceedings and the right of the authorities to claim compensation. ” 39. By a judgment of 3 June 2005, the Court of Cassation reiterated in the following terms the scope of the powers of control of the courts and tribunals where an application is brought before them based on Article 149 of the decree of 18 May 1999: “ Article 149 § 1, first sub - paragraph, as amended, of the decree must be read in the context of Article 159 of the Constitution, according to which the courts and tribunals do not apply administrative measures which are not in conformity with the law; ... According to that last provision, it is a matter for the court to assess the formal and substantive legality of the application referred to in Article 149 as amended and to ascertain whether it is in conformity with the law or whether it is founded on an abuse or misuse of powers; ... More particularly, the court must ascertain whether the authority ’ s decision to seek a particular remedial measure has been taken for the sole purpose of proper town and country planning; ... If it appears that the application is founded on grounds that are unrelated to town and country planning or a clearly unreasonable view of proper town and country planning, the court shall not allow the application; ... It is not a matter for the court, however, to assess the appropriateness of the measure sought; the court must allow the remedial measure sought if it is in conformity with the law. ” 40. On 13 September 2005 the Court of Cassation held in another judgment that “ the court must order the site to be restored to its original condition whenever that proves necessary for the purposes of eradicating the consequences of the offence ”. 41. Article 12 of the royal decree of 28 December 1972 concerning the design and implementation of draft regional plans and regional plans defines forested areas as follows: “ Forested areas are areas that are wooded or that are to be planted for the purposes of commercial exploitation. They may incorporate buildings that are necessary for such exploitation and for monitoring the timber, as well as hunting and fishing shelters, provided that the latter cannot be used as a residence, even on a temporary basis. Reconversion into an agricultural zone shall be allowed in accordance with the provisions of Article 35 of the Rural Code relating to the demarcation of agricultural and forested zones. ” 42. Section 65 of the Town and Country Planning Act of 2 9 March 1962 provides : “ 1. In addition to the penalty, the court shall order, at the request of the delegated civil servant or the municipal council, but with their mutual agreement in the cases referred to in ( b ) and ( c ), ( a) either restoration of the site to its original condition (b ) or landscaping or development works ( c) or payment of an amount representing the capital gain accrued on the property subsequent to the offence; ...” 43. By a judgment of 26 November 2003 ( no. 154/2003), the Administrative Jurisdiction and Procedure Court ( Cour d ’ arbitrage ) considered that, although of a civil nature, a remedial measure is a matter of public policy and is, in certain respects, an ancillary penalty which cannot be dissociated from the criminal penalty; in fact, this measure is an extension of the criminal penalty because it is intended – beyond the criminal conviction – to prevent the continuation of a situation perpetuating the offence. The case - law of the Court of Cassation conflicts with that (judgments of 8 September 1998 and 16 January 2003). 44. The Law of 17 April 1878 contains the preliminary part of the Code of Criminal Procedure. A new section 21 ter, which came into force on 12 December 2000, is worded as follows: “ If the length of the criminal proceedings should exceed a reasonable time, the judge may make a simple finding of guilt or impose a penalty lower than the minimum penalty provided for by law. If the judge makes a simple finding of guilt, the guilty party shall be ordered to pay costs and, as appropriate, to perform restitution. A special confiscation order shall be made. ” 45. In relation to the prosecution of town and country planning offences, the Government have produced statistics covering the years 1998-2003. For the Flemish region alone, these statistics establish that, on average, 2, 580 reports are drawn up every year and that 251 judgments ordering restoration were issued in 1998 ( out of 453 decisions), 141 in 1999 ( out of 329), 183 in 2000 ( out of 328), 105 in 2001 ( out of 193), 76 in 2002 ( out of 129) and 131 in 2003 ( out of 264). THE LAW I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 46. The applicant complained that the reasonable time had been exceeded. She pointed out that even though the house had been built in 1967 at the latest, that she had inherited it in 1993 and that the report recording the offence had been drawn up in 1994, she had not been convicted until 200 2. She considered that, once the Court of Appeal had found that the reasonable period had been exceeded in the instant case, it should have concluded that the criminal proceedings were time-barred. She submitted further that the order to restore the site to its original condition and to pay the costs of the proceedings was inconsistent with a mere finding of guilt against her. She relied on Article 6 § 1 of the Convention, the relevant parts of which read as follows : “ In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing within a reasonable time, by [ a ] ... tribunal ... ” 47. According to the Government, the restoration of the site to its original condition did not constitute a penalty but a measure to remedy the damage done to the environment, since it could be ordered both by the criminal and the civil courts in accordance with Article 151 of the decree of 18 May 1999. It did not involve penalising the owner of the site maintained, but rather preventing the continuation of an offence. The measure was fully justified in order to protect the public interest and to remedy environmental damage. The strictly remedial scope of an order to demolish an unlawful building had moreover been confirmed by the case - law of the Court itself, notably in Saliba v. Malta ( no. 4521/02, 8 November 2005). It was a civil measure, not a criminal penalty. 48. The Government contended that a mere finding of guilt without any penalty constituted, having regard to the Court ’ s case-law, an acceptable consequence of the finding that the reasonable time had been exceeded. Reparation of loss incurred as a result of the time - limit having been exceeded could not preclude reparation of the loss arising, for the general interest, out of acts constituting an offence. 49. The Government considered that the length of the proceedings had no bearing on the lawfulness of a building under the town and country planning requirements laid down in the general interest. The applicant had been prosecuted for maintaining an unlawful building, which constituted a continuing offence not subject to limitation. For such time as the offence continued without the building being demolished, the remedial measure could not be excluded by way of compensation for loss incurred as a result of the reasonable time having been exceeded. It should also be pointed out that even if the domestic court had, by way of a penalty for exceeding the reasonable time, declared the proceedings inadmissible, there would have been nothing to prevent the planning inspector or the municipal council from applying for demolition in the civil courts. 50. The applicant challenged that argument. She claimed that the Belgian courts had acknowledged that the reasonable time had been exceeded but that this overrunning had not been sufficiently compensated by that finding in so far as she had been ordered to demolish her holiday home on pain of a fine. She explained that, being in no doubt as to the lawfulness of the building, she had incurred considerable renovation costs and had been obliged to pay substantial sums of money to ensure that the site was restored to its original condition. Having regard to the criminal nature of the principal offence and to the seriousness of the measure imposed for the offender, the impugned measure did in fact constitute a penalty. The applicant considered furthermore that the judgment was contradictory in so far as it made a mere finding of guilt as regards the offence of maintaining an unlawful building, yet also ordered her to restore the site to its original condition. The measure was not a remedial one because in this particular case no damage had been done to the landscape since the house was not visible and the authorities had tolerated the building for more than thirty years. 51. The Court considers it necessary in the first place to single out the following facts for particular consideration. 52. As regards the offence of maintaining a building erected without planning permission, the Court of Appeal, bearing in mind that the reasonable time under Article 6 of the Convention had been exceeded, made a mere finding of guilt against the applicant under Article 21 ter of the Code of Criminal Procedure. According to that provision, the court may, if the reasonable time has been exceeded, make a simple finding of guilt or impose a penalty lower than the minimum penalty provided for by law. 53. In addition, the Court of Appeal ordered the applicant to restore the site to its former condition and accordingly to demolish the impugned building. 54. This “ remedial measure ”, consisting of restoring the site to its original condition, is provided for in Article 149 of the decree of 18 May 1999 ( see paragraph 38 above), which stipulates that in addition to the “ penalty ” the criminal court shall order the site to be restored to its original condition upon an application by the planning inspector. The court is not empowered to take the initiative in this regard (it cannot therefore order the measure of its own motion ); it can review the lawfulness of the measure but not the appropriateness. Furthermore, the measure may only be ordered as a result of a contravention of planning law and is therefore dependent on the outcome of the criminal proceedings. 55. In the instant case, although the Court of Appeal had held that the reasonable time within the meaning of Article 6 of the Convention had been exceeded, it drew no conclusion from that as regards the remedial measure for which the competent planning inspector had applied to the public prosecutor in June 1995, and ordered the demolition of the house in issue. 56. The Government alleged that there was no provision in Article 21 ter of the Code of Criminal Procedure for the “ remedial measure ”, which was of a strictly civil nature and was not dependent upon the outcome of criminal proceedings in the event that the reasonable time was exceeded. 57. The Court notes that, even assuming that the measure falls under the civil head of Article 6, it is nonetheless subject to the reasonable - time requirement. It notes further that the classification of the remedial measure in domestic law is the subject of conflicting legal theory and case - law (see, in particular, the judgments of the Court of Cassation of 8 September 1998 and 16 January 2003, according to which it is not a penalty but a civil measure, and the ruling of the Administrative Jurisdiction and Procedure Court of 26 November 2003, according to which, although civil, the measure cannot be dissociated from the criminal proceedings – paragraph 43 above). In the present case the planning inspector ’ s application arose out of criminal proceedings brought against and having very serious consequences for the applicant. 58. In its decision on admissibility of 11 May 2006, the Court concluded, having regard to the fact that the reasonable time had been exceeded, that the fact that the Court of Appeal had merely pronounced a finding of guilt against the applicant did not deprive the applicant of her status as victim because she had simultaneously been ordered to restore the site to its original condition. 59. The Court reiterates that the concept of a “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 degree of severity of the penalty that the person concerned risked incurring (see, among other authorities, A.P., M.P. and T.P. v. Switzerland, 29 August 1997, § 39, Reports of Judgments and Decisions 1997-V). 60. Having regard to the foregoing considerations, the Court considers that the demolition measure can be regarded as a “ penalty ” for the purposes of the Convention. 61. Although the length of the proceedings on the merits (a little over three and a half years for three levels of jurisdiction between May 1999 and January 2003) does not in itself appear to be unreasonable, the police report recording the unlawful nature of the building dates from February 1994. It is on the basis of that finding that the continuing offence consisting of maintaining a building erected without planning permission was established and the applicant was subject to criminal proceedings and thus charged within the meaning of the case-law. Therefore, the reasonable time commenced as of the date of that report ( see Hozee v. the Netherlands, 22 May 1998, § 43, Reports 1998-III, and Włoch v. Poland, no. 27785/95, § 144, ECHR 2000-XI). Considered as a whole, the proceedings therefore lasted between eight and nine years for three levels of jurisdiction, including more than five years at the investigation stage, which, however, was not particularly complex. 62. Furthermore, the Court sees no evidence to show that at any stage of the proceedings the applicant hindered the smooth running of the investigation. In these circumstances, the Court cannot deem a period of more than five years merely for the investigation phase to be reasonable. 63. There has therefore been a violation of Article 6 § 1 of the Convention. ... III. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 71. The applicant complained of a violation of her property rights guaranteed by 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. ” 72. According to the Government, the local authorities do not inspect all inheritance deeds or monitor all tax returns or requests to be connected to the water - supply system for the purposes of checking whether the buildings in question had planning permission. Moreover, to make buildings erected without planning permission immune from taxation would be tantamount to encouraging this kind of offence. The water - supply companies were not empowered to check the lawfulness of the buildings that they connected to their network. Furthermore, the registration information provided by the applicant dated back to 1993-94, the time when the first record of offence was drawn up. The building ban covering the applicant ’ s land in no way constituted expropriation since she retained her full property rights. In addition, the States Parties were able to control the use of property for reasons of town and country planning affecting the general interest, and equip themselves with effective tools to ensure the pertinence of any measures thus adopted. Such tools included demolition and the restoration to their original condition of sites on which buildings had been erected in breach of legislation requiring planning permission. It had to be borne in mind that the applicant ’ s house could not be rendered compliant as it had been built in a forested area in which no building was allowed. Admittedly, the applicant had received no compensation in this particular case but it was in full knowledge of the facts that her father had built the house in an area in which no building was permitted. Unlike the case of Öneryıldız v. Turkey ([GC], no. 48939/99, ECHR 2004 -XII ), there was no uncertainty in Belgian law as to the legal status of the house in issue. Furthermore, the Belgian State could not be accused of negligence. In the instant case, the applicant ’ s situation had not been the subject of any disclosure that could have led to any assumption of tolerance on the part of the authorities. 73. The Government indicated that the aim of the interference arising out of a demolition order made on the basis of town and country planning legislation was to protect the environment. That was a legitimate aim, in accordance with the general interest for the purposes of the second paragraph of Article 1 of Protocol No. 1, as the Court had already affirmed in Pine Valley Developments Ltd and Others v. Ireland ( 29 November 1991, § 57, Series A no. 222). The applicant could not claim any legitimate expectation on the basis of the age of the building. She had inherited a property which was in contravention of the law and had immediately carried out acts which themselves required planning permission, without making any attempt to apply for that permission or to ascertain whether or not the building could be made compliant. She could not therefore claim any tolerance on the part of third parties that had prejudiced her own rights. The measure complained of was therefore in no way disproportionate. 74. According to the applicant, the Belgian authorities had to be deemed to have been aware of the existence of the building, notably because between 1994 and 2005 she had paid second - residence tax on it in addition to property tax and because various documents referring to the building had been registered. The Government, which had taken no action in relation to this house for over thirty years, could not rely on their poor organisation. The general interest required coherent, clear and rapid action on the part of the authorities. The circumstances of the case demonstrated that they had waived their right to take action in the instant case. Accordingly, it must be held that they could not suddenly go back on their decision without breaching the principle of the legitimate expectations of citizens. The enforced demolition had therefore constituted a disproportionate interference with the applicant ’ s property rights. 75. The Court reiterates its case-law according to which 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, conferred on the applicant title to a substantive interest protected by Article 1 of Protocol No. 1 (see, mutatis mutandis, Zwierzyński v. Poland, no. 34049/96, § 63, ECHR 2001-VI). Certain other rights and interests constituting assets can also be regarded as “property rights”, and thus as “possessions” for the purposes of this provision ( see Iatridis v. Greece [GC], no. 31107/96, § 54, ECHR 1999-II, and Beyeler v. Italy [GC], no. 33202/96, § 100, ECHR 2000-I). “Possessions” can be “existing possessions” or 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 ( see, for example, Prince Hans-Adam II of Liechtenstein v. Germany [GC], no. 42527/98, § 83, ECHR 2001-VIII, and Gratzinger and Gratzingerova v. the Czech Republic ( dec .) [GC], no. 39794/98, § 69, ECHR 2002-VII). 76. In the instant case, the impugned building had been in existence for twenty-seven years before the domestic authorities recorded the offence. Recording breaches of the town and country planning legislation and allocating the necessary resources to do so is undeniably the responsibility of the authorities. The authorities could even be considered to have been aware of the existence of the building in issue since the applicant had paid taxes on the building, just as her father had done before her. In this regard, the Belgian State cannot properly rely on its internal organisation and a distinction between the town and country planning authorities and the tax authorities. It must therefore be considered that the authorities tolerated the situation for twenty-seven years (1967-94) and continued to tolerate it for ten years after the offence had been established (1994-2004, the year in which the house was demolished). After such a long period had elapsed, the applicant ’ s proprietary interest in the enjoyment of her holiday home had been sufficiently established and weighty to amount to a substantive interest and therefore a “possession” within the meaning of the rule expressed in Article 1 of Protocol No. 1. Furthermore, the applicant had a “legitimate expectation” of being able to continue to enjoy that possession. 77. The Court observes that the applicant ’ s house was demolished on the orders of the domestic authorities. This was undeniably an interference with the applicant ’ s “possession”. That interference was in accordance with the law (the decree of 18 May 1999). It was also intended to control the use of property in accordance with the general interest since it involved bringing the property into conformity with a land-use plan establishing a forested zone in which no building was permitted. The debate therefore centres on the proportionality of this interference. In this regard, the Court must ascertain whether a fair balance was struck between the demands of the general interest and the requirements of the protection of the individual ’ s fundamental rights. The search for this balance is reflected in the structure of Article 1 as a whole, and therefore also in the second paragraph thereof: there must be a reasonable relationship of proportionality between the means employed and the aim pursued ( see Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, § 75, ECHR 1999 ‑ III). The requisite balance will be upset if the person concerned has had to bear “an individual and excessive burden” ( see, in particular, James and Others v. the United Kingdom, 21 February 1986, § 50, Series A no. 98). 78. The Court notes that this case concerns rules applicable to town and country planning and environmental protection, areas in which the States enjoy a wide margin of appreciation. 79. It reiterates that while none of the Articles of the Convention is specifically designed to provide general protection of the environment as such ( see Kyrtatos v. Greece, no. 41666/98, § 52, ECHR 2003 -VI ), in today ’ s society the protection of the environment is an increasingly important consideration ( see Fredin v. Sweden ( no. 1), 18 February 1991, § 48, Series A no. 192). The environment is a cause whose defence arouses the constant and sustained interest of the public, and consequently the public authorities. Financial imperatives and even certain fundamental rights, such as ownership, should not be afforded priority over environmental protection considerations, in particular when the State has legislated in this regard. The public authorities therefore assume a responsibility which should in practice result in their intervention at the appropriate time in order to ensure that the statutory provisions enacted with the purpose of protecting the environment are not entirely ineffective. 80. Thus, restrictions on property rights may be allowed on condition, naturally, that a fair balance is maintained between the individual and collective interests concerned ( see, mutatis mutandis, Fotopoulou v. Greece, no. 66725/01, 18 November 2004). 81. The Court therefore has no doubt as to the legitimacy of the aim pursued by the impugned measure : the protection of a forested area in which no building is permitted. 82. It remains to be determined whether the benefit for proper town and country planning and protection of the forested area in which the applicant ’ s house was located can be considered proportionate to the inconvenience caused to her. In this regard, various factors must be taken into consideration. 83. Firstly, the Court notes that a great deal of time had elapsed since the offence occurred. The applicant, and her father before her, had had peaceful and uninterrupted enjoyment of the holiday home for a total of thirty-seven years. The deed of partition drawn up on 6 January 1986 between the applicant and her father had been registered with the Mortgage Registrar at the Ministry of Finance and a registration fee had been paid ( see paragraph 8 above). On the death of the applicant ’ s father in 1993, the notarised deed of distribution specifically referred to the house as a holiday home and the applicant paid the inheritance tax. Since then, the applicant had been paying an annual property tax and second - residence tax on the house ( see paragraph 9 above). The water - supply company carried out works to connect the house to the water and drainage system with no reaction from the authorities ( see paragraph 11 above). Furthermore, when the offence was established, after twenty-seven years, the authorities then allowed a further five years to elapse before instituting criminal proceedings, thus treating the matter with no particular urgency. It is therefore clear that the authorities knew or should have known of the existence of the applicant ’ s house for a long time. However, notwithstanding the provisions of the relevant legislation, they failed to take the appropriate action to ensure compliance. They thus contributed to the continuation of a situation which could only be detrimental to the protection of the forested area which that legislation sought to protect. 84. The Court observes, secondly, that Articles 107 and 158 of the decree of 18 May 1999, taken together, make general provision for an application to be made to render compliant a building without planning permission. However, the provisions of Article 158 clearly indicate that a building erected in contravention of a land- use plan ( see paragraph 38 above) cannot be rendered compliant. The applicant ’ s house was located in a forested area and, under Article 12 of the royal decree of 28 December 1972, that area could incorporate only buildings necessary for the exploitation and monitoring of the timber, as well as hunting and fishing shelters, provided that the latter could not be used as a residence, even on a temporary basis ( see paragraph 41 above). 85. In addition, the fact that the applicant had not been the owner of the property when the house was built and that the authorities had failed to react for a protracted period of time could not give the applicant the impression that proceedings could not be brought against her, since under Belgian law the offence was not subject to limitation and the public prosecutor could decide to apply the law at any time. 86. Lastly, the Court cannot see what measure other than restoration of the site could have been sought by the planning inspector in this particular case, particularly as none of the measures set out in Article 149 § 1 of the decree of 18 May 1999 (order to cease all adverse use, order to carry out building works, payment of the capital gain acquired by the property subsequent to the contravention – see paragraph 38 above) appeared appropriate in the particular circumstances of the case, which concerned an undeniable interference with the integrity of a forested area in which no building was permitted. 87. As a secondary consideration, the Court distinguishes this case from the “Turkish coast” cases (see, among many others, N.A. and Others v. Turkey, no. 37451/97, ECHR 20 05-X). In those cases, the applicants ’ property had been registered in the land register and the parties concerned had obtained from the Ministry of Culture and Tourism a tourist- investment certificate with a view to building a hotel on the land, and the State Planning Agency had awarded them an investment- incentive certificate with a view to building the hotel. Those cases did not therefore involve the merely implicit consent of the authorities, as in the instant case, where the house in issue had been erected without permission by the applicant ’ s parents. 88. All the above leads the Court to conclude that the applicant has not suffered disproportionate interference with her property rights. 89. Accordingly, there has been no violation of Article 1 of Protocol No. 1. ... V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 94. Under Article 41 of the Convention, “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party .” A. Damage 95. The applicant submitted that she had incurred considerable pecuniary damage. Since the property in issue had been in existence for twenty-seven years without having been subject to any measures, she had undertaken restoration of the land and house in good faith and invested considerably in it. When she had inherited the house from her father, it had been in poor condition; she had decided to renovate it, being in no doubt as to its lawfulness. She had thus incurred damage of 62, 635 euros (EUR) for the loss of the house, EUR 43, 865.46 for the investments made and EUR 3, 025 for the demolition costs. 96. The applicant considered that she had also suffered non-pecuniary damage, which she quantified ex aequo et bono at EUR 25, 000. Firstly, she had been deprived of the holidays and periods of rest that she used to take at her second home. Furthermore, since it was the only thing that she had inherited from her father, in her view the house had been of particular value. 97. The Government considered that the amount indicated by the applicant as representing the market value of her property was unrealistic. In their view, the house was worthless on the property market. Articles 1 41 and 142 of the decree of 1 8 May 1999 imposed an obligation, upon the sale of any immovable property, to inform the buyer of the existence of planning permission. Since she would have been unable to produce evidence of such permission, the applicant would not have been able to find a buyer. Her house had not thus added any value to the land, of which, moreover, she had not been dispossessed. Her claim in respect of pecuniary damage should therefore be dismissed. 98. The Government left the matter of non-pecuniary damage to the Court ’ s discretion. 99. The Court points out that the violation found relates to the fact that the reasonable time was exceeded. It does not however see any causal link between that violation and the alleged pecuniary damage. It therefore dismisses this head of the claim. 100. As to non-pecuniary damage, the Court considers that the unreasonable length of the investigation in issue caused prolonged uncertainty as to the fate of the house. This situation of uncertainty justifies an award of compensation. Ruling on an equitable basis, as required by Article 41, the Court awards the applicant EUR 5, 000 for the non-pecuniary damage thus incurred. ... C. Default interest 105. 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 no violation of Article 1 of Protocol No. 1 to the Convention in the applicant’s case, finding that she had not suffered disproportionate interference with her property rights. In this case the Court however reiterated that while none of the Articles of the European Convention on Human Rights is specifically designed to provide general protection of the environment as such, in today’s society the protection of the environment is an increasingly important consideration. It further noted that the environment is a cause whose defence arouses the constant and sustained interest of the public, and consequently the public authorities. Financial imperatives and even certain fundamental rights, such as ownership, should not be afforded priority over environmental protection considerations, in particular when the State has legislated in this regard. The public authorities therefore assume a responsibility which should in practice result in their intervention at the appropriate time in order to ensure that the statutory provisions enacted with the purpose of protecting the environment are not entirely ineffective. |
1,091 | Pensions | II. RELEVANT DOMESTIC LAW AND PRACTICE 21. At the material time, the relevant parts of section 79 of the Public Service Law ( no. 33/67 ) read as follows: “1. In accordance with the present Law, the following disciplinary penalties may be imposed: ... (a) reprimand (b) severe reprimand (c) disciplinary transfer (d) interruption of annual salary increase (e) suspension of annual salary increase (f) pecuniary penalty which cannot exceed three months'salary (g) reduction in the salary scales (h) reduction to the ranks (i) compulsory retirement (j) dismissal. ... 7. Dismissal entails the loss of all retirement benefits.” 22. A revised version of section 79(7) of the Law is now in force in Cyprus and provides as follows: “Dismissal entails the loss of all retirement benefits. It is understood that a pension is paid to the wife or dependent children, if any, of a public servant who was dismissed as though he had died on the date of his dismissal and which will be calculated on the basis of his actual years of service.” 23. Under the provisions of the Public Service Law, the duties and responsibilities for posts in the public service are set out in the relevant “ schemes of service”, approved by the Council of Ministers. According to the scheme of service for the post of Governor of the Department of Co-operative Development held by the applicant, the duties and responsibilities were as follows: “Management of the Department of Co-operative Development and responsibility for the promotion, development and orderly operation of the Co-operative Movement in the island. Exercise of the power and duties provided by the relevant laws and regulations. Adviser to the Minister of Finance on co-operative matters. Represents the Co-operative Department in various committees and bodies. Performance of any other duties which may be assigned to him.” 24. A public servant's entitlement to a pension is governed by the Republic's Pensions Law, Chapter 311. Section 6 of this Law, which was in force at the time of the applicant's dismissal, provided that no pension, gratuity or other allowance shall be granted except upon retirement from the public service in one of the cases specifically enumerated. Section 6(f) referred to “the case of termination of employment in the public interest as provided in this Law”, that is section 7 of the Law, which in turn provided as follows: “Where an officer's service is terminated by the Council of Ministers on the ground that, having regard to the conditions of the public service, the usefulness of the officer thereto and all the other circumstances of the case, such termination is desirable in the public interest, and a pension, gratuity or other allowance cannot otherwise be granted to him under the provisions of this Law, the Council of Ministers may, if they think fit, grant such pension, gratuity or other allowance as they think just and proper, not exceeding in amount that for which the officer would be eligible if he retired from the public service in the circumstances described in paragraph (e) of section 6 of this Law.” 25. Until 1967, section 5(1) of Chapter 311 provided as follows: “No officer shall have an absolute right to compensation for past services or to pension, gratuity or other allowance; nor shall anything in this Law affect the right of the Crown to dismiss any other officer at any time and without compensation.” This section was repealed by Law no. 9/1967, which came into force on 1 April 1967. Furthermore, section 3(1) of the same Law, which read: “Pensions, gratuities and other allowances may be granted by the Governor in accordance with the regulations contained in the Schedule to this Law to Officers who have been in the service under the Government of Cyprus ... ” was amended by Law no. 9/1967 by replacing the word “may” with the word “shall”. Regulation 4, issued under Chapter 311, which provided: “Subject to the provisions of the Law and of these Regulations, every officer holding a pensionable office under the Government of Cyprus, who has been in the service under the Government of Cyprus in a civil capacity for ten years or more, may be granted on retirement a pension at the annual rate of one six-hundredth of his pensionable emoluments for each complete month of his pensionable service.” was also amended by Law no. 9/1967 by replacing the word “may” with the word “shall”. 26. Article 166 § 1 of the Constitution reads as follows: “There shall be charged on the Consolidated Fund, in addition to any grant, remuneration or other moneys charged by any other provision of this Constitution or law (a) all pensions and gratuities for which the Republic is liable ...” 27. Article 169 § 3 of the Constitution reads as follows: “Treaties, conventions and agreements concluded in accordance with the foregoing provisions of this Article shall have, as from their publication in the official Gazette of the Republic, superior force to any municipal law on condition that such treaties, conventions and agreements are applied by the other party thereto.” 28. The relevant parts of Article 23 of the Constitution read as follows: “ 1. Every person, alone or jointly with others, has the right to acquire, own, possess, enjoy or dispose of any movable or immovable property and has the right to respect for such a right. The right of the Republic to underground water, minerals and antiquities is reserved. 2. No deprivation or restriction or limitation of any such right shall be made except as provided in this Article. 3. Restrictions or limitations which are absolutely necessary in the interests of public safety or public health or public morals, or town and country planning or the development and use of any property for the promotion of the public benefit or for the protection of the rights of others, may be imposed by law on the exercise of such a right. Just compensation shall be promptly paid for any such restrictions or limitations which materially decrease the economic value of the property; in case of disagreement, such compensation is to be determined by a civil court. 4. Any movable or immovable property or any right over or interest in any such property may be compulsorily acquired by the Republic, or by a municipal corporation or by a Communal Chamber for educational, religious, charitable or sporting institutions, bodies or establishments within its competence and only from the persons belonging to its respective community, or by a public corporation or a public utility body on which such a right has been conferred by law and only – (a) for a purpose which is to the public benefit and shall be specially provided by a general law for compulsory acquisition which shall be enacted within a year from the date of the coming into operation of this Constitution; (b) when such purpose is established by a decision of the acquiring authority and made under the provisions of such law stating clearly the reasons for such acquisition; (c) upon payment in cash and in advance of just and equitable compensation, to be determined in case of disagreement by a civil court. ... ” 29. The relevant parts of Article 146 of the Constitution read as follows: “1. 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 an 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. 2. Such a recourse may be made by a person whose any existing legitimate interest, which he has either as a person or by virtue of being a member of a Community, is adversely and directly affected by such decision or act or omission. 3. Such a recourse shall be made within seventy-five days of the date when the decision or act was published or, if not published and in the case of an omission, when it came to the knowledge of the person making the recourse. 4. Upon such a recourse the Court may, by its decision (a) confirm, either in whole or in part, such decision or act or omission; or (b) declare, either in whole or in part, such decision or act to be null and void and of no effect whatsoever; or (c) declare that such omission, either in whole or in part, ought not to have been made and that whatever has been omitted should have been performed. 5. Any decision given under paragraph 4 of this Article shall be binding on all courts and all organs or authorities in the Republic and shall be given effect to and acted upon by the organ or authority or person concerned. ... ” 30. The applicant attached to his further observations on the merits (dated 8 January 2002 ) in reply to the Government's observations a document established by the Pancyprian Public Employees'Trade Union on 7 January 2002, in which the following is specified: “It is a well-known fact that the pension constitutes an integral part of the employment contract that the Cyprus government offers to all of its employees, namely civil servants. This is a hard- earned right that the unions have secured over the years and the government has undertaken to pay such a pension as part of the employment contract. This can also be seen from the schemes of service that the government has. A civil service position is accompanied by a compulsory retirement scheme, which consists of receiving certain retirement benefits at the end of one's employment, which include a monthly pension and a lump sum. This is part of the overall employment package the government undertakes to provide, and civil servants contribute with their years of service and by having a certain amount deducted from their salary by way of taxes. This package is based on the employment relationship and the government has undertaken to finance it and provide it at the end of an employee's career. ” THE LAW I. SCOPE OF THE GRAND CHAMBER'S JURISDICTION 31. The applicant submitted that the power to refer a case to the Grand Chamber in accordance with Article 43 of the Convention was limited. Such a referral was an exceptional procedural step, and the Court's jurisdiction had to be exercised carefully. In the present case, only one of the three grounds relied on by the Government for referring the case qualified for review under Article 43 § 2, namely the ground regarding the Court's jurisdiction ratione temporis. In effect, he contended, it was clear from the emphasis the Government put on the three points in their request for referral that the most important one was that of the jurisdiction ratione temporis. This was the only ground which raised a question affecting the interpretation or application of the Convention or that could be said to raise a serious issue of general importance for the purposes of Article 43 of the Convention. 32. The Court considers that it is now well - established case-law that “ the case” referred to the Grand Chamber necessarily embraces all aspects of the application previously examined by the Chamber in its judgment, the scope of its jurisdiction in “ the case” being limited only by the Chamber's decision on admissibility. This does not mean, however, that the Grand Chamber may not also examine, where appropriate, issues relating to the admissibility of the application in the same manner as this is possible in normal Chamber proceedings, for example by virtue of Article 35 § 4 in fine of the Convention (which empowers the Court to “reject any application which it considers inadmissible ... at any stage of the proceedings”), or where such issues have been joined to the merits or where they are otherwise relevant at the merits stage ( see K. and T. v. Finland [GC], no. 25702/94, §§ 140-41, ECHR 2001-VII, and Perna v. Italy [GC], no. 48898/99, §§ 23-24, ECHR 2003- V ). Thus, even at the merits stage and subject to Rule 55 of the Rules of Court, the Court may reconsider a decision to declare an application admissible where it concludes that it should have been declared inadmissible for one of the reasons given in the first three paragraphs of Article 35 of the Convention ( see, mutatis mutandis, Odièvre v. France [GC], no. 42326/98, § 22, ECHR 2003-III). 33. This being so, the scope of the case before the Grand Chamber is not limited in the way suggested by the applicant. II. THE GOVERNMENT'S PRELIMINARY OBJECTIONS Non-exhaustion of domestic remedies 1. The Government's submissions to the Grand Chamber 34. In their request for the referral of the case to the Grand Chamber and, subsequently, in their observations, the Government reiterated the objection they had pleaded before the Chamber as to the non-exhaustion of domestic remedies. They underlined that the applicant expressly withdrew the allegation of a violation of a property right which was never raised, argued or adjudicated upon, even in the remotest way. The applicant referred to the retirement benefits only in the context of challenging dismissal as a disproportionate sanction. Thus, the Supreme Court did not in substance deal with or have the opportunity of dealing with an alleged property violation. However, before the Supreme Court, constitutional matters must be specifically raised and pleaded by the party concerned; they are not examined by the court proprio motu. The Chamber appeared to have misunderstood the nature of the proceedings in the domestic courts. The issue of non-exhaustion was a real question of admissibility and the Court was empowered under Article 35 § 4 to deal with it at this stage. 2. The applicant's submissions to the Grand Chamber 35. The applicant maintained that the question of exhaustion of domestic remedies had already been settled by the Chamber in its final decision on admissibility of 19 June 2001. The Government had failed to raise it again at the merits stage before the Chamber and it was doubtful that they even could have done so. Thus, they were estopped from doing so before the Grand Chamber. 3. The Chamber's decision 36. In its admissibility decision of 19 June 2001, the Chamber held that by challenging the legality of the decision of the Public Service Commission to impose the sanction of dismissal, the applicant had also contested, albeit implicitly, the forfeiture of his retirement pension. The Chamber noted that the Supreme Court, sitting as a first - instance court, had held that the discretionary power of the commission concerned only the nature of the sanction, the loss of retirement benefits being the normal consequence of that particular sanction. The Supreme Court, sitting as a court of appeal, had upheld that conclusion. Finally, the Chamber noted that the applicant's lawyer had expressly stated before the Supreme Court that he maintained the third and fourth grounds of appeal, which, in the Chamber's view, also covered the fifth ground. 4. The Court's assessment 37. As in Odièvre, cited above, the Grand Chamber is not precluded from examining the Government's objection of non-exhaustion of domestic remedies since, in accordance with Rule 55 of the Rules of Court, they duly raised this objection at the admissibility stage before the Chamber. 38. While in the context of machinery for the protection of human rights the rule of exhaustion of domestic remedies must be applied with some degree of flexibility and without excessive formalism, it does not require merely that applications should be made to the appropriate domestic courts and that use should be made of remedies designed to challenge impugned decisions which allegedly violate a Convention right. It normally requires also that the complaints intended to be made subsequently at the international level should have been aired before those same courts, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law (see, among many other authorities, Fressoz and Roire v. France [GC], no. 29183/95, § 37, ECHR 1999- I ). The object of the rule on exhaustion of domestic remedies is to allow the national authorities (primarily the judicial authorities ) to address the allegation made of violation of a Convention right and, where appropriate, to afford redress before that allegation is submitted to the Court (see Kudła v. Poland [GC], no. 30210/96, § 152, ECHR 2000- XI ). In so far as there exists at national level a remedy enabling the national courts to address, at least in substance, the argument of violation of the Convention right, it is that remedy which should be used. If the complaint presented before the Court (for example, unjustified interference with the right of property) 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. It is not sufficient that the applicant may have, unsuccessfully, exercised another remedy which could have overturned the impugned measure on other grounds not connected with the complaint of violation of a Convention right. It is the Convention complaint which must have been aired at national level for there to have been exhaustion of “effective remedies ”. It would be contrary to the subsidiary character of the Convention machinery if an applicant, ignoring a possible Convention argument, could rely on some other ground before the national authorities for challenging an impugned measure, but then lodge an application before the Court on the basis of the Convention argument ( see Van Oosterwijck v. Belgium, judgment of 6 November 1980, A Series no. 40, pp. 16-17, § § 33-34 ). 39. The Court notes that the Convention forms an integral part of the Cypriot legal system, where it takes precedence over any contrary provision of national law (Article 169 § 3 of the Constitution – see paragraph 27 above ). It further notes that Article 1 of Protocol No. 1 is directly applicable within the Cypriot legal system. The applicant could therefore have relied on that provision in the Supreme Court or on arguments to the same or like effect based on domestic law, namely, Article 23 of the Constitution which guarantees the right of property (see paragraph 28 above), and complained of a violation thereof in his case. 40. However, the applicant did not cite Article 1 of Protocol No. 1 before the Supreme Court sitting as a court of appeal. Even if in the fifth ground of the notice of appeal to the Supreme Court it was pleaded that the forfeiture of the retirement benefits upon the applicant's disciplinary dismissal violated the right of property under Article 23 of the Constitution, counsel for the applicant expressly withdrew that ground, along with two others, at the first hearing of the appeal on 14 September 1998. The Supreme Court immediately dismissed the withdrawn grounds and proceeded to hear counsel on the remaining two grounds only, namely the third and fourth, in which it was maintained that, by imposing the sanction of dismissal which involved the forfeiture of the applicant's pension, despite the mitigating circumstances in favour of the applicant, the Public Service Commission had not lawfully exercised its discretionary power (see paragraphs 17- 18 above). At the second hearing of the appeal on 9 July 1999, the Supreme Court explicitly enquired of the applicant's counsel whether he was arguing unconstitutionality, and counsel thereupon reaffirmed that he had withdrawn the first, second and fifth grounds at the first hearing and was only arguing the third and fourth (see paragraph 19 above). It transpires from the records of the hearings before the Supreme Court that, in both hearings, the applicant's counsel referred to the forfeiture of retirement benefits in order to show that the sanction of dismissal was disproportionately severe in the circumstances and that a lighter sanction should have been imposed instead. It was for this reason that the Supreme Court never ruled on whether the applicant's dismissal violated his property right to a pension. 41. In sum, the applicant did not provide the Cypriot courts with the opportunity which is in principle intended to be afforded to a Contracting State by Article 35 of the Convention, namely the opportunity of addressing, and thereby preventing or putting right, the particular Convention violation alleged against it (see, among other authorities, Guzzardi v. Italy, judgment of 6 November 1980, Series A no. 39, p. 2 6 ‑ 2 7, § 72, and Cardot v. France, judgment of 19 March 1991, Series A no. 200, p. 19, § 36). The objection that the relevant “effective” domestic remedy was not used by Mr Azinas in the instant case is therefore well-founded. 42. Consequently, the application must be rejected as inadmissible, in accordance with Article 35 §§ 1 and 4 in fine of the Convention. 43. In view of this conclusion, it is not necessary for the Court to examine the various arguments submitted to it concerning the Government's objection that the subject-matter of the application was outside the Court's jurisdiction ratione temporis, and in particular the Government's argument that it was open to the Court to entertain this objection despite the fact that they waited until filing their observations on just satisfaction before raising it for the first time (see Rule 55 of the Rules of Court). | The Court, finding the Cypriot Government’s objection that the relevant “effective” domestic remedy had not been exhausted by the applicant to be well-founded, declared the application inadmissible. The applicant had not cited Article 1 (protection of property) of Protocol No. 1 to the Convention before the Supreme Court, sitting as an appeal court. It was for this reason that the Supreme Court never ruled on whether the applicant’s dismissal violated his property right to a pension. The applicant did not therefore provide the Cypriot courts with the opportunity which was in principle intended to be given to States which had ratified the European Convention on Human Rights by Article 35 (admissibility criteria) of the Convention, namely the opportunity of addressing, and thereby preventing or putting right, the particular Convention violation alleged. |
1,059 | Protection of property (Article 1 of Protocol No. 1 to the Convention) | II. RELEVANT LAW AND PRACTICE A. Community law 1. General principles 31. As regards the principle of the “precedence of the Community legal system”, see, among other authorities, the following judgments of the Court of Justice of the European Communities (CJEC): Case 6/64, Costa v. E.N.E.L. [1964] European Court Reports (ECR) 585 (“By contrast with ordinary international treaties, the EEC treaty has created its own legal system which, on the entry into force of the treaty, became an integral part of the legal systems of the Member States and which their courts are bound to apply”); Case 34/73, Fratelli Variola Spa v. Amministrazione italiana delle Finanze [1973] ECR 981; and Case 106/77, Amministrazione delle Finanze dello Stato v. Simmenthal [1978] ECR 629. 32. CJEC, Case 26/62, Van Gend en Loos v. Administratie der Belastingen [1963] ECR 1: “Independently of the legislation of Member States, Community law not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage.” 33. CJEC, Case 309/85, Barra v. Belgian State and City of Liège [1988] ECR 355, paragraphs 17 and 18: “The right to repayment of amounts charged by a Member State in breach of the rules of Community law is the consequence and complement of the rights conferred on individuals by the Community provisions as interpreted by the Court. Whilst it is true that repayment may be sought only in the framework of the conditions as to both substance and form laid down by the various national laws applicable thereto, the fact nevertheless remains that those conditions may not be so framed as to render virtually impossible the exercise of rights conferred by Community law.” 2. The Directives 34. CJEC, Case 8/81, Becker v. Finanzamt Münster-Innenstadt [1982] ECR 53, paragraphs 19, 20 and 24: “Wherever a directive is correctly implemented, its effects extend to individuals through the medium of the implementing measures adopted by the Member State concerned ... However, special problems arise where a Member State has failed to implement a directive correctly and, more particularly, where the provisions of the directive have not been implemented by the end of the period prescribed for that purpose ... A Member State which has not adopted the implementing measures required by the directive within the prescribed period may not plead, as against individuals, its own failure to perform the obligations which the directive entails.” 35. CJEC, Joined Cases C-178/94, C-179/94, C-188/94, C-189/94 and C-190/94, Erich Dillenkorfer and others v. Bundesrepublik Deutschland [1996] ECR I-4845, paragraph 29: “Failure to take any measure to transpose a directive in order to achieve the result it prescribes within the period laid down for that purpose constitutes per se a serious breach of Community law and consequently gives rise to a right of reparation for individuals suffering injury ...” CJEC, Joined Cases C-6/90 and C-9/90, Francovich and Bonifaci v. Italian Republic [1991] ECR I-5357, paragraph 36: “A further basis for the obligation of Member States to make good such loss and damage is to be found in Article 5 of the Treaty, under which the Member States are required to take all appropriate measures, whether general or particular, to ensure fulfilment of their obligations under Community law. Among these is the obligation to nullify the unlawful consequences of a breach of Community law.” 36. CJEC, Case 188/95, Fantask and others v. Industriministeriet [1997] ECR I-6783, paragraphs 42, 48 and 52: “By its seventh question, the national court essentially asks whether Community law prevents a Member State from relying on a limitation period under national law to resist actions for the recovery of charges levied in breach of the Directive as long as that Member State has not properly transposed the Directive ... The Court has thus acknowledged, in the interests of legal certainty which protects both the taxpayer and the authority concerned, that the setting of reasonable limitation periods for bringing proceedings is compatible with Community law. Such periods cannot be regarded as rendering virtually impossible or excessively difficult the exercise of rights conferred by Community law, even if the expiry of those periods necessarily entails the dismissal, in whole or in part, of the action brought (see, in particular, Case 33/76 Rewe v. Landwirtschaftskammer Saarland [1976] ECR 1989, paragraph 5, Case 45/76 Comet v. Produktschap voor Siergewassen [1976] ECR 2043, paragraphs 17 and 18, and Case 261/95 Palmisani v. Istituto Nazionale della Previdenza Sociale [1997] ECR I-0000, paragraph 28) ... The reply to the seventh question must therefore be that Community law, as it now stands, does not prevent a Member State which has not properly transposed the Directive from resisting actions for the repayment of charges levied in breach thereof by relying on a limitation period under national law which runs from the date on which the charges in question became payable, provided that such a period is not less favourable for actions based on Community law than for actions based on national law and does not render virtually impossible or excessively difficult the exercise of rights conferred by Community law.” 3. Lack of retrospective effect for the Ninth Directive and period of application of the Ninth Directive in 1978 37. CJEC, Case 70/83, Kloppenburg v. Finanzamt Leer [1984] ECR 1075, paragraphs 11-14: It is necessary to emphasise, as the Court has already done on several occasions, that Community legislation must be unequivocal and its application must be predictable for those who are subject to it. Postponement of the date of entry into force of a measure of general application, although the date initially specified has already passed, is in itself liable to undermine that principle. If the purpose of an extension is to deprive individuals of the legal remedies which the first measure has already conferred upon them, such an effect in practice raises the question of the validity of the amending measure. However, such a question of validity could arise only if the intention to produce the above-mentioned effect were expressly stated in the amending measure. That is not so in the case of the Ninth Directive. The text of that Directive merely extends the period for transposing the Sixth Directive into national law in favour of those Member States which were unable to complete, within the period initially prescribed, the legislative procedure required for amending their legislation on value-added tax. It contains nothing to indicate that the extension alters the position of economic operators in relation to transactions carried out by them prior to the entry into force of the measure altering the period allowed for implementation. It follows that the Ninth Directive must be interpreted as not having retroactive effect in that regard. The answer to the question raised should therefore be that in the absence of the implementation of the Sixth Council Directive, 77/388/EEC, of 17 May 1977, on the Harmonisation of the Laws of the Member States relating to Turnover Taxes – Common System of Value-Added Tax; Uniform Basis of Assessment, it was possible for the provision concerning the exemption of the negotiation of credit ... to be relied upon by a credit negotiator in relation to transactions carried out between 1 January and 30 June 1978 ...” B. Domestic case-law 1. Conseil d'Etat 38. Judicial Assembly, 22 December 1978, ministre de l'Intérieur v. Cohn-Bendit, Recueil Lebon : “... Article 56 of the Treaty establishing the European Economic Community dated 25 March 1957, which does not contain any provision empowering bodies of the European Communities to make regulations on public-policy grounds that are directly applicable in the member States, provides that the coordination of provisions laid down by law or regulation 'providing for special treatment for foreign nationals on grounds of public policy, public security or public health' shall be assured by directives issued by the Council on a proposal from the Commission and after consulting the Assembly. It is clear from Article 189 of the Treaty of 25 March 1957 that while such directives are binding upon each member State 'as to the result to be achieved' and while in order to achieve the prescribed results the national authorities are required to adapt the legislation and regulations of the member States to comply with the directives addressed to them, it is solely for those authorities to determine the form implementation of the directives will take and to decide, subject to supervision by the domestic courts, how to give effect to the directives in domestic law. Thus, regardless of any instructions they may contain for the member States, directives cannot be pleaded in aid of appeals by nationals of those States against individual administrative acts. It follows that Mr Cohn- Bendit's submission to the Paris Administrative Court in support of his application for an order quashing the Minister of the Interior's decision of 2 February 1976, on the ground that it contravened the provisions of the Directive issued on 25 February 1964 by the Council of the European Communities with a view to coordinating, in accordance with the conditions laid down by Article 56 of the Treaty of Rome, the special measures taken to control the movement and residence of aliens on grounds of public policy, public security or public health, is unfounded. Accordingly, in the absence of any contention that the regulatory measures taken by the French Government in order to comply with the directives issued by the Council of the European Communities are unlawful, the decision to be taken on Mr Cohn- Bendit's appeal cannot under any circumstances turn upon the interpretation of the Directive of 25 February 1964. It follows, without there being any need to examine the grounds of the appeal, that the Minister of the Interior's submission is well-founded, namely the Paris Administrative Court erred in its impugned judgment of 21 December 1977 in referring to the Court of Justice of the European Communities the issues concerning the interpretation of that Directive and staying the proceedings pending the Court of Justice's decision ...” 39. Judicial Assembly, 20 October 1989, Nicolo, Recueil Lebon, p. 190: “By section 4 of Law no. 77-729 of 7 July 1977 governing the Election of the Representatives of the Assembly of the European Communities 'the territory of the Republic forms a single constituency' for the purposes of the election of the French representatives to the European Parliament. By virtue of that statutory provision, taken together with Articles 2 and 72 of the Constitution of 4 October 1958, which lay down that the overseas départements and territories are integral parts of the French Republic, those départements and territories are necessarily included in the single constituency within which the election of representatives to the European Parliament takes place. Article 227-1 of the Treaty of 25 March 1957 establishing the European Economic Community provides: 'This Treaty shall apply to the French Republic .' The aforesaid rules set out in the Law of 7 July 1977 are not incompatible with the clear provisions of the aforementioned Article 227-1 of the Treaty of Rome ...” 40. Judicial Assembly, 28 February 1992, S.A. Rothmans International France et S.A. Philip Morris France, Recueil Lebon, p. 20: “Article 37 of the Treaty establishing the European Economic Community provides: 'Member States shall progressively adjust any State monopolies of a commercial character so as to ensure that when the transitional period has ended no discrimination regarding the conditions under which goods are procured and marketed exists between nationals of Member States.' Article 5-1 of the Directive of the Council of the European Communities dated 19 December 1972, which was issued with a view to implementing those provisions with regard to manufactured tobacco and the provisions of Article 30 of the Treaty, which prohibits quantitative restrictions and all measures having equivalent effect, provides: 'Manufacturers and importers shall be free to determine the maximum retail selling price for each of their products. This provision may not, however, hinder implementation of the national systems of legislation regarding the control of price levels or the observance of imposed prices.' As the Court of Justice of the European Communities ruled in finding infringements in its judgments of 21 June 1983 and 13 July 1988, the only provisions whose application is reserved by Article 5-1 of the Directive are provisions of national legislation of a general nature that are intended to curb increases in prices. The aforementioned provisions of section 6 of the Law of 24 May 1976 confer on the government a special power to fix the price of tobacco imported from member States of the European Community, independently of the application of the national legislation regarding the control of price levels. They thus enable the government to fix the sale price of imported tobacco in conditions that were not contemplated by Article 5-1 of the Directive of 19 December 1972 and are incompatible with the objectives set out in that Directive. It follows from this that Article 10 of the decree of 31 December 1976 referred to above, which was issued on the basis of section 6 of the Law of 24 May 1976, which must be regarded as inapplicable, is itself devoid of statutory basis. In view of the foregoing, the Minister of the Economy, Finance and the Budget was not entitled in law tacitly to reject the applications by the companies Rothmans International France and Philip Morris France for permission to raise the price of products they imported or distributed as wholesalers by fifty centimes on 1 September 1983. Accordingly, the said decisions must be quashed ...” 2. Court of Cassation 41. Mixed Division, 24 May 1975, Administration des douanes v. Société des cafés Jacques Vabre, Sarl J. Weigel et Cie, (Court of Cassation, Bulletin no. 4): “... the Treaty of 25 March 1957, which, by virtue of Article [55] of the Constitution, ranks above legislation, establishes a separate branch of law which is integrated into the legal systems of the member States. Owing to that special characteristic, the branch of law set up by the Treaty is directly applicable to nationals of those States and binding on their courts ... Accordingly, the Court of Appeal's decision that Article 95 of the Treaty should be applied in the instant case, to the exclusion of Article 265 of the Customs Code, even though the latter provision is the more recent, was correct and not beyond the Court of Appeal's powers ... Since, in the Community legal system, infringements by member States of the European Economic Community of their obligations under the Treaty of 25 March 1957 are actionable under Article 170 of the said Treaty, the plea of lack of reciprocity is not available in the domestic courts ...” 3. Legal theory 42. Extracts from Institutions administratives – Droit administratif, by Georges Dupuis and Marie-José Guédon, published by Armand Colin, Paris, 1986, pp. 87-88: “The Court of Cassation drew the logical conclusions from the fact that the two legal systems are superimposed: in the event of a conflict between a statute and a Community norm, only the latter is applicable, even if it is prior in time. Consequently, French courts will refuse to apply French law if it is contrary to European law. In other words, they carry out a form of verification of the compatibility of the statute with Community law that is very similar to a review of constitutionality. Basically, the reasoning of the Court of Cassation extends the principle established by Article 55 of the Constitution that international treaties take precedence over statutes. The Court of Cassation relies on two series of arguments: firstly, implicit in the initial treaties is a move towards abandonment of sovereignty by the States and the creation of genuine supra-sovereignty in favour of the Community bodies. Secondly, since the national courts are responsible for applying the provisions emanating from that supra-sovereignty directly, they cannot give precedence to domestic law as, in this system, it is necessarily infra-sovereign (Court of Cassation, Société des cafés Jacques Vabre, 24 May 1975 ...). The Conseil d'Etat rejects such reasoning ( Conseil d'Etat, 1 March 1968, Syndicat général des fabricants de semoule de France ...; Conseil d'Etat, 22 December 1978, ministre de l'Intérieur v. Cohn-Bendit ...). It has shown itself to be 'essentially a national jurisdiction, which is persuaded of the excellence of the national system and has resolved to act as the guardian of national legality' (C.-A. Colliard, Le juge administratif français et le droit communautaire, Mélanges offerts à Marcel Waline, LGDJ, Paris, 1974, p. 187; Bruno Genevois'Le Conseil d'Etat et l'ordre juridique communautaire ', EDCE [Studies and documents of the Conseil d'Etat ], 1979-1980, p. 73; Reports and Studies Committee of the Conseil d'Etat ,'Droit communautaire et droit français ', EDCE, 1981-1982, p. 215), notably in two ways. Firstly, it has proscribed all verification of the compatibility of legislation with Community law: according to a Government Commissioner, the administrative courts 'may not criticise or disregard a statute, even on the ground that it violates international law or, more particularly, Community law'. Secondly, on a more specific point, the Conseil d'Etat has chosen not to follow the case-law of the Court of Justice of the European Communities that has blurred the distinction between regulations and directives... The Conseil d'Etat affirms, on the contrary, [that] 'regardless of any instructions they may contain' [directives] cannot be pleaded in aid of an application for review of an individual act. Directives do, however, impose an obligation on the national authorities to adapt their legislation and regulations so as to comply with the directive (see Cohn- Bendit, cited above). Consequently, nationals of member States may challenge the validity of domestic regulatory measures by reference to the Community directives which they purport to implement or which they disregard.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL No. 1 43. The applicant company alleged a violation of its right of property set out in the second sentence of the first paragraph of Article 1 of Protocol No. 1, which provides: “Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.” A. Existence of possessions within the meaning of Article 1 of Protocol No. 1 44. The applicant company submitted that it held a definite, immediately payable debt that could be assimilated to an asset as that term was used in Van Marle and Others v. the Netherlands (judgment of 26 June 1986, Series A no. 101, p. 13, § 41), since it had paid the tax as a result of a situation which the Administrative Court of Appeal and the Government Commissioner in the Conseil d'Etat considered to be unlawful. It also had a legitimate expectation of recovering its debt. From 1 January to 30 June 1978 the French value-added tax (VAT) legislation had contravened Community law as set out in Article 13-B-a of the Sixth Directive of 17 May 1977. The applicant company pointed out that the administrative circular of 2 January 1986 had been issued before the Conseil d'Etat 's judgment of 19 March 1986 dismissing its appeal. It had therefore been on the basis of that administrative circular that its second appeal, alleging both fault on the part of the State for failing to transpose the Sixth Directive into domestic law and strict State liability for failing to maintain equality between public burdens, had been lodged. When it lodged its second appeal it therefore had a legitimate expectation within the meaning of the Court's judgment in Pressos Compania Naviera S.A. and Others v. Belgium (judgment of 20 November 1995, Series A no. 332) that its claim would be upheld, as a result of the issue of the administrative circular and the consequences it entailed. In addition, the administrative courts did accept jurisdiction to verify the compatibility of international and French norms, as the new precedent laid down in 1996 in S.A. Revert et Badelon did no more than to apply a line of authorities that dated back to 1989 to tax proceedings ( Conseil d'Etat, 20 October 1989, Nicolo, Recueil 190). The Conseil d'Etat had in several earlier decisions held that the State's responsibility was engaged in the event of a violation of Community law, in particular, if it was at fault for allowing an illegal situation to develop through the incompatibility of a domestic measure with a community directive (Judicial Assembly of the Conseil d'Etat, 28 February 1992, Arizona Tobacco Products and S.A. Philip Morris France ). It followed that the judgment of the Administrative Court of Appeal was not an isolated authority and, indeed, it was only overturned by the Conseil d'Etat on procedural grounds based on the “classification of proceedings” rule ( principe de la distinction des contentieux ). The applicant company added that at the time its claim for compensation was lodged the classification of proceedings rule was only relative in scope, since as long ago as 1963 the Conseil d'Etat had declared, in a case in which the legal causes of action were identical, that a claim for compensation based on the illegality of an act was admissible, even though an application to have the act set aside as being ultra vires had previously been dismissed ( Conseil d'Etat, 3 May 1963, Alaux, Recueil 261). Lastly, since the implementation of the administrative circular of 1986 had created a difference in treatment between taxpayers of the same category, it afforded at minimum a basis on which the applicant company could lay claim to its debt by a second application for compensation (see National & Provincial Building Society, Leeds Permanent Building Society and Yorkshire Building Society v. the United Kingdom, judgment of 23 October 1997, Reports of Judgments and Decisions 1997-VII). By exempting from liability those companies which had not paid the VAT, the tax authorities had acknowledged that they were under no obligation to pay it under domestic law and had thereby acknowledged their error. 45. The Government contended that the applicant company had not shown that it had had a legitimate expectation that could be regarded as a possession within the meaning of Article 1 of Protocol No. 1 when it issued its second action (see Pressos Compania Naviera S.A. and Others, cited above). There were two primary reasons why the applicant company's new appeal could not succeed. Firstly, its action had been brought on the basis that the tax authorities had been at fault in imposing the tax, whereas the existence of any such fault was necessarily excluded by the Conseil d'Etat 's ruling in its judgment on the first appeal that the tax in issue had been lawfully levied. As regards the Paris Administrative Court of Appeal's judgment of 1 July 1992 allowing the applicant company's appeal, the Government argued that it was not in line with the case-law at the time the second appeal was lodged. Secondly, the Government referred to the “classification of remedies” rule ( règle de la distinction des voies de recours ), which, as the Conseil d'Etat had held in its judgment of 30 October 1996, precluded the applicant company from successfully bringing an action in tort after failing in its tax appeal. 46. The Court notes that, by requiring payment of VAT on transactions negotiated by insurance brokers during the period from 1 January to 30 June 1978, the French legislation was incompatible with the provisions of Article 13-B-a of the Sixth Directive of the Council of the European Communities of 17 May 1977, which was directly applicable from 1 January 1978 for the period concerned. This is apparent from the Sixth and Ninth Directives, the relevant case-law of the Court of Justice of the European Communities (CJEC – see paragraphs 31-37 above), the administrative circular of 2 January 1986 (see paragraph 15 above) and the terms of the Conseil d'Etat 's judgment of 30 October 1996 in S.A. Revert et Badelon (see paragraph 30 above). However, it is common ground that, even though it carried on business as insurance brokers, the applicant company paid VAT for the period from 1 January to 30 June 1978. Indeed, the Administrative Court of Appeal found in favour of the applicant company on 1 July 1992 in the second set of proceedings. The Court further notes that since its judgment in Nicolo of 20 October 1989 the Conseil d'Etat has been willing to verify the compatibility of French norms with international norms (see paragraph 39 above). Furthermore, the Conseil d'Etat had already held in a previous case before ruling on the applicant company's second appeal that the State was liable for a violation of Community law owing to the incompatibility of a domestic measure (see paragraph 40 above). 47. As to the “the classification of remedies” rule relied on by the Government, the Court notes that right from its first appeal the applicant company's claim was based on a Community norm that was perfectly clear, precise and directly applicable. That right did not disappear with the Conseil d'Etat 's judgment of 1986 and, consequently, survived during the second set of proceedings. Further, the Court reiterates that the fact that the Conseil d'Etat relied on a long-standing principle cannot by itself justify a failure to comply with the present requirements of European law (see, mutatis mutandis, Delcourt v. Belgium, judgment of 17 January 1970, Series A no. 11, p. 19, § 36). It points out in that connection that the Convention is a living instrument that must be interpreted in the light of present-day conditions and the notions currently prevailing in democratic States (see, among other authorities, Burghartz v. Switzerland, judgment of 22 February 1994, Series A no. 280-B, p. 29, § 28). The procedural rule regarding the “classification of proceedings” cannot therefore cause a substantive right created by the Sixth Directive to disappear. 48. In the light of the foregoing, the Court finds that the applicant company had a valid claim against the State when it lodged its two appeals for the VAT paid in error for the period from 1 January to 30 June 1978. A claim of that nature “constituted an asset” and therefore amounted to a “possession” within the meaning of the first sentence of Article 1 of Protocol No. 1, which was accordingly applicable in the present case (see, among other authorities, Pressos Compania Naviera S.A. and Others, cited above, p. 21, § 31). In any event, the Court considers that the applicant company had at least a legitimate expectation of being able to obtain the reimbursement of the disputed sum (see Pine Valley Developments Ltd and Others v. Ireland, judgment of 29 November 1991, Series A no. 222, p. 23, § 51). B. Whether there was an interference and the applicable rule 49. Under the Court's case-law, Article 1 of Protocol No. 1, which guarantees in substance the right of property, comprises three distinct rules. The first, which is expressed in the first sentence of the first paragraph and is of a general nature, lays down the principle of peaceful enjoyment of property. The second rule, in the second sentence of the same paragraph, covers deprivation of possessions and makes it subject to certain conditions. The third, contained in the second paragraph, recognises that the Contracting States are entitled, amongst other things, to control the use of property in accordance with the general interest. The second and third rules, which are concerned with particular instances of interference with the right to peaceful enjoyment of property, must be construed in the light of the general principle laid down in the first rule (see, among other authorities, Sporrong and Lönnroth v. Sweden, judgment of 23 September 1982, Series A no. 52, p. 24, § 61; Gasus Dosier-und Fördertechnik GmbH v. the Netherlands, judgment of 23 February 1995, Series A no. 306-B, pp. 46-47, § 55, and p. 49, § 62; Pressos Compania Naviera S.A. and Others, cited above, pp. 21-22, § 33; and Phocas v. France, judgment of 23 April 1996, Reports 1996-II, pp. 541-42, § 51). 50. The Conseil d'Etat 's judgment of 30 October 1996 deprived the applicant company of its right to have its claim for reimbursement of the amount it had overpaid in VAT examined. The Court further notes that in its first judgment of 26 February 1986 the Conseil d'Etat refused to uphold the applicant company's claim, notwithstanding the provisions of the Sixth Directive and of the administrative circular of 2 January 1986 which exempted insurance brokers from the obligation to pay VAT for the period from 1 January to 30 June 1978. In that connection, it is noteworthy that the administrative circular concerned only taxpayers who had received a supplementary tax assessment for failing to pay the VAT in issue. Those decisions entailed an interference with the right which the applicant company was entitled to assert under Community law and the applicable administrative circular for the reimbursement of debt and, consequently, with the right of all persons, and in particular the applicant company, to the peaceful enjoyment of their possessions. 51. The Court notes that the applicant company complained that it had been deprived of its possessions within the meaning of the second sentence of the first paragraph of Article 1. It is true that an interference with the exercise of claims against the State may constitute such a deprivation of possessions (see Pressos Compania Naviera S.A. and Others cited above, p. 22, § 34). However, as regards the payment of a tax, a more natural approach might be to examine the complaints from the angle of a control of the use of property in the general interest “to secure the payment of taxes”, which falls within the rule in the second paragraph of Article 1 (see Building Societies, cited above, p. 2353, § 79). The Court considers it unnecessary to decide this issue, since the two rules are not “distinct” in the sense of being unconnected, are only concerned with particular instances of interference with the right to peaceful enjoyment of property and must, accordingly, be construed in the light of the principle enunciated in the first sentence of the first paragraph. The Court will therefore examine the interference in the light of the first sentence of the first paragraph of Article 1. C. Whether the interference was justified 52. For the purposes of the first sentence of the first paragraph, the Court must determine whether a fair balance was struck between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights (see Sporrong and Lönnroth, cited above, p. 26, § 69). 1. The general interest 53. The applicant company rejected the Government's submission that the requirement of lawfulness had been complied with, contending that it was contrary to that requirement to allow the “classification of proceedings” rule to prevail over the rule that Community directives enjoyed primacy. It submitted in particular that the “classification of proceedings” rule and the estoppel by record relied on by the Government were only relative in scope, as had being confirmed by recent decisions of the Conseil d'Etat and the CJEC. It should therefore have been allowed to assert the rights it held by virtue of a Community directive. Since it had been prevented from obtaining satisfaction from the tax courts when the first judgment was delivered in 1986, it had been obliged to issue a second set of proceedings for compensation in order to obtain satisfaction. 54. The Government argued that even assuming, purely for the sake of argument, that the applicant company had been deprived of a legitimate expectation by the decisions of the domestic courts, those decisions complied with the lawfulness requirement and constituted a proportionate measure taken in the public interest. As regards compliance with the lawfulness requirement, the Government said in particular that the claim had been dismissed on the basis of established jurisprudential principles applicable to both private and public law. In ruling that the applicant company's claim was estopped per rem judicatam as a result of its first judgment of 1986, the Conseil d'Etat had applied the “classification of remedies” rule, which prevented a party from bringing an action under the general law of tort for a remedy it had been refused under a special procedure. The justification for the rule lay in the need to ensure compliance with special rules applicable to contentious proceedings, or at least to prevent their being circumvented in a way that rendered them meaningless. Without such a rule, there was a risk of identical situations been treated differently and of a direct breach of the res judicata rule. Lastly, with regard to the compatibility of the “classification of remedies” rule with Community law, the Government argued that the decision of the CJEC in Emmott (C-208/90, Emmott v. Minister for Social Welfare and Attorney General [1991] ECR I-4269) was no longer good law, as, since its Fantask decision of 2 December 1997 (C-188/95, Fantask and others v. Industriministeriet [1997] ECR I-6783), the CJEC now accepted that, subject to certain conditions, it was for the domestic legal system of each member State to lay down the detailed procedural rules for actions seeking the recovery of sums wrongly paid. The “classification of remedies” rule was not, therefore, at variance with the CJEC's case-law. The Government also maintained that the administrative circular took the general interest into account and answered the need to ensure the primacy of Community law. 55. The Court considers that the administrative circular of 2 January 1986 was intended to bring domestic law into line with the relevant provisions of the Sixth Directive of 1977. That, in the Court's view, is clearly a legitimate objective consistent with Article 1 of Protocol No. 1. 56. With regard to the judgments of the Conseil d'Etat, the Court notes that the Government's case is based on the application of an established jurisprudential principle, namely the “classification of remedies” or “classification of proceedings” rule. The rule prevents a claim being brought under the general law of tort for a remedy that has previously been refused in a special form of action. According to the Government, the Conseil d'Etat had merely applied that rule when it held that the first judgment of 1986 gave rise to an estoppel by record. With regard to the argument concerning the application of the “classification of remedies” rule, the Court need only refer to its preceding observations (see paragraph 47 above) and sees no reason to adopt a different approach when assessing the “general interest”. Furthermore, in the circumstances of the present case the Conseil d'Etat 's particularly strict interpretation of that procedural rule deprived the applicant company of the sole domestic procedure that was capable of affording it a sufficient remedy to ensure compliance with the provisions of Article 1 of Protocol No. 1 (see, mutatis mutandis, Miragall Escolano and Others v. Spain, nos. 38366/97, 38688/97, 40777/98, 40843/98, 41015/98, 41400/98, 41446/98, 41484/98, 41487/98 and 41509/98, § 38, ECHR 2000-I). The Court can discern no other reason that could serve to justify on general-interest grounds the Conseil d'Etat 's refusal to give effect to a directly applicable provision of Community law. As to the CJEC's Fantask judgment cited by the Government (see paragraph 54 above), the Court fails to see why it should offer any justification either, since it deals with time-limits for appeals and reliance on limitation periods under national law to resist actions for repayment of charges when they become payable, and not, as in the instant case, a refusal to take the right to reimbursement itself into account (see paragraph 36 above). 57. In any event, the Court notes that the interference resulted not from any legislative intervention, but on the contrary from the legislature's failure to bring the domestic law into line with a Community directive, such that the relevant administrative courts were forced to rule on that issue. The Court can but note that charging VAT on the activities of insurance brokers for the period from 1 January to 30 June 1978 contravened Article 13-B-a of the Sixth Directive of the Council of European Communities of 17 May 1977. The French authorities sought to render French law compliant by issuing the administrative circular of 2 January 1986. In its judgment of 19 March 1986, the Conseil d'Etat likewise failed to have due regard to the effects of the incompatibility of French law with Community law, notwithstanding the applicant company's failure to draw its attention to that point. The Court further notes that the Conseil d'Etat 's case-law regarding verification of the conformity of national law with international law has substantially evolved since 1989 (see paragraphs 39-40 above) and that the applicant company successfully appealed to the Paris Administrative Court of Appeal (see paragraphs 21-22 above). It further notes that the domestic authorities appear to have had difficulty in comprehending Community law, a fact that is, incidentally, confirmed by the Conseil d'Etat 's reference in its S.A. Revert et Badelon decision to “... [the] failure [of the French authorities] to enact provisions that were consistent with the objectives of the Sixth Directive on time”. Thus, the administrative circular bringing French law into line with the Sixth Directive was not issued until 2 January 1986, that is to say more than seven years after the Ninth Directive was notified to the French State (see paragraph 11 above), and in any event concerned only those taxpayers who had refused to the pay the VAT concerned. It is true that the Government have explained that by not referring to the case of taxpayers who had already paid the VAT, the administrative circular left open the possibility of a court action for reimbursement. However, the Conseil d'Etat did not share that view, as it dismissed the applicant company's first appeal more than two and a half months after the administrative circular was issued. Lastly, the Court notes that the Court of Cassation – the highest ranking judicial court – has for its part already accepted that it has jurisdiction to verify whether a domestic norm is consistent with international law (see paragraph 41 above). In the Court's view, the applicant company cannot be required to suffer the consequences of the difficulties that were encountered in assimilating Community law or of the divergences between the various national authorities. 58. In the light of the foregoing, the Court finds that the interference with the applicant company's right to the peaceful enjoyment of its possessions was not required in the general interest. 2. Whether a fair balance was struck between the competing interests 59. The applicant company said that there was no justification for the interference with its right to the peaceful enjoyment of its possessions, as the judgment dismissing its appeal in 1986 had been preceded by the administrative circular of 2 January 1986, which itself did no more than conform to the requirements of the Sixth Directive of 1977. Nor was the interference justified by the 1996 judgment, as the Conseil d'Etat had dismissed the applicant company's second appeal merely on the grounds that it was inadmissible, without ruling on the merits. The applicant company submitted that no estoppel by record had arisen, since there had been no identity of subject matter between its actions for restitution of the VAT and in tort: the former was based on the failure to transpose the Sixth Directive within the prescribed period, while the latter concerned the application of invalid statutory provisions. The applicant company also explained that it was prevented by law from effecting a set-off between VAT and employment tax and that three expert witnesses had attested that it could not pass on to its customers the VAT it had paid. The applicant company observed that, contrary to Article 1 of Protocol No. 1 and the Court's case-law, it had ultimately been deprived of any compensation from the French authorities, as it had been its misfortune to have its tax appeal heard prematurely and to be denied the guarantees enjoyed by S.A. Revert et Badelon. It therefore contended that it had been a victim of the difficulties caused by the Conseil d'Etat 's case-law, which it said constituted an “individual and excessive burden” such that “the fair balance which should [have been] struck between the protection of the right of property and the requirements of the general interest [had been] upset” (see Hentrich v. France, judgment of 22 September 1994, Series A no. 296). 60. As to whether the restriction on the applicant company's rights struck a fair balance between the competing interests, the Government said, inter alia, that the Conseil d'Etat had stood by its established principles for two reasons. Firstly, the fact that the applicant company had restricted its action to a tax appeal had not deprived it of the possibility of asserting its rights. Secondly, to have made an exception would have meant unreasonably undermining the principle of legal certainty. Lastly, the Government noted that, since the applicant company had shown that the “classification of remedies” principle was relative in its effects, in particular owing to the requirement for identity of subject matter, it could have taken that factor into account when preparing its second appeal and based its claim not on the VAT paid, an issue that had been dealt with in 1986, but on the commercial and financial damage actually sustained. Thus, the inadmissibility of the applicant company's appeal was the result of its choice of cause of action and had by no means been inevitable. The administrative circular was based on an objective difference in the situation of the companies concerned. Furthermore, it had not placed exempted companies in a radically different situation from those that were not: companies such as the applicant company that had been charged VAT could deduct the VAT they had paid and pass it on to their customers, notably by increasing the prices they invoiced for their services. While it was true that the exempted companies had the benefit of the unpaid VAT, the corollary of that was that they could not pass it on to their customers. The complaint was therefore in any event manifestly ill-founded. 61. The Court finds that in the instant case the interference with the applicant company's right to the peaceful enjoyment of its “possessions” was disproportionate. Both the negation of the applicant company's claim against the State and the absence of domestic procedures affording a sufficient remedy to ensure the protection of the applicant company's right to the peaceful enjoyment of its possessions upset the fair balance that must be maintained between the demands of the general interest of the community and the requirements of the protection of the individual's fundamental rights (see, mutatis mutandis, Phocas, cited above, pp. 544-45, § 60). D. Conclusion 62. Consequently, there has been a violation of Article 1 of Protocol No. 1. II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 1 OF PROTOCOL No. 1 63. The applicant company alleged a violation of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1. Article 14 provides: “The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” 64. The applicant company submitted that by adopting the administrative circular abandoning proceedings against companies that had not paid the VAT, the authorities had been guilty of discrimination by giving those who had defaulted on their tax an advantage over law-abiding taxpayers; that discrimination had been compounded by the authorities' failure to take action to refund the sums which the law-abiding taxpayers had paid in error. It pointed out that in National & Provincial Building Society, the Court held that there had been no violation after noting that the applicant building societies had failed to take proceedings challenging the regulations in issue and were accordingly not in the same situation as that of the Woolwich Building Society. It noted that although in Fredin v. Sweden the Court had found no violation of Article 14, on the ground that different classes of complainants could be created (judgment of 18 February 1991, Series A no. 192), it had ruled that a distinction made to the detriment of persons whose situations were similar was discriminatory (see Darby v. Sweden, judgment of 23 October 1990, Series A no. 187). In the instant case, the applicant company said that it was in an identical situation to all those companies carrying on business as insurance brokers who had not paid VAT for 1978 by the time the administrative circular was issued on 2 January 1986. The difference in treatment was directly attributable to the administrative circular, which excluded from its ambit only those businesses that had paid VAT voluntarily. While it was true that the latter were entitled to request a refund of the VAT, the Conseil d'Etat had dismissed the applicant company's claim for such a refund. In practice, an application for judicial review of the administrative circular, which as a regulatory circular was in any event not amenable to such review, would have had no effect. The applicant company argued that the administrative circular did not pursue a legitimate aim and that the means used were not reasonably proportionate to the aim pursued. If the purpose of the administrative circular had been to transpose the Sixth Directive of 1977 into domestic law, there was no justification for the difference in treatment between the companies concerned by the Sixth Directive. Those companies that had voluntarily paid the VAT, even though it had been levied unlawfully, had not received any benefit in exchange. Lastly, the applicant company contended that it had received less favourable treatment than S.A. Revert et Badelon. Both companies had paid the same tax, made an initial claim for a refund, appealed to the administrative court and, following the dismissal of their claims, lodged almost simultaneous appeals to the Conseil d'Etat in 1982. The Conseil d'Etat had dismissed the applicant company's appeal in 1986, whereas S.A. Revert et Badelon's appeal papers had been lost and consideration of the appeal consequently delayed until it was set down for hearing at the same session as the applicant company's second appeal. The Conseil d'Etat reached different decisions in the two cases, notwithstanding the fact that the legal position of the two companies was identical, the sole difference being that S.A. Revert et Badelon's case file had been mislaid by the Conseil d'Etat for several years. The appeal by S.A. Revert et Badelon was not heard until ten years after the applicant company's and it benefited from favourable developments in the case-law. 65. The Government considered that neither the decisions of the Conseil d'Etat nor the administrative circular adopted on 2 January 1986 by the tax authorities amounted to discrimination. The decisions in the applicant company's case and in S.A. Revert et Badelon did not concern the same issue of law or appellants in identical situations. The European Court of Human Rights had held that there could be no discrimination unless the difference in treatment concerned persons in identical situations (see Lithgow and Others v. the United Kingdom, judgment of 8 July 1986, Series A no. 102, and Johnston and Others v. Ireland, judgment of 18 December 1986, Series A no. 112). The Government noted that the appeals lodged concurrently with the applicant company's first appeal had likewise been dismissed. Nonetheless, the Government accepted that the 1986 decisions of the Conseil d'Etat on the applicant company's appeal and its decision on Revert et Badelon's appeal were at variance. The reason for the difference was that the Conseil d'Etat, which in this instance had identical arguments before it, decided in the second case – which, ten years after the first, raised the same question of law – to depart from its previous case-law. Changes in the case-law, which by definition entailed a conflict between decisions delivered before and after the change, could not be regarded as violating Article 14. For them to be regarded otherwise would be contrary to the Court's traditional interpretation of the provisions of Article 14 (see Case relating to certain aspects of the laws on the use of languages in education in Belgium (merits), judgment of 23 July 1968, Series A no. 6). The Government said that the indisputable effect of the administrative circular of 2 January 1986 was to put the applicant company in an ostensibly less favourable position than that of the companies referred to in the circular. As the “ Belgian linguistic ” case showed, the Court took into consideration the extent of the difference in treatment and whether it was proportionate to the situation of the persons concerned. The States thus enjoyed a margin of appreciation that varied according to the circumstances, the domain and the background (see James and Others v. the United Kingdom, judgment of 21 February 1986, Series A no. 98). In the instant case the administrative circular had been issued because of the primacy of the Community norm, in accordance with an undertaking given to the Commission of the Communities. The circular was therefore in the public interest and satisfied an existing legal obligation, but without depriving the companies concerned of their prospects of recovering the tax in the pending legal proceedings. Furthermore, the difference in treatment was based on an objective difference in the situation of the companies concerned. Some of the companies had decided not to seek a refund of the tax, while others had made an application to the courts for a refund which, in view of the genuine doubt as to the validity of the tax liability, the authorities had, as in the instant case, quite legitimately left for the courts to decide in the proceedings that were pending at that stage. Lastly, the authorities had logically enough, in view of the high degree of uncertainty over their outcome, chosen not to issue proceedings against those companies that had simply refrained from paying the tax. The Government noted that the Court had recognised that it was legitimate for public authorities to treat companies differently, depending on whether or not the company concerned had chosen to bring proceedings (see National & Provincial Building Society, cited above). Lastly, the Government argued that the difference in treatment had to be put into perspective, since companies which, like the applicant company, had paid the VAT had enjoyed an exemption from employment tax and had been able to pass on all or part of the VAT to their customers, unlike the companies that had not paid the VAT. 66. In the light of its finding in paragraphs 61 and 62 above, the Court considers that no separate examination of this complaint is necessary. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 67. 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 68. The applicant company sought payment of the sum of 291,816 French francs (FRF), being the amount of VAT it had paid for the year 1978. As regards the Government's argument that it would have had to pay employment tax had it enjoyed an exemption from VAT, the applicant company referred to the relevant provisions of the Code of Tax Procedure, which precluded any set-off between employment tax and VAT. As to the possibility of passing the VAT on to its customers, it produced, inter alia, three witness statements that showed that brokers' remuneration took the form of commission paid directly and exclusively by the insurance companies without any payment on the part of the insured, such that VAT that had been paid could not be passed on. 69. The Government submitted that any damage to which the applicant company might be entitled was not the sum it had paid in VAT for 1978 but that sum less both the employment tax it would have had to pay had it enjoyed an exemption from VAT and the amount of VAT it had passed on to customers in its price lists. The Government added that they were unable to state the exact amount of employment tax concerned, since the events in issue had taken place more than twenty years ago and the tax authorities had not retained the tax returns and other documents necessary to perform a calculation. 70. The Court finds that while the applicant company may have sustained non-pecuniary damage, the present judgment provides sufficient compensation for it. However, as regards pecuniary damage, in view of the violation which the Court has found of Article 1 of Protocol No. 1, the most suitable form of reparation would be reimbursement of the VAT that was unduly paid for the period from 1 January to 30 June 1978. As to the sums which the Government say should have been deducted from the VAT paid for 1978, the Court notes, firstly, that it has not been clearly demonstrated that employment tax would have been payable and, in any event, it is now impossible to calculate the amount. Secondly, the applicant company has produced witness statements that show that, owing to the nature of its activity, it could not pass on the VAT to its customers (see also, on this point, paragraphs 22 and 69 above). Above all, the Court observes that it has not been alleged, still less demonstrated (see paragraph 69 above), that such amounts were claimed from S.A. Revert et Badelon by way of set-off after its successful appeal to the Conseil d'Etat. Nor is there any reference in the Conseil d'Etat 's judgment to any obligation to deduct certain sums from the amount of the VAT that was to be refunded. The applicant company has furnished documents showing that the amount of VAT for the period in issue (taking into account the fact that there was a one month's gap before it received commission on the premiums enacted by the insurance companies) comes to FRF 142,568.09, that is to say 21,734.49 euros (EUR). In the light of the foregoing, the Court awards that sum to the applicant company for pecuniary damage. B. Costs and expenses 71. The applicant company sought payment of FRF 139,000 net of tax, that is to say EUR 21,190,41, for the costs and expenses it had incurred in the Administrative Court, the Paris Administrative Court of Appeal, the Conseil d'Etat and the European Court of Human Rights. 72. The Government contended that those amounts were excessive, since the decisions which the applicant company alleged were at the origin of its loss, namely the decisions delivered by the Conseil d'Etat as a final court of appeal and the administrative circular of 2 January 1986, had at no stage been contested before the domestic courts. Accordingly, only the costs incurred before the Convention institutions could, subject to being proved, be taken into account. 73. The Court points out that it has already ruled in its decision of 12 September 2000 that the applicant company has satisfied the rule on the exhaustion of domestic remedies, notably as regards any need to appeal against the administrative circular itself. As a subsidiary consideration, the Court has found no statutory provision of domestic law that would allow a decision delivered by the Conseil d'Etat as a final court of appeal to be challenged. It cannot, therefore, be contended that the applicant company has failed to refer its complaints to the relevant courts. On the contrary, in its second appeal, it expressly sought an order for the reimbursement of the overpaid VAT and, accordingly, reparation from the domestic courts for the complaint it has made to the Court. As regards the amount of the applicant company's claim, the Court finds that it has been substantiated by Mr Garreau, who defended the applicant company's interests before the Court, the Administrative Court, the Administrative Court of Appeal and the Conseil d'Etat. Accordingly, the Court awards the applicant company EUR 21,190.41 for costs and expenses. C. Default interest 74. 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 4.26% per annum. | The Court held that there had been a violation of Article 1 (protection of property) of Protocol No. 1. It noted in particular that on both its applications the applicant company was a creditor of the State on account of the VAT wrongly paid for the period 1 January to 30 June 1978 and that in any event it had at least a legitimate expectation of being able to obtain a refund. The Court found that the interference with the applicant’s possessions did not satisfy the requirements of the general interest and that the interference with the applicant’s enjoyment of its property was disproportionate because its inability to enforce its debt against the State and the lack of domestic proceedings providing a sufficient remedy to protect its right to respect for enjoyment of its possessions upset the fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights. Just satisfaction: The Court decided that France was to pay the applicant company 21,734.49 euros in respect of pecuniary damage. |
654 | Political figures | RELEVANT LEGAL FRAMEWORK The Constitution 24. The relevant part of the Constitution of the Republic of Croatia ( Ustav Republike Hrvatske, Official Gazette no. 56/1990 with subsequent amendments) provides as follows: Article 16 “(1) Rights and freedoms may be only restricted by law in order to protect the rights and freedoms of others, the legal order, public morals or health. (2) Any restriction of rights and freedoms should be proportional to the nature of the necessity for such restriction in each individual case. ...” Article 38 “(1) Freedom of thought and expression shall be guaranteed. (2) Freedom of expression shall include in particular freedom of the press and other media, freedom of speech and [the freedom] to speak publicly, and the free establishment of all media institutions. (3) Censorship shall be forbidden. Journalists shall have a right to freedom of reporting and access to information. (4) ... (5) The right to [demand a] correction shall be guaranteed to anyone whose rights guaranteed by the Constitution or by statute have been breached by information in the public domain.” Obligations Act 25. The Obligations Act ( Zakon o obveznim odnosima, Official Gazette, no. 35/05 with subsequent amendments), which has been in force since 1 January 2006, is the legislation governing contracts and torts. According to that Act, courts are entitled to award compensation for non-pecuniary damage caused, inter alia, by injury to one’s reputation and honour. The relevant provisions of the Obligations Act read as follows: Prohibition to Cause Damage Section 8 “Everyone shall refrain from taking any action which may cause damage to another [person].” Rights of personality Section 19 “(1) All natural persons or legal entities are entitled to the protection of their rights of personality ( prava osobnosti ) under the conditions provided by law. (2) Rights of personality within the meaning of this Act are the right to life, physical and mental health, reputation, honour, dignity, name, privacy of personal and family life, liberty, etc. (3) ...” Grounds for liability Section 1045(1) “Anyone who causes damage to another shall compensate it, unless he or she proves that the damage occurred through no fault of his or her own.” Damage Section 1046 “Damage is the diminution of one’s property (actual damage), prevention of its increase (lost profits), or a breach of a right of personality (non-pecuniary damage).” ... V. REDRESS FOR NON-PECUNIARY DAMAGE Publication of a judgment or correction Section 1099 “In the event of a breach of a right of personality the victim may seek, at the expense of the wrongdoer, publication of the judgment or of a correction, retraction of the statement that caused the breach, or any other form of redress capable of attaining the purpose [otherwise] achieved by an award of damages.” Non-pecuniary damages Section 1100 “(1) In the event of a breach of a right of personality, the court shall award non ‑ pecuniary damages if it finds that the severity of the breach and the circumstances of the case justify such an award, irrespective of any award of pecuniary damages, and even in the absence of pecuniary damage. (2) When deciding on the amount of non-pecuniary damages, the court shall take into account the intensity and duration of the physical pain, mental anguish and fear caused by the breach, the purpose of those damages, and [the requirement that] they should not favour aspirations that are incompatible with their nature and social purpose.” OTHER LEGISLATION 26. The relevant domestic law and practice concerning length ‑ of ‑ proceedings remedies in Croatia is set out in Mirjana Marić v. Croatia (no. 9849/15, §§ 29-41, 30 July 2020). Specifically, the relevant provisions of the 2005 Courts Act are set out in detail in Vrtar v. Croatia (no. 39380/13, § 51-56 and 61-64, 7 January 2016). THE LAW ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 27. The applicant complained that the Zagreb Municipal Court’s judgment of 23 December 2011 (as amended by the Zagreb County Court judgment of 26 October 2016) ordering him to pay damages for the injury caused to Mr Jurašinović’s reputation (see paragraphs 17 and 19 above) had constituted a violation of his freedom of expression. He relied on Article 10 of the Convention, which reads as follows: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” AdmissibilityThe parties’ arguments The parties’ arguments The parties’ arguments (a) The Government 28. The Government argued that Article 10 was inapplicable to the present case and that this complaint was, in any event, of a fourth-instance nature. 29. The Government averred that by making the impugned statement the applicant had not intended to impart ideas or incite a debate on an issue of public interest. Rather, his only intent had been to publicly insult Mr Jurašinović. Consequently, Article 10 was inapplicable in the present case (the Government referred to Rujak v. Croatia, no. 57942/10, 2 October 2012). 30. In the alternative, the Government submitted that in his application the applicant had challenged the factual findings of the domestic courts by claiming that his statement had not been an insult or made with the intention of causing offence, that it had constituted a value judgement, that it had been taken out of context and that nobody could have taken it literally. However, since it was not the Court’s task to substitute its own assessment of the facts for that of the domestic courts, the applicant’s complaint was of a fourth ‑ instance nature. (b) The applicant 31. The applicant replied that his statement had not been given without any context (which could have led to the conclusion that it had constituted a gratuitous personal attack on Mr Jurašinović). Rather, it had been made in reply to a question posed by journalists regarding Mr Jurašinović’s manifestly unfounded accusation, which had been made against him as the president of a sovereign country before the authorities of another State. By accusing the applicant of being a political patron of criminals and linking him to an incident of attempted murder, Mr Jurašinović had knowingly entered the public sphere and could have expected that such accusations would provoke the applicant into making a public response. By making the statement in question the applicant had sought to protect public confidence both in himself as a person and in the institution of President. His statement had thus concerned a matter of public interest. 32. The applicant furthermore maintained that his arguments were not of a fourth-instance nature. Before the Court he had argued that there had been an unjustified interference with his freedom of expression, as the domestic courts had not taken into account all the relevant circumstances and had failed to find a fair balance between the two conflicting rights at stake. He had thus not asked the Court to reassess evidence and establish the facts anew but to examine whether his freedom of expression guaranteed by the Convention had been violated. The Court’s assessment 33. The Court reiterates that an offensive statement may fall outside the protection of freedom of expression in very rare and exceptional circumstances where it amounts to wanton denigration and its sole intent is to insult. For example, in the Rujak case, where the applicant’s statement mostly concerned vulgar and offensive language, the Court, having formed its judgment on the basis of the context of those statements, held that he had not been trying to “impart information or ideas” but that his only intention had been to insult. The Court thus declared the applicant’s complaint under Article 10 of the Convention inadmissible as being incompatible ratione materiae (see Rujak, cited above). 34. In the Court’s view, such circumstances do not obtain in the present case. Taking into account the circumstances in which it was given, the Court finds that by his statement the applicant wished to deny serious allegations made against him in the criminal complaint prepared and lodged by Mr Jurašinović on behalf of his client (see also paragraph 45 and 51 below). It thus cannot be said that the applicant was not trying to impart any information or ideas and that his sole intent was to insult Mr Jurašinović. 35. It follows that the Government’s objection as regards the applicability of Article 10 of the Convention must be dismissed. 36. As regards the Government’s remaining argument as to how the applicant’s statement should be characterised (see paragraph 30 above), the Court considers that it will more appropriately be addressed at the merits stage (see paragraphs 80-81 and 98-101 below). 37. The Court furthermore 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’ arguments The parties’ arguments The parties’ arguments (a) The applicant 38. The applicant contended that the interference with his freedom of expression had not been lawful, that it had not pursued a legitimate aim and that it had not been proportionate. 39. As regards the lawfulness of the interference, the applicant submitted that the Government had not specified the provision(s) of the Obligations Act that had constituted the legal basis for the interference in question. He also argued that the damages that he had been ordered to pay had been of a punitive nature, in breach of the domestic law. 40. The interference had not pursued a legitimate aim because the domestic courts had given excessive weight to the protection of Mr Jurašinović’s reputation at the expense of the applicant’s freedom of expression. 41. The domestic courts in his case had not given relevant and sufficient reasons to justify the interference. Specifically, because those courts had not applied the relevant standards developed in the Court’s case-law, they had not properly weighed the two conflicting rights at stake and had thus failed to find a fair balance between them. The resultant interference had therefore not been proportional to the aim that it had sought to achieve. 42. The applicant submitted that his statement had been made in reaction to the accusation made by Mr Jurašinović linking him to an attempted murder and to organised crime. Accusing the President of a sovereign State of such a crime was certainly a matter of public interest. In replying to such accusation, he had not only sought to protect his own reputation but also the reputation of the office and the institution of the President of Croatia and the reputation of the State itself. 43. By making such an accusation Mr Jurašinović had initiated a debate on an issue of public interest and must have been aware of the effects it would have on public opinion. He had thus consciously entered the public sphere. 44. As regards the Government’s argument that the accusation in question had not been made publicly (see paragraph 56 below), the applicant pointed out that Mr Jurašinović had confirmed to journalists that he had lodged a criminal complaint containing the accusation (see paragraph 9 above). The applicant also wondered how the journalists had learned of the content of the criminal complaint. 45. The applicant furthermore submitted that his statement had been an ironic comment and that he had used a “personified metaphor” ( koristeći se personificiranom metaforom ) and, as such, a value judgment made in reply to completely unfounded serious allegations against him. It could thus not be understood literally, as a statement of fact and/or as a gratuitous personal attack on Mr Jurašinović. The applicant therefore had not needed to prove the veracity of his metaphorical statement. He pointed out that according to the Court’s case-law, freedom of expression applied to sarcastic statements as well as to those that offended, shocked or disturbed (the applicant cited Katrami v. Greece, no. 19331/05, §§ 33-42, 6 December 2007, and Hertel v. Switzerland, 25 August 1998, § 46, Reports of Judgments and Decisions 1998 ‑ VI). 46. In this respect the applicant pointed out that he himself had been called an “idiot” by one of his political opponents in a newspaper article and that he had instituted criminal proceedings for defamation as a private prosecutor against that politician. Although the criminal courts had ruled in his favour, the Constitutional Court had overturned their judgments, classifying the statement of the accused as a value judgment; that is to say the Constitutional Court had taken a legal view diametrically opposite to its own view in the present case. 47. As regards the consequences that his statement had allegedly had for Mr Jurašinović’s reputation (see paragraph 14 above), the applicant submitted that they had been grossly exaggerated by Mr Jurašinović and were difficult to believe. The applicant furthermore argued that the consequences of the accusation levelled against him would have been far greater if it had remained unanswered than the consequences allegedly suffered by Mr Jurašinović on account of the applicant’s statement in reply. 48. Accusing someone of sponsoring a murder could not be considered as the kind of criticism for which politicians should have unlimited and unconditional tolerance. Accordingly, the expectation that political figures should display a higher level of tolerance than would be expected of non ‑ public figures did not mean that they had to refrain from replying to criticism against them – especially to wholly unfounded and very serious accusations, such as the one in the present case. That had been confirmed by the Court which in its case-law had often pointed out that the Government should, instead of resorting to criminal proceedings, use other means available for replying to the unjustified attacks and criticisms of its adversaries or the media (the applicant referred to Castells v. Spain, 23 April 1992, § 46, Series A no. 236). 49. As regards the comments by Mr Jurašinović as an interested third party (see paragraphs 64-73 below), the applicant firstly pointed out that the content of the criminal complaint and the reasons for lodging it had been unknown to him before Mr Jurašinović had mentioned them in his comments before the Court (see paragraphs 7 and 10 above and paragraph 65 below); secondly, the accusations contained therein had been completely unfounded and that their nature actually demonstrated how absurd and arbitrary they had been. 50. As regards the comments made by the remaining two interveners (see paragraph 74 below), the applicant submitted that they had been completely misplaced and irrelevant because the present case concerned his own freedom of expression, and not that of Mr Jurašinović, which had not been restricted in any way. In any event, linking – in a criminal complaint – a State President with attempted murder and organised crime without any evidence and then leaking those accusations to the media with a view to tarnishing the President’s reputation and creating a negative public opinion of him and thereby putting pressure on the courts, went beyond the freedom of expression enjoyed by advocates in the exercise of their profession. 51. Lastly, the applicant vehemently denied as absurd the suggestion made by all the interveners that by his statement he had intended to discredit Mr Jurašinović and to threaten him with involuntary psychiatric confinement so that he would stop representing his client. He reiterated that his statement had merely been an ironic reply to serious and baseless accusations made publicly against him (see paragraph 45 above). (b) The Government 52. The Government submitted that, if the Court were to find Article 10 of the Convention applicable in the present case, they would not deny that there had been an interference with the applicant’s freedom of expression. However, the interference in question had been in accordance with the law, it had pursued a legitimate aim, and it had been necessary in a democratic society. 53. The interference had been lawful because the domestic courts’ judgment ordering the applicant to pay non-pecuniary damages to Mr Jurašinović had been based on section 1045(1) of the Obligations Act (see paragraph 25 above). It had also pursued the legitimate aim of protecting the reputation and the rights of others – namely the reputation of Mr Jurašinović. It had also been “necessary in a democratic society”, having regard to the criteria established in the Court’s case-law (the Government cited Axel Springer AG v. Germany [GC], no. 39954/08, §§ 89-95, 7 February 2012) for determining whether the requisite balance had been struck between the freedom of expression and the right to respect for private life. 54. The applicant’s statement (implying that Mr Jurašinović needed psychiatric treatment) had not imparted information of public interest. In that respect the Government referred to the domestic courts’ finding that it was unacceptable to state publicly that someone should be treated for a mental illness or disorder since that was a personal matter and not the kind of information that anyone would be allowed to disclose, let alone suggest treatment for such illness (see paragraph 17 above). The applicant had thus disclosed information about the health of Mr Jurašinović that had had nothing to do with the public interest, and the public had not in any way benefitted from the false information that Mr Jurašinović should be treated in a psychiatric hospital. 55. Mr Jurašinović was an advocate of Croatian origin living and practicing in France. Although he had appeared in the media by virtue of his profession, it could not be said that he was known to the wider public. Thus, he could not be considered a public figure and as such be expected to have a greater degree of tolerance of criticism. Even though he was himself a lawyer, the applicant had also failed to take into account the fact that Mr Jurašinović had lodged the criminal complaint as an advocate acting on behalf of his client. 56. The allegation that had provoked the impugned statement had thus not been made publicly, and nor had it been intended for a public readership. Likewise, the content of the said criminal complaint had not been disclosed by Mr Jurašinović, who had only confirmed to the above-mentioned journalists that he had lodged it in his capacity as an advocate acting on behalf of his client, and had refrained from making any further comments (see paragraph 9 above). The Government also stressed that a criminal complaint was a legal instrument whereby the person lodging it merely expressed the suspicion that a criminal offence had been committed, thus bringing that alleged offence to the attention of the prosecuting authorities, in order that they might investigate whether that suspicion was well- or ill ‑ founded. 57. The domestic courts had held that the applicant’s statement had constituted a statement of fact and not a value judgment. That statement had been unsubstantiated and completely untrue, and its sole intent had been to insult. As regards the applicant’s argument that his statement had been purely metaphorical in nature and as regards his reference to the Court’s case-law (see paragraph 45 above), the Government submitted that the present case concerned neither criminal proceedings nor journalistic freedom (which could allow, to a certain degree, for exaggeration and even provocation). 58. The award that the applicant had been ordered to pay, which amounted to two of his monthly salaries as President, had not been disproportionate. Being publicly portrayed by the State President as “a crazy lawyer who belongs in a mental institution” had had harmful consequences for Mr Jurašinović’s professional and private life, which he had described before the domestic courts (see paragraph 14 above). The domestic courts had accepted that such statements could indeed lead to such consequences and held that words spoken by the State President carried more weight than words spoken by ordinary people. In making the award those courts had taken into account the intensity and duration of the emotional distress suffered by Mr Jurašinović, as well as numerous unpleasant situations that he had been faced with in his professional environment. The level of damages the applicant had been ordered to pay had also to be seen in the light of the fact that his statement had not been in the public interest (in that connection they referred to the arguments set out in paragraphs 29 and 54 above). For those reasons the damages that the applicant had been ordered to pay could not have had a chilling effect on his freedom of expression. 59. Having regard to the foregoing (see paragraphs 52-58 above), the Government argued that the domestic courts had undertaken a balancing exercise in conformity with the criteria laid down in the Court’s case-law, and had struck the right balance between freedom of speech and the public interest on the one hand, and the rights of Mr Jurašinović under Article 8 of the Convention on the other. Moreover, the reasons that those courts had set out in their decisions had been relevant and sufficient. Thus, there were no strong reasons for the Court to substitute its view for that of the domestic courts. 60. The Government then went on to argue that the expectation that political figures should display a higher level of tolerance than would be expected of non-public figures did not only mean that they should refrain from instituting criminal or civil proceedings against persons who may have tarnished their reputation. Rather, it also meant that they must sustain from replying to such criticism in a manner that may be injurious to the reputation of those who had offended them in the first place. 61. The Court had often in its case-law warned of the importance of the public officials’ choice of words – for example in cases concerning the presumption of innocence (they referred to Peša v. Croatia, no. 40523/08, §§ 138-51, 8 April 2010). 62. The applicant, as a high-ranking official, should have therefore chosen his words with particular care and reacted in a different way to the allegation articulated in the above-mentioned criminal complaint. In other words, he should have refrained from insulting the advocate who had lodged that complaint on behalf of his client in the exercise of his professional duty and who was not obliged to tolerate criticism to the same extent as the applicant. 63. The Government fully endorsed the arguments of the third parties (see paragraphs 64-74 below) – in particular that of Mr Jurašinović emphasising the fact that the allegation that had provoked the applicant’s statement had not been made publicly and that neither had Mr Jurašinović made it available to the public. They reiterated their position that politicians were obliged to show greater tolerance of criticism than would be expected of non-public figures – especially if it had not been voiced publicly, as in the present case. The applicant should have therefore refrained from making the impugned disparaging statement (the only goal of which had been to harm the reputation and honour of Mr Jurašinović). (c) The third-party interveners (i) Mr Jurašinović 64. Mr Jurašinović submitted that he had an interest in intervening in the present case both in his professional capacity as an advocate, and in his private capacity as the victim of the applicant’s statement, which had been injurious to his reputation. 65. He firstly explained in greater detail the reasons for his lodging the criminal complaint on behalf of his client, gave certain details regarding its content (see paragraph 7 above), and the reasons behind the media interest that it had it attracted (see paragraph 10 above). 66. He then emphasised that he had lodged the criminal complaint in question in his professional capacity, namely as the advocate of his client, M.T., in respect of certain facts that could be interpreted as constituting a criminal offence. The French authorities had then opened an investigation that had lasted several years. 67. Mr Jurašinović furthermore stressed that he had not made any public statement as regards the applicant. When the journalists had enquired about the criminal complaint that he had lodged on behalf of his client, he had merely confirmed that the complaint had indeed been lodged against certain Croatian nationals. He had not mentioned their names as he had been bound to maintain the secrecy of the investigation. 68. In view of this it could not be argued, as the applicant had (see paragraph 43 above), that by his actions Mr Jurašinović had consciously entered the public sphere and opened himself to criticism. For that reason the present case could not be compared to those concerning politicians (including the applicant – see paragraph 46 above) who had been publicly criticised, often by other politicians. 69. As regards the question of how journalists had learned of the criminal complaint and its contents, Mr Jurašinović had only mentioned that his client had retained one copy of it. 70. When replying to the journalists’ question about his links with H.P., the applicant had targeted him personally instead of his client. In so doing he had used a harsh medical metaphor that had a meaning for all Croats who had lived under the Communist regime. Involuntary psychiatric confinement had been a method of silencing political opponents in many Communist countries and the former Yugoslavia had not been an exception (he referred to Amnesty International’s 1982 report and noted that the applicant had been the last President of Yugoslavia). 71. By threatening him with involuntary psychiatric confinement the applicant had sought to discredit him and to force him to abandon the defence of his client. 72. As regards the applicant’s argument that the impugned statement had concerned a matter of public interest (see paragraph 42 above), Mr Jurašinović contended that while the possible involvement of a State President in an attempted murder had certainly been a matter of public interest, the applicant had failed to explain how the above-mentioned offensive and menacing statement – directed at him as an advocate and not at his client – had contributed to a constructive debate on that matter. 73. Mr Jurašinović furthermore submitted that finding a violation of Article 10 in the present case would affect his reputation as an advocate because it would amount to professional criticism. It would also deny the harm that he had suffered on account of the applicant’s statement (see paragraph 14 above), which had been redressed by the domestic courts. (ii) The National Bar Council and the Paris Bar Association 74. The interveners, referring to a number of cases in which the Court had emphasised the need to protect the freedom of expression of advocates, argued that the Court should find that condemnation by the domestic courts of a person who made menacing statements against an advocate for doing his job did not constitute a violation of Article 10 of the Convention, as such interference pursed a legitimate aim, was proportional, and was necessary in a democratic society. The absence of sanctions against intimidating or menacing statements or threats against advocates, especially if such statements came from influential public figures, could compel advocates to abandon the defence of their clients and could thus have serious consequences for the rights of defence and the right of access to a court, which were essential components of the right to a fair trial guaranteed by Article 6 § 1 of the Convention. The Court’s assessment (a) As to whether there was an interference 75. The Court notes that in its judgment of 23 December 2011 (which was amended by the Zagreb County Court’s judgment of 26 October 2016), the Zagreb Municipal Court held that the applicant’s statement of 10 November 2006 (see paragraph 11 above) had been injurious to the reputation of Mr Jurašinović and ordered the applicant to pay him HRK 50,000 (approximately EUR 6,660 at the material time) in compensation for the resultant non-pecuniary damage, as well as HRK 6,057 (approximately EUR 806 at the material time) in costs (see paragraphs 17 and 19 above). 76. In the light of its above finding that the applicant may rely on Article 10 of the Convention in the present case (see paragraphs 33-34 above), and having regard to its case-law (see, for example, Stojanović v. Croatia, no. 23160/09, § 56, 19 September 2013), the Court finds that the judgment in question constituted an interference with the applicant’s right to freedom of expression, as guaranteed by Article 10 § 1 of the Convention. (b) Lawfulness and legitimate aim 77. As to the lawfulness of the interference in question, the Court notes that it had a legal basis in domestic law as it was based on the relevant provisions of the Obligations Act (see paragraphs 17 and 25 above). The Court also considers that the legislation in question met the qualitative requirements of accessibility and foreseeability. It is therefore satisfied that the interference with the applicant’s freedom of expression was “prescribed by law”, as required by Article 10 § 2 to the Convention. 78. The Court likewise accepts that the interference pursued a legitimate aim, as it was intended to protect the reputation or rights of others – namely the reputation of Mr Jurašinović. 79. Having established that the interference with the applicant’s freedom of expression in the present case was lawful and pursued a legitimate aim, the only remaining question for the Court to determine is whether it was “necessary in a democratic society”. (c) “Necessary in a democratic society” (i) General principles 80. In determining whether an interference with the freedom of expression was “necessary in a democratic society” the Court’s task is to review the decisions of the competent national authorities by examining whether the reasons they adduced to justify the interference were relevant and sufficient. In doing so, the Court has to satisfy itself that those authorities applied standards that were in conformity with the principles embodied in Article 10 and relied on an “acceptable assessment of the relevant facts” (see, among many other authorities, Perinçek v. Switzerland [GC], no. 27510/08, § 196, ECHR 2015 (extracts)). 81. It is not the Court’s task to substitute its own assessment of the facts for that of the domestic courts, and as a general rule it is for those courts to assess the evidence before them. Although the Court is not bound by the findings of domestic courts, in normal circumstances it requires cogent elements to lead it to depart from the findings of fact reached by those courts (see, for example, Europapress Holding d.o.o. v. Croatia, no. 25333/06, § 62, 22 October 2009, and Stojanović, cited above, § 65). It has, however, held that such elements exist in cases where the decisions of the domestic authorities were not based on “an acceptable assessment of the relevant facts” (see, for example, Stojanović, cited above, § 70, and Chemodurov v. Russia, no. 72683/01, §§ 28-29, 31 July 2007), 82. The Court has consistently held that when examining whether there is a need for an interference with freedom of expression in a democratic society in the interests of the “protection of the reputation ... of others”, it may be required to ascertain whether the domestic authorities have struck a fair balance when protecting two values guaranteed by the Convention that may come into conflict with each other in certain cases – namely on the one hand freedom of expression, as protected by Article 10, and on the other the right to respect for private life enshrined in Article 8 (see, among many other authorities, Axel Springer AG, cited above, § 84). 83. However, in order for Article 8 of the Convention to come into play, an attack on a person’s reputation must attain a certain level of seriousness and its manner must cause prejudice to personal enjoyment of the right to respect for private life (ibid., § 83). The Court therefore first needs to examine whether Mr Jurašinović’s Article 8 rights were engaged, in order to determine whether the applicant’s Article 10 right is to be balanced against Mr Jurašinović’s Article 8 right to protection of his reputation. (ii) Application of the above-mentioned principles to the present case 84. The Court notes that the applicant stated that Mr Jurašinović needed psychiatric treatment (see paragraph 11 above). The applicant made that statement when he was the State President, and it was widely distributed by various media outlets (see paragraphs 5 and 12 above). Therefore, regardless of whether that statement should have been understood literally (as the domestic courts held – see paragraphs 17 and 19 above) or metaphorically (as the applicant submitted – see paragraph 45 above) – which is a matter to be examined below (see paragraph 99) – the Court accepts that it was not only capable of tarnishing the reputation of Mr Jurašinović, but also of fomenting prejudice against him in both his professional and social environments. Accordingly, the Court finds that the applicant’s statement attained a level of seriousness capable of bringing Mr Jurašinović’s rights under Article 8 of the Convention into play. By way of observation, the Court also considers that referring to a need of psychiatric treatment and using it as an insult is disrespectful of persons with mental health issues. 85. The Court further reiterates that in cases concerning a conflict between the right to reputation and the right to freedom of expression, domestic courts hearing defamation claims are expected to perform a balancing exercise between those two rights (see Perinçek, cited above, §§ 198-99), in line with the criteria established in the Court’s case-law regarding that type of case, which include: - whether a contribution has been made to a debate of public interest, - the notoriety of the person concerned, - his or her prior conduct, - the content, form and consequences of the statement in question, and - the severity of the sanction imposed (see, among many other authorities, Axel Springer AG, cited above, §§ 78‑95, and Couderc and Hachette Filipacchi Associés v. France [GC], no. 40454/07, § 82-93, 10 November 2015). 86. In cases such as the present one, domestic courts may also be required to take into account certain additional criteria: in this case, for example, the applicant’s status as a politician and as a high-ranking State official, and on the other hand, Mr Jurašinović’s status as an advocate, may be of importance for the outcome of the balancing exercise. 87. Where such a balancing exercise has been undertaken, the Court would require strong reasons to substitute its view for that of the domestic courts (see Delfi AS v. Estonia [GC], no. 64569/09, §§ 138-39, ECHR 2015, with further references). 88. However, even though the civil courts recognised that the present case concerned two conflicting rights (see paragraphs 17 and 19 above), in their examination they made no reference to the relevant criteria developed in the Court’s case-law (see paragraph 85 above). Instead, they examined the case only in terms of civil law, without taking into account its constitutional and Convention aspects. 89. It is evident from the text of their decisions (see paragraphs 17 and 19 above) that those courts did not, for example, examine whether the applicant’s statement concerned a matter of public interest or take into account the context in which it was made. 90. The domestic civil courts classified the applicant’s statement as a factual statement rather than a value judgment (see paragraphs 17 and 19 above). Specifically, those courts limited their analysis to the fact that the applicant had implied that Mr Jurašinović should be treated for a mental illness or disorder. In their view it was unacceptable for anyone to state publicly whether someone should be treated for such illnesses or disorders, since such an issue was exclusively the personal matter of every citizen (see paragraphs 17 and 19 above). 91. It thus follows that, contrary to the Government’s argument (see paragraph 59 above), the civil courts failed to carry out the required balancing exercise between Mr Jurašinović’s reputation and the applicant’s freedom of expression (compare Perinçek, cited above, § 278; Reznik v. Russia, no. 4977/05, § 43, 4 April 2013; and Milisavljević v. Serbia, no. 50123/06, § 38, 4 April 2017). 92. Similarly, the Constitutional Court did not examine the case from a constitutional-law perspective but instead simply declared the applicant’s constitutional complaint inadmissible, finding that the case did not raise any constitutional issue (see paragraph 22 above). 93. Since the domestic courts did not apply the criteria laid down in the Court’s case‑law for balancing freedom of expression with the right to reputation (see paragraphs 85-86 above), the Court finds that it must carry out the required balancing exercise itself (see Perinçek, cited above, § 279). (α) The notoriety and prior conduct of the person concerned 94. The Court considers that Mr Jurašinović had not been a public figure before information regarding part of the content of the criminal complaint was reported by the Croatian media, and nor did he make any public statement regarding the applicant. When contacted by journalists he only confirmed that he had lodged the criminal complaint in his professional capacity – namely as an advocate acting on behalf of his client, and refrained from making any further comments (see paragraph 9 above). 95. While it is unclear how the content of the criminal complaint reached the media, Mr Jurašinović denied disclosing that information (see paragraphs 67 and 69 above). 96. The Court therefore agrees with the Government (see paragraph 56 above) that the allegation which provoked the applicant’s statement was not made publicly; nor was it intended for a public readership. Likewise, it cannot be said that Mr Jurašinović knowingly entered the public sphere. 97. His situation thus could not be compared to that of persons who voluntarily expose themselves to public scrutiny by virtue of their role as politicians, public figures or participants in a public debate on a matter of public interest, and who are therefore required to display a higher level of tolerance than would be expected of non-public figures, in respect of which wider limits of criticism are acceptable (see, for example and mutatis mutandis, Egeland and Hanseid v. Norway, no. 34438/04, § 62, 16 April 2009). (β) The content and form of the statement and its contribution to a debate of public interest 98. As noted above (see paragraph 90), the domestic civil courts classified the applicant’s statement as a factual statement rather than a value judgment (see paragraphs 17 and 19 above). They therefore summarily dismissed the applicant’s argument that his statement had been purely metaphorical and instead interpreted it rather narrowly and strictly literally (see paragraphs 17 and 19 above). 99. However, in view of the fact that even Mr Jurašinović understood it as a harsh medical metaphor (see paragraph 70 above), the Court cannot but conclude that the impugned statement was indeed a metaphor and as such constituted a pure value judgment and was therefore not susceptible of proof. 100. In the Court’s view, the alleged involvement of a State President in an attempted murder and/or his possible links with organised crime is undoubtedly a matter of public interest. The applicant had a right to reply to such an accusation and to defend himself, which he did first by making certain factual statements denying any connections with H.P., a person associated with organised crime (see paragraph 11 above). 101. Nevertheless, the applicant did not only express his opinion that the idea of him being behind an attempted murder and having connections with organised crime was absurd but went a step further and attempted to discredit Mr Jurašinović as a person to be trusted by an offensive statement using belittling and impertinent terms. There is nothing to suggest that the applicant could not have denied the serious accusations against him without using the impugned language. By personally insulting Mr Jurašinović, the applicant made no contribution to a debate on a matter of public interest and went beyond the limits of acceptable criticism. 102. As regards the form of the statement, the Court reiterates that the applicant made the statement in question when he was the State President, and that it was widely distributed by various media outlets (see paragraphs 5, 12 and 84 above). His statement was thus capable of causing greater harm to the reputation of Mr Jurašinović. (γ) The applicant’s status as a high-ranking State official and Mr Jurašinović’s status as an advocate 103. As regards high-ranking State officials, the Court has emphasised the importance of their freedom of expression by holding that, in order to protect their free speech in the exercise of their functions and to maintain the separation of powers in the State, it is acceptable in a democratic society for States to afford functional immunity to their heads of State (see Urechean and Pavlicenco v. the Republic of Moldova, nos. 27756/05 and 41219/07, § 47, 2 December 2014). 104. On the other hand, the Court has also acknowledged, albeit in different circumstances, that, generally speaking, words spoken by high ‑ ranking State officials, such as the applicant in the present case, carry more weight. 105. For example, the Court has in a number of cases emphasised the importance of the words chosen by public officials in their statements regarding persons suspected of a criminal offence before such persons have been tried and found guilty. The Court has accordingly found violations of Article 6 § 2 of the Convention on account of prejudicial statements made by various high-ranking State officials, such as the State President (see Peša, cited above, §§ 148-51), the Prime Minister (ibid.; see also Gutsanovi v. Bulgaria, no. 34529/10, § 194-98, ECHR 2013 (extracts)), the Minister of Justice (see Konstas v. Greece, no. 53466/07, §§ 43 and 45, 24 May 2011) and the Speaker of Parliament (see Butkevičius v. Lithuania, no. 48297/99, § 53, ECHR 2002 ‑ II (extracts)). 106. Likewise, the Court has also considered that certain statements by high-ranking State officials were ipso facto incompatible with the notion of an “independent and impartial tribunal” within the meaning of Article 6 § 1 of the Convention (see Ivanovski v. the former Yugoslav Republic of Macedonia, no. 29908/11, § 147, 21 January 2016, which concerned the Prime Minister’s statement, and Sovtransavto Holding v. Ukraine, no. 48553/99, § 80, ECHR 2002 ‑ VII, which concerned, inter alia, the statement by the State President). 107. The Court has in a number of cases emphasised that lawyers play a vital role in the administration of justice and that the free exercise of the profession of lawyer is indispensable to the full implementation of the fundamental right to a fair trial guaranteed by Article 6 of the Convention (see, for example, Morice v. France [GC], no. 29369/10, §§ 132-39, ECHR 2015, and Nikula v. Finland, no. 31611/96, § 45, ECHR 2002 ‑ II). 108. It is further mindful of the occurrence of harassment, threats and attacks against lawyers in many Council of Europe member States. However, in the present case the domestic courts established that the applicant’s statement had not constituted a threat of involuntary psychiatric confinement (see paragraph 17 above). The Court has no reason to question that assessment. 109. Nonetheless, it considers that high-ranking State officials attacking the reputation of lawyers and making them objects of derision with a view to isolating them and damaging their credibility – as the applicant did in the present case – is often as effective as a threat in preventing lawyers from exercising their professional duties. Such statements could, as noted by the interveners (see paragraph 74 above), have serious consequences for the rights of the accused and the right of access to a court, which are essential components of the right to a fair trial guaranteed by Article 6 § 1 of the Convention. 110. Lastly, the Court is mindful of the fact that at the time that the applicant made the impugned statement, Mr Jurašinović was bound by the secrecy of criminal investigation in France (see paragraph 9 above). This precluded him from replying (by, for example, arguing that the accusations made in the criminal complaint were not absurd as the applicant’s statement suggested) and placed him in an even more disadvantageous position vis-à ‑ vis the applicant, a powerful public figure who, because of his role as a State President, enjoyed great media attention. (δ) Consequences of the statement and the severity of the sanction 111. The amount in non-pecuniary damages that the applicant was ordered to pay was HRK 50,000 (approximately EUR 6,660 at the material time). This sum amounted, for example, to two-thirds of what Croatian courts normally award in non-pecuniary damages in respect of mental anguish caused by the wrongful death of a sibling (see the Supreme Court’s guidelines referred to in Klauz v. Croatia, no. 28963/10, § 31, 18 July 2013). 112. While the size of that award may therefore appear substantial, the Court reiterates its findings above that (a) words spoken by high-ranking State officials carry more weight (see paragraphs 104-105 above) and, consequently, statements made by them that are injurious to the reputation of others cause greater harm, and that (b) the applicant’s statement, to which Mr Jurašinović was not in a position to reply, was widely distributed by various media outlets (see paragraphs 84, 102 and 110 above). 113. Moreover, as established above (see paragraph 109), the applicant’s statement was not only injurious to Mr Jurašinović’s reputation but was also capable of having a “chilling”, dissuasive effect on his exercise of his professional duties as an advocate. Therefore, the award of damages in the present case was, despite its size, an appropriate sanction to neutralise that chilling effect and proportionate to the legitimate aim of protecting the reputation of Mr Jurašinović. (iii) Conclusion 114. Having regard to all the foregoing considerations, the Court concludes that the interference with the applicant’s freedom of expression was “necessary in a democratic society” for the protection of Mr Jurašinović’s reputation and to avoid a “chilling effect” on professional duties carried out by advocates. 115. There has accordingly been no violation of Article 10 of the Convention in the present case. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 116. The applicant complained that the length of the civil proceedings (see paragraphs 13-22 above) had been incompatible with the “reasonable time” requirement laid down in Article 6 § 1 of the Convention, which reads as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...” AdmissibilityThe parties’ arguments The parties’ arguments The parties’ arguments 117. The Government firstly submitted that the applicant had failed to exhaust the available domestic remedies in that he had not used the length ‑ of ‑ proceedings remedy available under the 2005 Courts Act, which had been in force until 13 March 2013. 118. The Government furthermore pointed out that in his observations the applicant had tried to extend the scope of his initial complaint by submitting that the proceedings complained of had ended only when the Constitutional Court (see paragraph 119 below) had decided his constitutional complaint. However, in his application to the Court he had only complained of the length of the proceedings before the Zagreb County Court (see paragraphs 18-20 above). 119. The applicant replied that the remedy in question was not effective and that during the period before 13 March 2013 the proceedings complained of had not exceeded a reasonable time. In any event, even after that date it had still taken four and a half years before the proceedings had been terminated by the decision of the Constitutional Court. During that period the case had been pending for three years and some seven and a half months before the Zagreb County Court, as the second-instance court. The Court’s assessment (a) The scope of the applicant’s complaint 120. The Court notes that in his application to the Court the applicant formulated his complaint concerning the excessive length of proceedings in the following terms: “... the applicant points out that the second-instance court, in deciding the applicant’s appeal against the judgment of the first-instance court, did not render the judgment within a reasonable time, which is why the applicant considers that his right to have his case examined by the court within a reasonable time has been breached ... In particular, the applicant lodged an appeal against the first-instance judgment on 27 January 2012, and the second-instance court rendered the decision only on 26 October 2016. It follows that the second-instance proceedings lasted a little less than five years. The proceedings in their entirety lasted almost ten years, which is not justified, given that the case was not big or complex.” 121. The Court therefore finds it evident that the applicant from the outset complained of the overall length of the civil proceedings, placing particular emphasis on the length of the proceedings before the County Court (see paragraphs 18-20 above). He reiterated his complaint in his observations (see paragraph 119 above), it being understood that applicants may subsequently elucidate or elaborate upon their initial submissions, and that the Court must take into account not only the application form but the entirety of their submissions in the course of the proceedings before it, which may eliminate any initial omissions or obscurities (see, for example, Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 129, 20 March 2018). (b) Exhaustion of domestic remedies 122. The Court reiterates that in the period between 29 December 2005 and 13 March 2013 a request for protection of the right to a hearing within a reasonable time under the 2005 Courts Act (see paragraph 26 above) was recognised by the Court as an effective remedy under Article 13 of the Convention. This also meant that it had to be exhausted for the purposes of Article 35 § 1 before any complaints concerning the excessive length of judicial proceedings in Croatia were brought before the Court (see Pavić v. Croatia, no. 21846/08, § 36, 28 January 2010, and Mirjana Marić v. Croatia (no. 9849/15, § 37, 30 July 2020). 123. In the present case the applicant did not use that remedy – which was both effective and available to him – to complain of the excessive length of the proceedings in his case. By 13 March 2013 those proceedings had already lasted six years and almost two months over two levels of jurisdiction (see paragraphs 13-18 above), which could be considered excessive. 124. Having regard to the Court’s case-law (see, mutatis mutandis, Mirjana Marić, cited above, §§ 69-70), it follows that this complaint, in so far as it concerns the period before 13 March 2013, is inadmissible under Article 35 § 1 of the Convention for non-exhaustion of domestic remedies and must be rejected, pursuant to Article 35 § 4. (c) Conclusion as to admissibility 125. What remains to be examined is the period between 14 March 2013 and 20 October 2017 (when the Constitutional Court’s decision of 27 September 2017 was served on the applicant’s representative – see paragraph 22 above), during which the proceedings lasted for four years and some seven months at two levels of jurisdiction (see paragraphs 18-22 above). 126. The Court notes that, to the extent that the applicant’s length ‑ of ‑ proceedings complaint concerns that period, it is neither manifestly ill ‑ founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. Merits 127. The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case in question and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities, and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). 128. Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or argument capable of justifying the length of the civil proceedings in the instant case. 129. In the relevant period (see paragraph 125 above) there were no delays attributable to the applicant. The proceedings took place before the appellate court and the Constitutional Court, and no hearings were held (see paragraphs 18-22 above). The delays in that period were mainly attributable to the authorities, as it took three years and some seven and a half months for the Zagreb County Court to decide the applicant’s appeal (see paragraphs 18-19 above). 130. Having regard to its case-law on the subject (see, for example, Mirjana Marić, cited above §§ 71 and 90-91), the foregoing considerations are sufficient to enable the Court to conclude that in the present case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. 131. There has accordingly been a violation of Article 6 § 1 of the Convention. APPLICATION OF ARTICLE 41 OF THE CONVENTION 132. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” Damage and costs and expenses 133. As regards the violation of Article 6 § 1 of the Convention, the applicant claimed EUR 15,000 without making separate claims in respect of pecuniary damage, non-pecuniary damage and costs and expenses. 134. The Government contested the applicant’s claim by pointing out that he had failed to specify whether and to what extent it concerned pecuniary damage, non-pecuniary damage and/or costs and expenses. The Government accordingly asked the Court not to award any sum by way of just satisfaction. 135. The Court reiterates that an applicant who wishes to obtain an award of just satisfaction must make a specific claim to that effect (Rule 60 § 1 of the Rules of Court); however, a claim in respect of non-pecuniary damage does not need to be quantified or substantiated. This, inter alia, means that an applicant should make separate claims in respect of pecuniary damage, non ‑ pecuniary damage and costs and expenses. 136. The Court considers that the applicant must have sustained non ‑ pecuniary damage as a result of the violation of his right to a hearing within a reasonable time. Ruling on an equitable basis, the Court awards him EUR 2,000 in respect of non-pecuniary damage, plus any tax that may be chargeable on that amount. 137. On the other hand, in so far as his claim for just satisfaction concerns pecuniary damage and costs and expenses, the Court rejects it, because the applicant failed to comply with the requirements of Rule 61 of the Rules of Court. Default interest 138. 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 10 (freedom of expression) of the Convention, finding that the interference with the applicant’s freedom of expression had been necessary in a democratic society. It considered, in particular, that the statement made by the applicant had not only been detrimental to the lawyer’s reputation but had also been capable of having a “chilling”, dissuasive effect on the exercise of his professional duties. Therefore, the awarding of damages had been an appropriate sanction to neutralise that effect and proportionate to the aim of protecting the lawyer’s reputation. The Court held, however, that there had been a violation of Article 6 § 1 (right to a fair hearing within a reasonable time) of the Convention in the present case, finding that the length of the civil proceedings had been excessive. |
37 | Right to education (Article 2 of Protocol No. 1) | II. RELEVANT DOMESTIC LAW AND PRACTICE 47. The relevant provisions of the Education Act 1998 are cited above. 48. The requirement for parents to give reasons for an application for a partial exemption is described in the citations from Circulars F-90-97 and F ‑ 03-98, reproduced in the Supreme Court ’ s judgment in paragraph 42 above. The latter circular also contained the following passages, which are of relevance for the present case. “ 4. Solution: differentiated teaching and local adjustment of the Curriculum 4.1. Adjusted teaching and local work on the Curriculum as an underlying principle Section 13 (10) of the Compulsory School Act provides that a school that receives notification concerning an exemption shall as far as possible, and especially at the primary- school level, seek solutions by providing for ‘ differentiated teaching within the Curriculum ’. The differentiated teaching mentioned in the Act is closely related to the adaptation of teaching principle that is generally emphasised in the School Curriculum [ Læreplanverket, L97 ] and embodied in section 7 of the Compulsory School Act. In the principles and guidelines, importance is attached to the principles of community and adjustment within the unified school system framework. Formulations there include the following: Individual adjustment is necessary to ensure that equivalent provision is made for all pupils. For this purpose, all aspects of the school course – syllabus, working methods, organisation and teaching aids – must be adjusted in accordance with the pupils ’ capabilities. It is further stated that this opens up opportunities for different treatment and depth of study of the syllabus, and for variations in kinds of material, difficulty, quantity, speed and progression ( see L97/L97S). ... 4.2. Differentiation within the KRL syllabus – differentiation of activities, not of knowledge According to the statute, a school that receives notification concerning an exemption shall seek solutions in which provision is made for differentiated teaching within the Curriculum. The municipal obligation to provide differentiated teaching applies as extensively as possible and particularly at the primary- school stage. The reasons for the statute state that the differentiated teaching shall be provided according to the same curriculum, and is not to be differentiation of knowledge but differentiation of activities. Since there is no exemption from knowledge of the subject, pupils with an exemption shall receive instruction within the framework of the curriculum. In cases to which partial exemption applies, the alternative is not another subject or another curriculum, but other activities and other ways of working with the KRL syllabus. The school must convey the knowledge in question to the pupils by means of a different methodological approach. Exemption can nevertheless be granted from certain main topics which entail specific activities. An example is the main topic in which pupils are required to learn the Ten Commandments by heart ( Christian faith and ethics, sixth grade). One cannot, however, be exempted from knowing about the Ten Commandments. The differentiated course of instruction must have regard for the pupils ’ religious or philosophical background, and help as far as possible to ensure that all pupils have worked with the same areas of knowledge in the grade in question, but using adjusted working methods. How great the need for differentiation is depends locally on – which religious or philosophical groups the parents belong to, and – what kinds of activity they request exemption from. ... 6. Differentiation in encounters with specific activities The Guide to the KRL subject contains an introduction to ways of working with the subject, and also deals with the questions discussed below. Some of the questions are dealt with more exhaustively here however. See also the concrete examples for each school year given in the guide. We give examples below of how to work with various activities, and take up other questions that may arise: 6.1. Prayers, creed, and other important religious texts Some activities – such as learning by heart and reciting creeds, commandments and prayers (LS97, pp. 96 and 101, and L97S, pp. 101- 09) may be perceived by some parents and guardians as the exercise of and/or adherence to a particular religion. When notification is given concerning an exemption from such activities, the school will offer differentiated instruction to enable the pupil to work with that kind of material in a different way. If the parents find this satisfactory, they can choose to allow their children to be present when prayers or creeds from other religions are recited, provided the children are helped to maintain the necessary distance from the material and from what is taking place (see in this connection the section above on the roles of participant and spectator). Such activities can also be scheduled for individual working periods and for work in groups in which different approaches to the material are adopted. 6.2. Hymn singing While arrangements are made for pupils who belong to the Christian tradition to sing hymns and to gain insight through that activity into an important feature of their religious and cultural tradition, necessary regard must be had for pupils who do not belong to that tradition. Hymn singing can also take place outside the Christian knowledge and religious and ethical education periods, for instance in music periods. Hymns can be incorporated into song periods, when they are placed in their musical context and seen as an important part of our sung cultural heritage. Pupils who have been granted an exemption for hymn singing must be given other ways of working with hymns, as the case may be in separate groups. They can for instance listen to a hymn and be given such assignments as what is the hymn text about? Can you relate the content of the hymn to a particular festival, and if so, why? Why is this hymn important within the Christian tradition? Another possibility would be to use hymns and songs as a theme for project work, involving looking more closely at songs, hymns and music and their functions in the different religions. See also the Guide to the KRL subject, p. 23. 6.3. Attendance at rituals/visits to churches or other religious assembly buildings Some parents may wish to have their children exempted from entering a church or other centre of divine worship whatever the connection. Others will distinguish between attending a divine service or the like, and being in a church or other religious assembly building on an excursion in a teaching situation. Whatever position the parents may take, cooperation between schools and homes is of major importance whenever such visits are scheduled. Excursions In the fourth grade, pupils are to be made acquainted with the lay-out, fixtures and furnishing of churches and with certain important Christian symbols ( programme item: Christian festivals, religious symbols, the life of the local Christian congregation ). Most pupils will acquire this knowledge by means of pedagogically arranged excursions to the local church. The focus is on the informative and objective aims. Information may for instance be conveyed relating to the church building, church decoration, symbols, and the functions of various objects. Some parents/guardians may request exemption for their children from participation in such excursions because a visit to a church is regarded as participation in a religious activity. For pupils who cannot visit a church, for instance, arrangements must be made for other activities and assignments at school. These should relate to the same area, so that the pupils are given access to parts of the same knowledge as they would have acquired on a church visit. Assignments can, for instance, be given relating to information booklets, if any, publications concerned with local history, or drawings, or pictures and posters showing or concerning the church in question. See the example on p. 44 of the Guide to the KRL subject. School services The description of the aims of the primary- school stage (L97, p. 94, and L97S, p. 100) states that pupils should visit a church in the local community and attend a divine service. It is emphasised that such attendance is part of the school ’ s teaching (not an element of the church ’ s baptismal preparation). Some pupils who belong to traditions other than the Christian tradition may seek exemption from participation, for instance in a school service and the related activities. Such pupils must be offered differentiated teaching. If the pupils are present at the service, this can be arranged by, for instance, assigning them to observe the functions of the various stages of the liturgy in relation to the whole, to note how the hymns relate to the main theme of the service, or to see whether/how images, colours, texts and music all help to shed light on the theme of the service. Other parents may notify complete exemption from any attendance at a divine service. Those pupils must be made acquainted with the Christian service by means other than attendance, for instance through classroom teaching with a focus on pictures, music and texts. What has been said here about church visits can also apply to visits to mosques, synagogues, temples or other houses of religious assembly. Illustration and the prohibition of images See the more detailed discussion on p. 22 of the Guide to the KRL subject. Especially challenging stories, parallel figures See the more detailed discussion on pp. 30, 32, 50 and 52 of the Guide to the KRL subject. 6.4. Other areas The Ministry has received questions concerning other aspects of the course in Christian knowledge and religious and ethical education, including: Dramatisations Plays, mime and dramatisations can contribute to sympathetic insight into the teaching material and to unity among pupils. Such approaches can at the same time involve the kinds of activity from which some parents/guardians wish to have their children exempted. This could for instance apply to dramatisations which include holy persons, such as Nativity plays. Some may argue that it is the ‘ acting part of the work ’ from which exemption is being sought. That problem can be solved by giving the pupils concerned other important tasks connected with the dramatisation. Sets have to be constructed; lighting and sound need to be planned, set up and tested; programmes need to be prepared. An announcer and narrators are needed. Journalists are needed to interview the active participants in the programme, to describe the activities, and to edit the class newspaper for publication after the performance. These are some of the important assignments that can be carried out by pupils who are not going to have tasks relating directly to the dramatisation. These are also means whereby they can be naturally integrated into the class community, while at the same time having the opportunity to adopt a spectator ’ s stance with regard to the material being presented and its mode of presentation. Other parents may say that their children are not to be included either in the dramatisation or in work connected with it. This must be respected, and other assignments must be prepared for those pupils. ... 7. Cooperation between schools and homes – openness and objectivity If parents are to feel confident that teaching in the subject does not conflict with their own convictions, close cooperation between schools and homes is necessary. On the basis of knowledge of the religious and philosophical backgrounds of parents, teachers can endeavour to plan their teaching so as to reduce the need for exemption to a minimum. A teaching plan for the subject should be drawn up as early as possible. In the plan the school should describe the offers of differentiation that are generally made in connection with different religious and philosophical backgrounds. When the plan is presented to the parents, it gives them the opportunity to consider the need, if any, for exemption from particular activities. To request partial exemption, parents must send written notification to the school. They must state which activities in the school ’ s teaching they perceive as the exercise of another religion or adherence to another philosophy of life. Parents should then decide whether to opt for the general offer of differentiation, if the school has made such an offer, or, in addition, if appropriate, ask for a more individually adapted offer of differentiation. By means of the dialogue established in this connection between homes and schools, the specific teaching provisions for the pupils can be determined. If parents notify the school that they want an exemption from the distinctly religious activities, described in the reasons for the legislation as ‘ reciting creeds or prayers, learning religious texts by heart, taking part in hymn singing, and attending rituals or divine services in different congregations ’ such notification will apply in general to that type of activity. A new notification for each individual religious activity is thus not necessary. In the cooperation between schools and homes, school staff must show respect for the fact that pupils have different religious backgrounds. Special attention must be paid to this in contacts with linguistic and cultural minorities. 8. Administrative procedures Municipal decisions concerning notifications of exemption are individual decisions under the Public Administration Act, and can accordingly be appealed to National Education Offices in accordance with section 34 (3) of the Compulsory School Act. A municipality can delegate its decision-making authority to the school principal. Matters must be considered in sufficient depth before decisions are taken; see section 17 of the Public Administration Act. ... 10. Textbooks as one of several teaching aids in the subject The Ministry wishes to emphasise that it is the Curriculum that is binding on the teaching, not the textbooks. The textbooks on the subject are only one of several teaching aids that can be used to achieve the aims of the subject. The textbooks used in compulsory school must be approved. Even if a textbook has been approved, there is a risk that it contains errors. When teachers have their attention called to possible errors in textbooks, they must look into the matter more closely so that the teaching given is correct. Although the regulatory special review of books on the subject has been revoked ( section 4 of the former textbook regulation), the Ministry notes that the arrangement for the review of textbooks will be continued. The textbooks will be considered by religious and philosophical communities, among others, to ensure that the religions and philosophies of life are presented in accordance with their distinguishing characteristics.” 49. Norway ’ s Ten-Year Compulsory Schooling Curriculum, issued by the Ministry in 1999 ( referred to as “the Curriculum” ) stated: “The study of the subject is intended to give pupils a thorough insight into Christianity and what the Christian view of life implies, as well as sound knowledge of other world religions and philosophies. Important items in the Curriculum are accordingly the classical Bible stories and other biblical material, the main lines of development and major personalities in the history of Christianity, and the fundamentals of the Christian faith and Christian ethics. The subject also comprises the principal features of other living religions and philosophies of life and some of the major questions raised in philosophy and general ethics concerning the nature of man. The same pedagogical principles should be applied in the teaching of Christianity and in that of the other religions and orientations. The subject must be approached openly and contribute to insight, respect and dialogue across the boundaries between faiths and philosophies, and promote understanding and tolerance in religious and moral questions. The classroom is no place for the preaching of any particular faith. The subject gives knowledge about a faith, not instruction in it. It must also sustain the individual pupil ’ s sense of identity and cultural attachment, while at the same time furthering dialogue within a shared culture. In order to meet different faiths and views of life with understanding, one needs to be able to place them in a context that is already familiar. The subject thus has various functions in compulsory school: to transmit a tradition, to maintain a sense of identity, and to build bridges which give insight and promote dialogue. ... The structure of the subject The primary stage The intermediate stage The lower secondary stage Bible study Well-known stories from the Bible Major narratives in the Bible Biblical genres, the Bible as Scripture, Bible History History of Christianity Important single episodes Early history: trends, persons, cultural expressions Modern History: trends, person, cultural expressions Contemporary Christian view of life Festivals, symbols, Christianity in the community Christian faith and ethics Christian Confessions, similarities and differences Other religions Other religions and orientations, stories and festivals Islam, Judaism, Hinduism, Buddhism, Secular orientation Religious expressions in our time Ethics/philosophy Ethical awareness: mine and yours, me and others Ethical awareness: values and choices Philosophical interpretations of man: values and norms Because the subject is new and intended for all pupils, it is essential that parents and pupils of different persuasions are well acquainted with the syllabus and its contents. To reassure parents with regard to the contents of the syllabus, importance has been attached to formulating the syllabus so that parents will find it easy to see what subject matter pupils will be encountering at the various stages. ” 50. The Curriculum set out the general aims of the subject and listed the objectives and main subject elements for grades 1 to 4, 5 to 7 and 8 to 10. The general aims of the subject were described as: “ • to make pupils thoroughly acquainted with the Bible and with Christianity as cultural heritage and as a living source of faith, morality, and a view of life; • to make pupils familiar with the Christian and humanist values on which school education is based; • to acquaint pupils with other world religions and orientations as living sources of faith, morality, and views of life; • to promote understanding, respect and the capacity for dialogue between people with different views on questions of faith and ethical orientation of life; and • to stimulate pupils ’ personal growth and development. ” After setting out the objectives for grades 1 to 4, the Curriculum listed the main subject elements for these grades, each of which comprised the following titles : “Biblical narrative”; “ Narrative material from Church history ”; “Christian festivals, religious symbols, and the life of the local Christian community”; “Development of moral awareness: Me and others”. As to “ Other religious and ethical orientations” it included “Judaism”, “Islam”, “Hinduism”, “Buddhism”, “Humanism” and “Greek mythology”. The Curriculum further set out the subject- related objectives for grades 5 to 7, which included this passage: “ Christian faith and ethics Pupils should learn the fundamentals of the Christian faith and Christian ethics in the light of the positions taken in Luther ’ s Small Catechism. Other religions Pupils should study the main features of and important narratives from Islam, Judaism, Hinduism, and Buddhism. Secular orientations Pupils should know about secular orientations, the development of the humanist tradition, and the modern humanist view of life.” The main subject elements for grades 5 to 7 encompassed : “Bible History”, “Early history of Christianity” (“the Middle Ages” for grade 6, and “the Reformation period” for grade 7), “Christian faith and ethics”. As to “Other religions”, the subject included “Islam” for grade 5, “ Judaism ” for grade 6, and “ Hinduism ” and “ Buddhism ” for grade 7. In addition, grades 5 to 7 contained elements for “Development of moral awareness: Values and choices” and “Secular orientations”. For grade 6 it was stated, inter alia : “ Christian faith and ethics Pupils should have the opportunity to – learn the Ten Commandments by heart and be acquainted with the ethical ideals underlying the Sermon on the Mount; – learn something of how these fundamental ethical texts have been used in the history of Christianity and how they are applied today. ” There was no equivalent in the list of items to “become acquainted with” in regard to “Other religions, Judaism”. After indicating the subject- related objectives for grades 8 to 10, the Curriculum listed the main subject elements, namely, “The history of the Bible, literary genres in the Bible”; “The modern history of Christianity”; “Various contemporary interpretations of Christianity”; “Religious expressions in our time”; and “ Philosophical interpretations of man, values and norms”. COMPLAINTS 51. The applicant parents complained that the refusal of the competent domestic authorities to grant their children a full exemption from the KRL subject violated the parents ’ rights under the Convention. The children ’ s compulsory attendance at religious instruction unjustifiably interfered with their parents ’ right to freedom of conscience and religion under Article 9 of the Convention. It further violated the parents ’ right under Article 2 of Protocol No. 1, second sentence, to ensure such education and teaching in conformity with their own religious and philosophical convictions. 52. In addition, the inconveniences resulting from the general aspects of the exercise of the right to partial exemption meant that non-Christian parents were faced with a greater burden than Christian parents, who had no reason for seeking an exemption from the KRL subject, which was designed in accordance with the premises of the majority. In their view this amounted to discrimination. Thus, there had also been a violation of Articles 8 and 9 of the Convention and Article 2 of Protocol No. 1 taken in conjunction with Article 14 of the Convention. THE LAW I. ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL No. 1 53. The applicant parents complained under both Article 9 of the Convention and the second sentence of Article 2 of Protocol No. 1 on account of the refusals by the domestic authorities to grant their children full exemption from the compulsory KRL subject dealing with Christianity, religion and philosophy taught during the ten-year compulsory schooling in Norway. 54. The Court, leaving aside the fact that the children ’ s complaints under Article 9 of the Convention were declared inadmissible on 26 October 2004, considers that the parents ’ complaint falls most suitably to be examined under Article 2 of Protocol No. 1, as the lex specialis in the area of education, which reads: “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.” A. The parties’ submissions 1. The applicants 55. The applicants maintained that the KRL subject was neither objective, nor critical nor pluralistic for the purposes of the criteria established by the Court in its interpretation of Article 2 of Protocol No. 1 in Kjeldsen, Busk Madsen and Pedersen v. Denmark (7 December 1976, Series A no. 23). In this context they also referred to the criteria of “neutral and objective” enunciated by the United Nations Committee in Hartikainen v. Finland in relation to the corresponding provision in Article 18 § 4 of the International Covenant on Civil and Political Rights. The Curriculum’s main intention being to strengthen the pupils ’ religious identity, the legal framework with a Christian object clause, a curriculum that fully adopted a religious outlook and praised the Christian belief and tradition, together with textbooks that contained traditional Christian preaching clearly indicated, in sum, that the Curriculum was not objective. 56. The issue whether the contested Norwegian primary- school subject constituted a violation of the relevant human rights standards on freedom of religion, parental rights, freedom of privacy and prohibition of discrimination ought to be seen in the broader context of a society with an extreme Christian predominance. Norway had a State religion, a State Church, with constitutional prerogatives being afforded to the Christian (Evangelical Lutheran) Faith. There was a Christian object clause for State schools and pre - schools. There were State Church priests in the armed forces, prisons, universities and hospitals. There were daily Christian devotions and services in State broadcasting. No less than 86% of the population belonged to the State Church, the Church of Norway. 57. Nevertheless, the right to freedom of religion for non-Christians had been taken care of in different ways, inter alia, by an exemption arrangement from the previous Christian Knowledge subject in State schools. This right to a general exemption – which had been enjoyed for more than 150 years – had been repealed when the KRL subject was introduced in 1997. One of the intentions of the government was to have all pupils together in the classroom when important issues like the combating of prejudice and discrimination, or better understanding of different backgrounds, were taught. 58. The applicants did not disagree with the general intention to promote intercultural dialogue – quite the contrary, they considered that many of the aims expressed by the government upon establishing the new subject were very good ones and strongly agreed with them. The problem was that the KRL subject simply did not achieve those aims, unlike the “philosophy of life” subject which the applicants favoured. 59. Referring to the mention of religious activities in the rule on partial exemption in section 2-4 of the Education Act 1998, the applicants found it hard to understand how this could be reconciled with the requirements that the teaching be “objective and neutral” or even “pluralistic and critical”. 60. The applicants disputed the contention that the KRL subject involved only a few activities that could be perceived as being of a religious nature. The Curriculum, the textbooks that were used in schools and all the information regarding the implementation of the Curriculum indicated that the main object of the subject – to strengthen the pupils ’ own Christian foundation – was also the main thread in the tuition. The principal intention behind the introduction of the KRL subject had been to secure the religious foundation for the majority of pupils who adhered to Christianity. Otherwise the introductory provision in the Education Act 1998 would not have been formulated as an obligation for the teacher to provide tuition in accordance with the Christian object clause. 61. The relevant textbooks contained parts that could be conceived as professing Christianity. Although the textbooks had not been formally designated as part of the subject ’ s legal framework, they had acquired official status by having been controlled and authorised by an official State agency, the Norwegian Textbook Agency ( Norsk Læremiddelsentral ). 62. A cornerstone in the partial - exemption arrangement was the separation between normative and descriptive knowledge. The pupils could be exempted from taking part in certain activities, but not from knowing the contents of the activities or tuition in question. They could be exempted from reciting from the Bible, singing songs, saying prayers, etc., but not from knowing what was recited, sung, prayed, etc. The whole idea behind the exemption arrangement had been that it was possible to maintain a mental “ separation ” between knowledge and participation. It presupposed that one could “ learn ” the text ( notably prayers, psalms, Biblical stories and statements of belief) without being subjected mentally to what constituted or might constitute unwanted influence or indoctrination. However, the evaluations made of the KRL subject had shown that that distinction had not been understood in practice, not even by the teachers. The parents in these applications had explained in their written testimonies how this separation did not function with regard to their children. Thus, partial exemption had not been a possible option for them. 63. When parents claimed partial exemption from parts of the tuition other than the religious activities listed on the form, they had to give “brief” reasons for their request in order to enable the schools to consider whether the activity might reasonably be perceived as being the practice of another religion or adherence to another philosophical conviction under section 2 ‑ 4 (4) of the Education Act 1998. It was not easy for all parents to have detailed knowledge of and to single out those parts of the tuition they disapproved of and to apply for an exemption, especially when the whole structure of the KRL subject was based on a religious conception which in principle was contrary to the applicants ’ philosophy of life. 64. For the applicants, it was highly unsatisfactory that their opinions and deeply personal philosophical conviction in this area should be communicated to and examined by school teachers and administrators. Even though the parents might not have had an obligation to state formally their own personal conviction, it was likely that this would have been revealed in the reasons that they provided in order to obtain a partial exemption. In the applicants ’ experience, this had been unworthy and undignified. 65. In practice, the partial exemption application procedure would apply to non-Christian parents only. Some of them were immigrants, with little or insufficient knowledge of the Norwegian school system and language and skills in conducting a theoretical dialogue about a religion with which they were not acquainted. For the applicants, however, all being ethnic Norwegians, this was not the case. Even so, despite some having excellent oral and written communication skills and some even being well acquainted with the Norwegian school system, it had been hard for them to communicate satisfactorily with the school administration in the exemption application procedure. One difficulty had related to revealing what the parents found to be inconsistent with their own philosophy of life. Another problem had been the practical arrangement of the subject. In order to distinguish which parts of the tuition they sought exemption from, the parents had to know exactly what tuition would be offered, at what time, what parts of the textbook would be applied and what activities were to be expected. They would have to follow the Curriculum and the tuition carefully, perhaps by “ interviewing ” their child on the progress and the contents of the Curriculum step by step. Even if the themes to be taught might seem acceptable in theory, the parents would have to make enquiries into how the teacher presented the material. The evaluation reports showed that it had been very hard to obtain relevant information in good time, which had also been the experience of the applicants. 66. Moreover, as a result of the partial- exemption arrangement, the relationship between parent and child suffered. The children ’ s function as a “ go-between ” between the parents and the school and the children ’ s feeling of pressure from being different from others had caused frustration and conflicts of loyalty between the applicants and their children, as had their sense of stigmatisation. 67. The partial- exemption arrangement had not worked for the applicants, who had tried this option but without it offering a practical remedy for them. The arrangement had implied exposure of their own philosophy of life – directly or indirectly – and had forced them to know in detail the elements of another philosophy of life (in order to be able to apply for an exemption). They had been heavily burdened by monitoring the tuition, passing on messages, giving reasons, and by frustration and stigmatisation. The applicants had experienced how their children had suffered under the pressure of being different from other children, acting as “go-betweens” between the home and the school and living with conflicts of loyalty. An exempted pupil might be removed from the classroom and placed in a separate room or might remain in the classroom and be told not to listen or to participate in the activity concerned. The arrangement offered ample potential for conflict and stigmatisation. 68. This being the case, the applicants had had no option other than to apply for full exemption, but had been denied this and had had to comply with a partial- exemption arrangement that did not operate in a manner that respected their rights. 69. In the applicants ’ view, the best way to combat prejudices and discrimination and to cater for mutual respect and tolerance, which was also an expressed aim of the new subject, was not by forcing people of non-Christian traditions and philosophies to participate in classes that predominantly featured the Christian religion. A better way would have been to maintain the former system with one subject for the majority of pupils coming from Christian families, including information on other philosophies of life, and one non-confessional subject based on common heritage, philosophy and a general history of religions and ethics for the others. Even better would have been to refrain from the Christian superiority integral to the Norwegian school system and to create a common, neutral and objective religion and philosophy of life subject without any form of religious activity or particular Christian privileges. 2. The Government 70. The Government stressed that it followed from the Court ’ s Kjeldsen, Busk Madsen and Pedersen judgment that no violation of Article 2 of Protocol No. 1 could be established on account of the absence of a right to full exemption from the KRL subject. As acknowledged in that judgment ( § 53), most knowledge-based education might raise issues of conviction. Parents were not even permitted to object to such education because, otherwise, “all institutionalised teaching would run the risk of proving impracticable”. A right to full exemption such as that claimed by the applicants here would even more clearly render institutionalised and mandatory teaching impracticable. 71. The Government submitted that, bearing in mind the Court ’ s partial decision on admissibility of 26 October 2004 delimiting the scope of the case, there were two issues arising. The first issue was whether the KRL subject in general involved the imparting of information and knowledge in a manner which objectively might be perceived as indoctrinating, that is, not objective, neutral and pluralistic. Should this be the case, the second issue would be whether a possibility of obtaining a full exemption was the only viable alternative that would accommodate the parents ’ wishes. The Court ’ s assessment of the KRL subject ought to be objective, rather than relying on the applicants ’ perceptions, and be based on the presumption that the KRL subject had been taught in conformity with existing regulations and guidelines. The applicants ’ perceptions of the KRL subject seemed to differ from what could objectively be inferred from the facts. 72. The KRL subject was designed to promote understanding, tolerance and respect among pupils of different backgrounds, and to develop respect and understanding for one ’ s own identity, the national history and values of Norway, and for other religions and philosophies of life. Accordingly, the KRL subject was an important measure for the fulfilment of Norway ’ s obligations under Article 13 § 1 of the United Nations Covenant on Economic, Social and Cultural Rights and Article 29 § 1 of the United Nations Convention on the Rights of the Child. 73. Approximately half the Curriculum pertained to the transmission of thorough knowledge of the Bible and Christianity in the form of cultural heritage and the Evangelical Lutheran Faith, and of knowledge of other Christian communities. The other half, approximately, was devoted to the transmission of knowledge of other world religions and philosophies, ethical and philosophical subjects, the promotion of understanding and respect for Christian and humanist values, and of understanding, respect and the ability to maintain a dialogue between people with different perceptions of beliefs and convictions. Therefore, if the applicants – on behalf of their children – were to obtain full exemption, the children would be deprived of knowledge not only of Christianity but also of other religions and other philosophies of life and ethical and philosophical issues. In the view of the Government, the mere fact that the subject provided knowledge of world religions, philosophies of life, and ethical and philosophical topics, and that its purpose was to promote understanding of humanist values and dialogues between people with differing views, should be sufficient to conclude that a clause allowing for full exemption could not be required under the Convention. Such a requirement would prevent all compulsory tuition concerning not only religions, but also other philosophies of life and ethical issues. It would be untenable and run counter to Norway ’ s positive obligations under other international human rights treaties. On this ground alone it should be safe to conclude that parents could not claim a right under the Convention to a full exemption from KRL studies for their children. 74. The Government disagreed with the view implied by the applicants that the alleged lack of proportion could give rise to an issue under Article 9 of the Convention or Article 2 of Protocol No. 1. First of all, teaching pupils knowledge of Christianity could not in itself raise an issue under the Convention, as long as the instruction was carried out in an objective, pluralistic and neutral manner. Secondly, in current Norwegian society there were legitimate reasons for devoting more time to the knowledge of Christianity than to other religions and philosophies of life. These reasons had been set out in the travaux préparatoires documents, in the Curriculum and in the subsequent evaluation of the KRL subject. 75. The Christian object clause in section 1-2 of the Education Act 1998 could not, in the Government ’ s view, give rise to concerns under Article 9 of the Convention or Article 2 of Protocol No. 1. Firstly, the clause provided that it should apply only “in agreement and cooperation with the home”. Thus, any aid by schools in providing a Christian upbringing could only be given with the consent of the parents. Secondly, under section 3 of the Human Rights Act, section 1-2 of the Education Act 1998 ought to be interpreted and applied in accordance with the international human rights treaties that had been incorporated into domestic law through the Human Rights Act. Consequently, the Christian object clause did not authorise preaching or indoctrination of any kind in Norwegian schools. 76. Even if the KRL subject had been intended to be taught in a pluralistic, objective and critical manner, this fact should not exclude activities that could be perceived by parents as being religious, such as excursions to churches, synagogues, mosques or temples or attendance at rituals and religious services in various religious communities. Nor would it make it necessary to provide a possibility of obtaining full exemption from the KRL subject. 77. The problem of possible inclusion of activities that might run counter to the philosophical or religious convictions of parents had been given serious and significant thought by the government in the deliberations on how best to design the KRL subject. Both the government and the legislature recognised the parents ’ rights to ensure their children education and teaching in conformity with their own religious and philosophical convictions, but at the same time acknowledged that society had a legitimate interest in and an obligation to enhance mutual respect, understanding and tolerance between pupils with different backgrounds as regards religion or philosophy of life. Also, the interests of the pupils themselves in developing and strengthening their own identity and in widening their horizons through gaining knowledge of new religions and philosophies of life were recognised. 78. The Convention safeguarded against indoctrination, not against acquiring knowledge: all information imparted through the school system would – irrespective of subject matter or class level – to some degree contribute to the development of the child and assist the child in making individual decisions. Likewise, even objective, critical and pluralistic information on religion and philosophies of life would provide a backdrop against which the individual child could form his or her own thoughts and identity. The mere fact that such information and knowledge might contribute to the development of the child was not in contravention of the Convention. On the contrary, the Convention should also ensure the child ’ s right to education. 79. The travaux préparatoires clearly reflect that the chosen solution regarding exemptions outlined below was the result of a well-balanced compromise between these two interests. The dilemma these competing interests represented was solved through the establishment of three mechanisms that were intended to cater for the rights of parents to ensure their children education and teaching in conformity with their own religious and philosophical convictions: firstly, and perhaps most importantly, the provision contained in section 2-4 (4) of the Education Act 1998, which allowed for exemption from parts of the courses; secondly, differentiated teaching aimed at remedying problems encountered on the basis of parents ’ religious or philosophical convictions; thirdly, the parents ’ possibility of obtaining an administrative and/or judicial review if they perceived the education or teaching as not being in conformity with their convictions. 80. The requirement under section 2-4 of the Education Act 1998 that parents must apply for exemption from the KRL subject did not give rise to an interference with their privacy in the sense of Article 8 of the Convention. Reasons for the parents ’ request had to be given only with regard to activities that did not immediately appear to be the practice of a specific religion or adherence to a different philosophy of life. In cases where reasons had to be given, the parents were not required to provide information about their own religious or philosophical convictions. 81. In any event, the conditions imposed by the exemption clause could not be considered disproportionate or unreasonably burdensome, and thus warrant a right of full exemption. As argued above, requests for exemption did not need to be justified by the parents in cases where the activities clearly might be perceived to be of a religious nature. Reasons had to be given only if more extensive exemptions were sought and even then the reasons did not have to be comprehensive. 82. The Government also submitted that the applicants were not obliged to enrol their children in State schools. Individuals, groups of individuals, organisations, congregations or others could, upon application, establish their own schools or provide parental instruction in the home. Therefore, the Norwegian Humanist Association, or parents who did not want their children to participate in the KRL subject despite the partial- exemption clause, were at liberty to avoid the problem by establishing alternative schools, either on their own or in cooperation with others of the same conviction. This was a realistic and viable alternative as regards economic risk as well, as more than 85% of all expenditure connected to establishing and running private schools was publicly funded. 83. The applicants ’ affirmation that no Christian parents had applied for exemption or forwarded complaints with regard to the KRL subject was unfounded. Although the Government kept no statistics on the cultural background of parents who sought exemption from the KRL subject, it emerged that several Christian communities had established private schools on account of their dissatisfaction with the tuition of Christianity provided in State schools. Several of these schools had been established after the KRL subject had been introduced in 1997. There were now eighty-two registered private schools with a philosophy-of-life background. Since 2001, thirty-one of all thirty-six applications concerned the establishment of new Christian private schools. It would therefore be safe to assume that certain parents with a Christian philosophy of life had been dissatisfied with certain elements of the KRL subject and had applied for exemptions. B. Assessment by the Court 1. General principles 84. As to the general interpretation of Article 2 of Protocol No. 1, the Court has in its case-law (see, in particular, Kjeldsen, Busk Madsen and Pedersen, cited above, § § 50 - 54; Campbell and Cosans v. the United Kingdom, 25 February 1982, § § 36-37, Series A no. 48; and Valsamis v. Greece, 18 December 1996, § § 25-28, Reports of Judgments and Decisions 1996 ‑ VI ) enounced the following major principles: (a) The two sentences of Article 2 of Protocol No. 1 must be interpreted not only in the light of each other but also, in particular, of Articles 8, 9 and 10 of the Convention (see Kjeldsen, Busk Madsen and Pedersen, cited above, § 5 2 ). (b) It is on to the fundamental right to education that is grafted the right of parents to respect for their religious and philosophical convictions, and the first sentence does not distinguish, any more than the second, between State and private teaching. The second sentence of Article 2 of Protocol No. 1 aims in short at safeguarding the possibility of pluralism in education, which possibility is essential for the preservation of the “ democratic society ” as conceived by the Convention. In view of the power of the modern State, it is above all through State teaching that this aim must be realised (see Kjeldsen, Busk Madsen and Pedersen, cited above, § 50). (c) Article 2 of Protocol No. 1 does not permit a distinction to be drawn between religious instruction and other subjects. It enjoins the State to respect parents ’ convictions, be they religious or philosophical, throughout the entire State education programme (see Kjeldsen, Busk Madsen and Pedersen, cited above, § 51). That duty is broad in its extent as it applies not only to the content of education and the manner of its provision but also to the performance of all the “ functions ” assumed by the State. The verb “respect” means more than “ acknowledge ” or “ take into account ”. In addition to a primarily negative undertaking, it implies some positive obligation on the part of the State. The term “conviction”, taken on its own, is not synonymous with the words “ opinions ” and “ ideas ”. It denotes views that attain a certain level of cogency, seriousness, cohesion and importance (see Valsamis, cited above, §§ 25 and 27, and Campbell and Cosans, cited above, §§ 36- 37). (d) Article 2 of Protocol No. 1 constitutes a whole that is dominated by its first sentence. By binding themselves not to “ deny the right to education ”, the Contracting States guarantee to anyone within their jurisdiction a right of access to educational institutions existing at a given time and the possibility of drawing, by official recognition of the studies which he has completed, profit from the education received (see Kjeldsen, Busk Madsen and Pedersen, cited above, § 52, and Case “relating to certain aspects of the laws on the use of languages in education in Belgium” v. Belgium (merits), 23 July 1968, Series A no. 6, pp. 3 1 -32, § 4 ). (e) It is in the discharge of a natural duty towards their children – parents being primarily responsible for the “ education and teaching ” of their children – that parents may require the State to respect their religious and philosophical convictions. Their right thus corresponds to a responsibility closely linked to the enjoyment and the exercise of the right to education ( see Kjeldsen, Busk Madsen and Pedersen, ibid. ). (f) 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 and proper treatment of minorities and avoids any abuse of a dominant position (see Valsamis, cited above, § 27). (g) However, the setting and planning of the curriculum fall in principle within the competence of the Contracting States. This mainly involves questions of expediency on which it is not for the Court to rule and whose solution may legitimately vary according to the country and the era ( see Valsamis, cited above, § 28). In particular, the second sentence of Article 2 of Protocol No. 1 does not prevent States from imparting through teaching or education information or knowledge of a directly or indirectly religious or philosophical kind. It does not even permit parents to object to the integration of such teaching or education in the school curriculum, for otherwise all institutionalised teaching would run the risk of proving impracticable (see Kjeldsen, Busk Madsen and Pedersen, cited above, § 53). (h) The second sentence of Article 2 of Protocol No. 1 implies on the other hand that the State, in fulfilling the functions assumed by it in regard to education and teaching, must take care that information or knowledge included in the curriculum is conveyed in an objective, critical and pluralistic manner. The State is forbidden to pursue an aim of indoctrination that might be considered as not respecting parents ’ religious and philosophical convictions. That is the limit that must not be exceeded ( ibid. ). (i) In order to examine the disputed legislation under Article 2 of Protocol No. 1, interpreted as above, one must, while avoiding any evaluation of the legislation ’ s expediency, have regard to the material situation that it sought and still seeks to meet. Certainly, abuses can occur as to the manner in which the provisions in force are applied by a given school or teacher and the competent authorities have a duty to take the utmost care to see to it that parents ’ religious and philosophical convictions are not disregarded at this level by carelessness, lack of judgment or misplaced proselytism ( ibid., § 54). 2. Application of those principles to the present case 85. In applying the above principles to the case under consideration the Court will have regard to the decisions on admissibility of 26 October 2004 and 1 4 February 2006, defining the scope of the case to be examined on the merits (see paragraph 8 above). The question to be determined is whether the respondent State, in fulfilling its functions in respect of education and teaching, had taken care that information or knowledge included in the Curriculum for the KRL subject be conveyed in an objective, critical and pluralistic manner or whether it had pursued an aim of indoctrination not respecting the applicant parents ’ religious and philosophical convictions and thereby had transgressed the limit implied by Article 2 of Protocol No. 1. In examining this question, the Court will consider, in particular, the legislative framework of the KRL subject as it applied generally at the time when the case stood before the national courts. 86. From the outset it should be observed that Article 2 of the Constitution, which in its first paragraph guarantees freedom of religion, provides in its second paragraph that the Evangelical Lutheran Religion is to be the State ’ s official religion and confers on its adherents an obligation to educate their children likewise (see paragraph 9 above). 87. What is central to the present case is the legal framework as laid down, in particular, in sections 1-2(1) and 2-4 of the Education Act 1998, Circulars F-90-97 and F-03-98 issued by the Ministry, and the relevant parts of the Ten- Year Compulsory Schooling Curriculum. Regard should also be had to the legislative intentions behind the KRL subject as expressed during the preparatory works. In this connection it should be noted that the issue whether the teaching of the applicants ’ children had occurred in a manner contrary to the Convention falls outside the ambit of the cases as delimited by the decision on admissibility of 26 October 2004. This also applies to their argument that the school manuals had amounted to preaching and had been capable of influencing the pupils. 88. Turning to the drafting history first, it should be reiterated that a prevailing intention behind the introduction of the KRL subject was that, by teaching Christianity, other religions and philosophies together, it would be possible to ensure an open and inclusive school environment, irrespective of the pupil ’ s social background, religious creed, nationality or ethnic group and so on. The intention was that the school should not be an arena for preaching or missionary activities but a meeting place for different religious and philosophical convictions where pupils could gain knowledge about their respective thoughts and traditions (see paragraph 15 above). In the view of the Court, these intentions were clearly consonant with the principles of pluralism and objectivity embodied in Article 2 of Protocol No. 1. 89. The said intentions were indeed reflected in section 2-4 of the Education Act 1998 (see paragraph 2 3 above). As can be seen from its wording, the provision laid emphasis on the transmission of knowledge about not only Christianity but also other world religions and philosophies. It moreover stressed the promotion of understanding and respect for, and the ability to maintain dialogue between, people with different perceptions of beliefs and convictions. It was to be an ordinary school subject that should normally bring together all pupils and should not be taught in a preaching manner. The different religions and philosophies were to be taught from the standpoint of their particular characteristics and the same pedagogical principles were to apply to the teaching of the different topics. From the drafting history it emerges that the idea was that the aim of avoiding sectarianism and fostering intercultural dialogue and understanding could be better achieved with an arrangement, such as here, bringing pupils together within the framework of one joint subject rather than an arrangement based on full exemption and splitting pupils into sub-groups pursuing different topics (see paragraph 1 5 above). Moreover, it should be noted that, as follows from the statement of principle in paragraph 84 (g) above, the second sentence of Article 2 of Protocol No. 1 does not embody any right for parents that their child be kept ignorant about religion and philosophy in their education. That being so, the fact that knowledge about Christianity represented a greater part of the Curriculum for primary and lower secondary schools than knowledge about other religions and philosophies cannot, in the Court ’ s opinion, of its own be viewed as a departure from the principles of pluralism and objectivity amounting to indoctrination (see, mutatis mutandis, Angeleni v. Sweden, no 104 9 1/83, Commission decision of 3 December 1986, Decisions and Reports 51 ). In view of the place occupied by Christianity in the national history and tradition of the respondent State, this must be regarded as falling within the respondent State ’ s margin of appreciation in planning and setting the curriculum. 90. However, the Court observes that, while stress was laid on the teaching being knowledge-based, section 2-4(3) provided that the teaching should, subject to the parents ’ agreement and cooperation, take as a starting- point the Christian object clause in section 1-2(1), according to which the object of primary and lower secondary education was to help give pupils a Christian and moral upbringing (see paragraphs 2 2 -2 3 above). 91. It is further to be noted that the Christian object clause was compounded by a clear preponderance of Christianity in the composition of the subject. 92. In this regard, reference should be made to the stated aim in section 2-4(1)(i) of the Education Act 1998 to “transmit thorough knowledge of the Bible and Christianity in the form of cultural heritage and the Evangelical Lutheran Faith” (emphasis added). In contrast, no requirement of thoroughness applied to the knowledge to be transmitted about other religions and philosophies (see paragraph 2 3 above). In addition, pursuant to section 2-4(1)(ii), the transmission of knowledge of other Christian communities was an aim. The difference as to emphasis was also reflected in the Curriculum, where approximately half of the items listed referred to Christianity alone whereas the remainder of the items were shared between other religions and philosophies. The introduction stated that “The study of the subject is intended to give pupils a thorough insight into Christianity and what the Christian view of life implies, as well as sound knowledge of other world religions and philosophies [emphasis added]” (see paragraph 4 9 above). 93. It is unclear whether the word “Faith” in item (i) implied qualitative differences compared to non-Lutheran faiths and other philosophies (see paragraph 2 3 above). In any event, the above factors laying stress on Christianity must have had implications for the operation of another stated aim in section 2-4(1), namely to “(iv) promote understanding and respect for Christian and humanist values [emphasis added]” ( ibid. ), indicating something more and other than the mere transmission of knowledge. In this regard, it may be noted that the Curriculum contained certain nuances regarding the teaching objectives, for example, pupils in grades 5 to 7 “should learn the fundamentals of the Christian faith and Christian ethics in the light of the positions taken in Luther ’ s Small Catechism” [emphasis added]. Regarding other religions, however, “pupils should study the main features of and important narratives from Islam, Judaism, Hinduism and Buddhism”; and pupils should know about secular orientation, the development of humanist traditions” and so on [emphasis added]. For grade 6 it was stated that “[p]upils should have the opportunity to learn the Ten Commandments by heart and be acquainted with the ethical ideals underlying the Sermon of the Mount, [ and ] learn something of how these fundamental ethical texts have been used in the history of Christianity and how they are applied today”. There was no equivalent in the list of items “to become acquainted” with in regard to “Other religions, Judaism” (see paragraph 50 above ). 94. Moreover, section 2-4(4) implied that pupils could engage in “religious activities”, which would in particular include prayers, psalms, the learning of religious texts by heart and the participation in plays of a religious nature (see paragraphs 2 3 - 2 4 above). While it was not foreseen that such activities should relate exclusively to Christianity, but could also concern other religions, for example a visit to a mosque in the case of Islam, the emphasis on Christianity in the Curriculum would naturally also be reflected in the choice of educational activities proposed to pupils in the context of the KRL subject. As was recognised in the partial - exemption rule in section 2-4 of the Education Act 1998 and Circular F-03-98, it would be reasonable for parents to notify their intention regarding an exemption for the kinds of religious activities referred to above. In the Court ’ s view, it can be assumed that participation in at least some of the activities concerned, especially in the case of young children (see, mutatis mutandis, Dahlab v. Switzerland (dec.), no. 42393/98, ECHR 2001 ‑ V), would be capable of affecting pupils ’ minds in a manner giving rise to an issue under Article 2 of Protocol No. 1. 95. Thus, when seen together with the Christian object clause, the description of the contents and the aims of the KRL subject set out in section 2-4 of the Education Act 1998 and other texts forming part of the legislative framework suggest that not only quantitative but even qualitative differences applied to the teaching of Christianity as compared to that of other religions and philosophies. In view of these disparities, it is not clear how the further aim, set out in item (v), to “ promote understanding, respect and the ability to maintain a dialogue between people with different perceptions of beliefs and convictions ” could be properly attained. In the Court ’ s view, the differences were such that they could hardly be sufficiently attenuated by the requirement in section 2-4 that the teaching follow a uniform pedagogical approach in respect of the different religions and philosophies (see paragraph 2 3 above). 96. The question then arises whether the imbalance highlighted above could be said to have been brought to a level acceptable under Article 2 of Protocol No. 1 by the possibility for pupils to request partial exemption from the KRL subject under section 2-4(4) of the Education Act 1998. Under this provision “ [ a ] pupil shall, on the submission of a written parental note, be granted exemption from those parts of the teaching in the particular school concerned that they, from the point of view of their own religion or philosophy of life, consider as amounting to the practice of another religion or adherence to another philosophy of life”. In this regard the Court reiterates that, as pointed out in its admissibility decision of 14 February 2006, the limitations on the scope of the case that followed from the decision of 26 October 2004 declaring parts of the application inadmissible do not prevent it from considering the general aspects of the partial- exemption arrangement in its examination of the complaint regarding the refusal of full exemption (see paragraph 8 above). 97. In this connection the Court notes that the operation of the partial- exemption arrangement presupposed, firstly, that the parents concerned be adequately informed of the details of the lesson plans to be able to identify and notify to the school in advance those parts of the teaching that would be incompatible with their own convictions and beliefs. This could be a challenging task not only for parents but also for teachers, who often had difficulty in working out and dispatching to the parents a detailed lesson plan in advance (see paragraph 2 9 above). In the absence of any formal obligation for teachers to follow textbooks (see point 10 in the citation at paragraph 4 8 above), it must have been difficult for parents to keep themselves constantly informed about the contents of the teaching that went on in the classroom and to single out incompatible parts. To do so must have been even more difficult where it was the general Christian leaning of the KRL subject that posed a problem. 98. Secondly, pursuant to Circular F-03-98, save in instances where the exemption request concerned clearly religious activities – where no grounds had to be given – it was a condition for obtaining partial exemption that the parents give reasonable grounds for their request (see the citation from the Circular in the Supreme Court ’ s reasoning at paragraph 4 2 above). The Court observes that information about personal religious and philosophical conviction concerns some of the most intimate aspects of private life. It agrees with the Supreme Court that imposing an obligation on parents to disclose detailed information to the school authorities about their religious and philosophical convictions may constitute a violation of Article 8 of the Convention and possibly also of Article 9 ( ibid. ). In the present instance, it is important to note that there was no obligation as such for parents to disclose their own convictions. Moreover, Circular F-03-98 drew the school authorities ’ attention to the need to take duly into account the parents ’ right to respect for their private life ( ibid. ). The Court finds, nonetheless, that inherent in the condition to give reasonable grounds was a risk that the parents might feel compelled to disclose to the school authorities intimate aspects of their own religious and philosophical convictions. The risk of such compulsion was all the more present in view of the difficulties highlighted above for parents in identifying the parts of the teaching that they considered as amounting to the practice of another religion or adherence to another philosophy of life. In addition, the question whether a request for exemption was reasonable was apparently a potential breeding ground for conflict, a situation that parents might prefer simply to avoid by not expressing a wish for exemption. 99. Thirdly, the Court observes that even in the event that a parental note requesting partial exemption was deemed reasonable, this did not necessarily mean that the pupil concerned would be exempted from the part of the curriculum in question. Section 2-4 provided that “the school shall as far as possible seek to find solutions by facilitating differentiated teaching within the school curriculum”. A detailed outline with examples of how differentiated teaching was to be implemented may be found in Circular F ‑ 03-98, from which it can be seen that the teacher was to apply, in cooperation with the parents, a flexible approach, having regard to the parents ’ religious or philosophical affiliation and to the kind of activity in issue. The Court notes in particular that for a number of activities, for instance prayers, the singing of hymns, church services and school plays, it was proposed that observation by attendance could suitably replace involvement through participation, the basic idea being that, with a view to preserving the interest of transmitting knowledge in accordance with the curriculum, the exemption should relate to the activity as such, not to the knowledge to be transmitted through the activity concerned (see paragraph 4 8 above). However, in the Court ’ s view, this distinction between activity and knowledge must not only have been complicated to operate in practice but also seems likely to have substantially diminished the effectiveness of the right to a partial exemption as such. Besides, on a purely practical level, parents might have misapprehensions about asking teachers to take on the extra burden of differentiated teaching (see paragraph 2 9 above). 100. In the light of the above, the Court finds that the system of partial exemption was capable of subjecting the parents concerned to a heavy burden with a risk of undue exposure of their private life and that the potential for conflict was likely to deter them from making such requests. In certain instances, notably with regard to activities of a religious character, the scope of a partial exemption might even be substantially reduced by differentiated teaching. This could hardly be considered consonant with the parents ’ right to respect for their convictions for the purposes of Article 2 of Protocol No. 1, as interpreted in the light of Articles 8 and 9 of the Convention. 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” ( see Öcalan v. Turkey [GC], no. 46221/99, § 135, ECHR 2005 ‑ IV ). 101. According to the Government, it would have been possible for the applicant parents to seek alternative education for their children in private schools, which were heavily subsidised by the respondent State, as it funded 85% of all expenditure connected to the establishment and running of private schools. However, the Court considers that, in the instant case, the existence of such a possibility could not dispense the State from its obligation to safeguard pluralism in State schools which are open to everyone. 102. Against this background, notwithstanding the many laudable legislative purposes stated in connection with the introduction of the KRL subject in the ordinary primary and lower secondary schools, it does not appear that the respondent State took sufficient care that information and knowledge included in the curriculum be conveyed in an objective, critical and pluralistic manner for the purposes of Article 2 of Protocol No. 1. Accordingly, the Court finds that the refusal to grant the applicant parents full exemption from the KRL subject for their children gave rise to a violation of Article 2 of Protocol No. 1. II. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLES 8 AND 9 AND ARTICLE 2 OF PROTOCOL No. 1 103. The applicants argued that the system of partial exemption entailed difficulties and burdens for the parents that gave rise to discrimination. In contrast, the previous system with a general exemption and a non-confessional, pluralistic philosophy of life subject for those exempted would have satisfied both the school obligations and the parental rights as protected by the Convention. 104. The Government disputed the contention that requiring parents to request exemption from particular elements of the KRL subject (partial exemption) amounted to discrimination in violation of Article 14. The exemption clause of the Education Act 1998 was non-discriminatory. Exemptions were available to the same extent for all parents, regardless of, in the words of Article 14, “sex, race, colour, language, religion, political or other opinion, national or social origin ... ”. The exemption clause did not draw a line between Christians on the one hand and non-Christians on the other hand. Other subjects, such as history, music, physical education and social studies, might also give rise to religious or ethical issues. The exemption clause included in section 2-4 of the Education Act 1998 applied to all subjects. In the reasoning of the parents, allowing for only partial exemption from these subjects would also be discriminatory. In the Government ’ s view, the only viable system both for those subjects and for the KRL subject was to allow for partial exemptions. If that were to constitute discrimination, Article 14 would render the implementation of most compulsory education impossible. 105. The Court, having regard to its findings above (see paragraphs 96 to 102 above), does not find it necessary to carry out a separate examination in relation to Article 14 of the Convention taken in conjunction with Articles 8 and 9 and Article 2 of Protocol No. 1. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 106. 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 107. The applicants sought no compensation for pecuniary damage but claimed an amount in respect of non-pecuniary damage, the amount of which was to be determined by the Court according to its own discretion, for suffering and distress caused by the violation of the Convention in their case. 108. The Government did not offer any comments on the above claim. 109. The Court ’ s finding of a violation will have effects extending beyond the confines of this particular case, since the violation found stems directly from the contested legal framework and not from its manner of implementation. In view of the readiness expressed by the Government to review the KRL subject, the Court is of the opinion that its finding of a breach of Article 2 of Protocol No. 1 constitutes sufficient just satisfaction for the purposes of Article 41 of the Convention. B. Costs and expenses 110. The applicants further sought the reimbursement of legal costs and expenses totalling 979,798 Norwegian kroner (“NOK”, approximately 117,000 euros (“EUR”)), in respect of the following items: (a) NOK 308,558 incurred before the domestic courts; (b) NOK 637,066 for the lawyer ’ s work in the proceedings before the Court from 2002 to 2006; (c) NOK 34,174 for the travel expenses for counsel, advisers and the applicants in connection with the oral hearing in Strasbourg on 6 December 2006. The above amounts included value- added tax (“VAT”). 111. The Government stated that they had no objection to the above claims. 112. According to the Court ’ s case-law, an applicant is entitled to reimbursement of his or her costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and were reasonable as to quantum. In the present case, regard being had to the information in its possession and the above criteria, the Court considers it reasonable to award items (a) and (c ) in their entirety. As to item (b), however, the Court, noting that parts of the application were declared inadmissible, is not satisfied that all the costs and expenses were necessarily incurred in order to obtain redress for the violation of the Convention. It considers it reasonable to award a total sum of EUR 70,000 for the applicants ’ costs and expenses (inclusive of VAT). C. Default interest 113. The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. | The Court held that there had been a violation of Article 2 (right to education) of Protocol No. 1 to the Convention. It found in particular that the curriculum of KRL gave preponderant weight to Christianity by stating that the object of primary and lower secondary education was to give pupils a Christian and moral upbringing. The option of having children exempted from certain parts of the curriculum was capable of subjecting the parents concerned to a heavy burden with a risk of undue exposure of their private life, and the potential for conflict was likely to deter them from making such requests. At the same time, the Court pointed out that the intention behind the introduction of the new subject that by teaching Christianity, other religions and philosophies together, it would be possible to ensure an open and inclusive school environment, was in principle consistent with the principles of pluralism and objectivity embodied in Article 2 of Protocol No. 1. |
35 | Education | RELEVANT LEGAL FRAMEWORK AND PRACTICE Domestic lawsConstitution Constitution Constitution 17. Article 18 of the Constitution provides: “1. All are equal before the law. 2. No one may be unfairly discriminated against for reasons such as gender, race, religion, ethnicity, language, political, religious or philosophical beliefs, economic condition, education, social status, or parentage. 3. No one may be discriminated against for the reasons mentioned in paragraph 2 without a reasonable and objective justification.” 18. Article 57 provides that everyone has the right to education. Education Act of 2012 (Law no. 69/2012 of 21 June 2012 on the pre-university educational system in the Republic of Albania) 19. The general principles applicable to educational institutions are provided under section 6 of Education Act of 2012. Paragraph 4 of that section reads: “In educational institutions the principle of inclusiveness of pupils shall be applied.” Anti-Discrimination Act of 2010 20. The Anti-Discrimination Act (Law no. 10221 of 4 February 2010), as in force prior to its amendment by Law no. 124/2020 of 15 October 2020, provided for the principle of equality before the law in connection to everyone’s gender, race, ethnicity, and a number of other grounds (section 1). 21. Section 3 (3) of the Act defined “indirect discrimination” as a form of discrimination that occurs when a provision, criterion or practice which appears neutral, puts a person or group of persons in an unfavourable situation on the grounds set forth in section 1 of the Act, in comparison to another person or group of persons and when that provision, criterion or practice is not justified by a legitimate aim, or when the means of achieving that aim either are not appropriate or are not necessary and proportionate to the situation that caused it. 22. Section 3 (9) of the Act defined “organisations with legitimate interests” as organisations that are registered in the Republic of Albania and have as their declared object of activity the protection of human rights, or that offer assistance to victims of discrimination. Section 33 (1) of the Act provided that an organisation with legitimate interests that claims discrimination on behalf of a person or a group of persons may file a complaint with the Commissioner together with any available evidence. 23. Section 7 (1) of the Act provided: “Any action or inaction of public authorities or natural or legal persons that participate in the public or private sectors, which creates the basis for a breach the [principle of] equality towards a person or group of persons, or which exposes them to an unfair and unequal treatment, when they are in the same or similar circumstances as another person or group of persons, amounts to discrimination.” 24. Section 18 (1) of the Act reads: “The Council of Ministers and the Minister of Education and Science are responsible for taking measures of a positive nature to combat discrimination in relation to the right to education.” 25. Sections 21 and 22 of the Act provided for the establishment of the Commissioner against Discrimination, an independent public authority tasked to ensure effective protection against discrimination. The Commissioner was to be appointed by Parliament for a five-year term which could be renewed once (sections 23 and 25). Under section 26 of the Act the Commissioner was to report to Parliament by way of an annual report on its activities. 26. The Commissioner is competent to hear discrimination complaints by natural persons or organisations, carry out administrative enquiries and impose administrative sanctions (section 32 (1) (a), (b) (c) and (ç)). 27. Moreover, under section 32 (1) (f) the Commissioner is competent to publish reports and put forward recommendations for any matter related to discrimination. 28. Pursuant to section 32 (3), in reviewing the complaints submitted before her, except when a specific procedure was provided under the act, the Commissioner had to apply the Code of Administrative Procedure and she was to decide by way of a decision that would set forth the appropriate measures to be taken and a time-limit for their implementation (section 33 (10)). 29. Under section 33(11) the Commissioner can also issue a fine to the party that fails to implement its decisions. 30. Section 34 of the act provided that anyone who had been discriminated against had the right to seek damages before the competent court independently from whether he or she had filed a complaint with the Commissioner. Law no. 124/2020 of 15 October 2020 amending the Anti-Discrimination Act of 2010 31. Section 3 (16) of the amended Anti-Discrimination Act defines “segregation” as a form of discrimination which occurs in cases where a person or group of persons are separated from others without an objective and reasonable justification, and this separation is made on the grounds of at least one of the reasons provided in section 1 of the Act. 32. Section 33 (18) of the amended Anti-Discrimination Act provides that the Commissioner’s decision may be challenged before the competent court pursuant to rules applicable to administrative disputes. Code of Administrative Procedure 33. Article 18 of the Code of Administrative Procedure of 1999 (Law no. 8485 of 12 May 1999, as amended), as in force until 28 May 2016, sanctioned the principle of judicial control over administrative decisions. 34. Article 130 and 131 provided that administrative acts were enforceable upon their entry in force, except when an appeal having suspensory effect had been lodged. Other materials 35. In its 2015 annual report to the Parliament, the Commissioner stated that she had acted as a defendant in fourteen judicial proceedings where the parties had challenged its decisions before the courts, the latter being administrative acts. 36. By way of a decision no. 1072 of 23 December 2015 the Council of Ministers adopted the “National Plan for the Integration of Roma and Egyptians in the Republic of Albania 2016-2020”. One of the strategic objectives of the plan was the increase of the Roma and Egyptians’ access to education without discrimination or segregation. 37. The Council of Ministers’ decision no. 682 of 29 September 2017, as amended, set forth, amongst others, the procedures pursuant to which public funds were to be used for the purpose of transporting students into their respective schools if they resided a certain distance from them. Council of Europe materials 38. In a report of 15 February 2006 on the Human Rights Situation of the Roma, Sinti and Travellers in Europe (CommDH(2006)1), the Council of Europe Commissioner for Human Rights noted that segregated education denied both Roma and non-Roma children the chance to know each other and to learn to live as equal citizens. The Commissioner further noted that segregation excluded Roma children from mainstream society at the very beginning of their lives, increasing their risk of being caught in the vicious circle of marginalisation. 39. In Recommendation CM/Rec(2009)4 on the education of Roma and Travellers in Europe (adopted on 17 June 2009 at the 1061st meeting of the Ministers’ Deputies), the relevant parts of which have been set out in Oršuš and Others v. Croatia ([GC], no. 15766/03, §§ 79-80 ECHR 2010), the Committee of Ministers recommended that where de facto segregation of Roma and Traveller children based on their racial or ethnic origin exists, authorities should implement desegregation measures. 40. In Resolution 1927 (2013) of 23 April 2013 on ending discrimination for Roma children, the Parliamentary Assembly of the Council of Europe urged member States to end school segregation and promote inclusion by, amongst others, requiring local municipalities to produce desegregation plans (§ 7.3.3). 41. On 12 September 2017 the Council of Europe Commissioner for Human Rights published a position paper [1] on fighting school segregation in Europe through inclusive education. The paper provided a number of recommendations to address school segregation and achieve inclusive education including, amongst others, the adoption of desegregation strategies, regulating and monitoring school admissions and defining socially balanced school districts. 42. The relevant extract of the Report (CommDH(2018)15) of 13 September 2018 by the Commissioner for Human Rights of the Council of Europe, following her visit to Albania from 21 to 25 May 2018, reads as follows: “While noting with satisfaction that the principle of inclusive education and the prohibition of discrimination in education are enshrined in Albanian legislation, the Commissioner is concerned about the lack of inclusion of some Albanian children, in particular Roma children [...], in mainstream education.” 43. The Report on Albania of the European Commission against Racism and Intolerance (ECRI) (sixth monitoring cycle), adopted on 7 April 2020 and published on 2 June 2020, contains the following passages: “46. In their report [...], the authorities state that segregation of Roma and Egyptian children in schools does not exist. However, in recent years segregation has been reported in some schools, namely in Korca, Morava and Elbasan. Roma NGOs also mentioned an alleged case in Shkodra in this regard. ECRI visited Korca and had meetings with the city’s administration and representatives of the Roma community. It understands that the situation regarding segregation in the schools is not one created intentionally, but the result of a traditionally very high concentration of Roma and Egyptians in particular neighbourhoods of the city (neighbourhoods 6, 8 and 17). In this area, the three existing schools have a majority of Roma and Egyptian pupils with 530 out of 700 (according to self-declaration, since no ethnicity is recorded in the civil registry). The overall average by school is 70%: Naim Frasheri (95%), Asdreni (51%), Ismail Qemali (67%). ECRI noted a constructive and pragmatic approach by the Mayor and his team to resolve this issue. In response to complaints about its sub-standard conditions, €250 000 have been spent on renovating and refurbishing the Naim Frashëri school, which as a result is now considered to be among the best in the city in terms of material infrastructure. Furthermore, as concerns the ethnic make-up of the pupils, the municipal administration is considering merging two of the three schools so that none has a higher ratio than 75% of Roma or Egyptian children. Apparently, a similar attempt to mix pupils is considered in Shkodra, for example by providing transport to different school districts [footnote references omitted]. 47. ECRI recommends that the authorities closely monitor the situation regarding de facto structural segregation of Roma and Egyptian pupils in schools and assist, if necessary, local authorities in finding workable solutions to address this problem.” 44. In its General Policy Recommendation No. 13 on combating antigypsyism and discrimination against Roma, adopted on 24 June 2011 and amended on 1 December 2020, the ECRI recommended that the governments of member States of the Council of Europe take urgent measures, including legal and political ones, to put an end to the segregation at school which Roma children are subjected to, and integrate them into schools attended by pupils from the majority population (§4 (d)). European commission progress reports 45. The European Commission issues annual progress reports on countries which wish to accede to the European Union. The reports analyse, amongst other things, the capacity of such countries to implement European standards. 46. In the 2014 report on Albania (SWD(2014) 304) the European Commission stated that “Roma and Egyptian children are still not fully integrated in the education system which occasionally leads to segregation and exclusion” (page 62). 47. The 2016 report (SWD(2016) 364) stated that “[s]chool segregation is a matter of serious concern” (page 68). A similar finding appears in the 2018 report (SWD(2018)151) (page 32) where the European Commission added that Albania should “tackle segregation in the education field for vulnerable groups, in particular for Roma and Egyptians” (page 25), as well as in the 2019 report (SWD(2019) 215) (page 32), the 2020 report (SWD(2020)354) (page 38) and the 2021 report (SWD(2021)289) (page 36). Other international materials 48. The United Nations (UN) International Convention on the Elimination of All Forms of Racial Discrimination was adopted in New York on 21 December 1965 and came into force in respect of Albania on 11 May 1994. Articles 2 and 3 are worded as follows: Article 2 “1. States Parties condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races, and, to this end: (a) Each State Party undertakes to engage in no act or practice of racial discrimination against persons, groups of persons or institutions and to ensure that all public authorities and public institutions, national and local, shall act in conformity with this obligation; (b) Each State Party undertakes not to sponsor, defend or support racial discrimination by any persons or organisations; (c) Each State Party shall take effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists; (d) Each State Party shall prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination by any persons, group or organisation; (e) Each State Party undertakes to encourage, where appropriate, integrationist multiracial organisations and movements and other means of eliminating barriers between races, and to discourage anything which tends to strengthen racial division. 2. States Parties shall, when the circumstances so warrant, take, in the social, economic, cultural and other fields, special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms. These measures shall in no case entail as a consequence the maintenance of unequal or separate rights for different racial groups after the objectives for which they were taken have been achieved.” Article 3 “States Parties particularly condemn racial segregation and apartheid and undertake to prevent, prohibit and eradicate all practices of this nature in territories under their jurisdiction.” THE LAW JOINDER OF THE APPLICATIONS 49. Having regard to the similar subject matter of the applications, the Court finds it appropriate to examine them jointly in a single judgment pursuant to Rule 42 § 1 of the Rules of the Court. Preliminary issues 50. The Court notes in respect of the first application, no. 73548/17, that applicants nos. 14 to 18 informed the Court that they wished to withdraw from the application. Applicants nos. 16, 17 and 18 subsequently lodged the second application, no. 45521/19. 51. Accordingly, having regard to Article 37 § 1 (a) of the Convention, the Court concludes that it is no longer justified to continue the examination of application no. 73548/17 insofar as it concerns applicants nos. 14 to 18. Furthermore, in accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of this part of the application. 52. In view of the above, it is appropriate to strike out the part of application no. 73548/17 insofar as it concerns applicants nos. 14 to 18, without prejudice to the second application, no. 45521/19 which was subsequently lodged with the Court by applicants nos. 16, 17 and 18. ALLEGED VIOLATION OF ARTICLE 1 OF protocol No. 12 to THE CONVENTION 53. The applicants complained under Article 1 of Protocol No. 12 to the Convention that they were discriminated against in their right to an inclusive education as a result of the authorities’ failure to implement desegregating measures to address the over-representation of Roma/Egyptian pupils in the “Naim Frashëri” school. 54. Article 1 of Protocol No. 12 to the Convention, reads as follows: “1. The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. 2. No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.” 55. Protocol No. 12 to the Convention was ratified by Albania on 26 November 2004 and entered in force in respect of that country on 1 April 2005. AdmissibilityThe parties’ submissions The parties’ submissions The parties’ submissions 56. The Government submitted that the recommendations of the People’s Advocate and the Commissioner, as well as the latter’s decision of 22 September 2015, were insufficient to conclude that the applicants had exhausted domestic remedies which could be exhausted only by lodging a discrimination claim with domestic courts pursuant to Section 34 of the Anti-Discrimination Act (see paragraph 30 above). They also submitted a number of domestic judgments which had recognized discrimination claims and had awarded damages to plaintiffs. 57. The applicants contested that view and submitted that the domestic judgments relied on by the Government were issued in cases where there was a dispute about whether the plaintiffs had suffered from discrimination. They argued that the Commissioner against Discrimination was the competent domestic authority to hear discrimination complaints and reiterated that neither the Ministry nor any other party had challenged the conclusion of the Commissioner that the pupils of the school were subjected to discrimination. In view of the absence of a dispute over that point, they expected the authorities to implement the decision of 22 September 2015 of the Commissioner against Discrimination and argued that it would have been futile to start additional judicial proceedings for the purpose of obtaining another finding that the discrimination of pupils in the school must come to an end. In addition, the applicants submitted that their primary purpose was to put the school segregation to an end rather than obtain damages. 58. Finally, the applicants maintained that the public interest litigation initiated by ERRC before the Commissioner against Discrimination corresponded to the complaint that they have brought before the Court. The Court’s assessment 59. The Court reiterates that the rationale behind the exhaustion rule is to afford the Contracting States the opportunity to prevent or put right the violations alleged against them before those allegations are submitted to the Convention institutions. It is based on the assumption, reflected in Article 13, that the domestic legal order will provide an effective remedy for violations of Convention rights. This is an important aspect of the subsidiary nature of the Convention machinery (see, for example, Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999 ‑ V ). Indeed, the Court has frequently held that, in accordance with the principle of subsidiarity, it is appropriate that the national courts should initially have the opportunity to determine questions of compatibility of the domestic law with the Convention and that, if an application is nonetheless subsequently brought to it, the Court should have the benefit of the views of the national courts, being in direct and continuous contact with the driving forces of their countries (see Burden v. the United Kingdom [GC], no. 13378/05, § 42, ECHR 2008). 60. At the same time, there is a need to apply the rule with some degree of flexibility and without excessive formalism, given the context of protecting human rights (see Ringeisen v. Austria, 16 July 1971, § 89, Series A no. 13). The rule of exhaustion is neither absolute nor capable of being applied automatically; in monitoring compliance with this rule it is essential to have regard to the circumstances of the individual case (see Kozacıoğlu v. Turkey [GC], no. 2334/03, § 40, 19 February 2009). 61. Turning to the present case, the Government did not develop in detail their argument that only judicial proceedings are capable of satisfying the requirement to exhaust domestic remedies. However, it appears that their argument was based on the allegation that the Commissioner and its decisions had an administrative – rather than judicial – nature. 62. In this connection, the Court notes that under Albanian law the Commissioner against Discrimination is an independent authority with the power to issue binding decisions on both public and private entities and to order anti-discrimination measures to be implemented by such entities (see paragraph 28 above). The Commissioner’ decisions can be challenged before the courts (see paragraphs 32 and 35 above). In the absence of any appeal by the Ministry, the Commissioner’s decision of 22 September 2015 became final and enforceable (see paragraph 34 above, and, mutatis mutandis, Ramadhi and Others v. Albania, no. 38222/02, § 49, 13 November 2007 where the Court held that irrespective of whether the final decision to be executed takes the form of a court judgment or a decision by an administrative authority, domestic law as well as the Convention provides that it is to be enforced). 63. In response to the Government’s argument that the applicants could have sought damages before domestic courts, the Court reiterates that the domestic remedies must be “effective” in the sense either of preventing the alleged violation or its continuation, or of providing adequate redress for any violation that had already occurred (see A.H. and Others v. Russia, nos. 6033/13 and 15 others, § 347, 17 January 2017). In the present case the crux of the applicants’ complaints concerned the authorities failure to put an end to an ongoing situation, namely the segregation of their school. Accordingly, a remedy that offered the prospect of financial compensation alone, without preventing the continuation of the alleged violation, cannot be considered effective (see, mutatis mutandis, Patranin v. Russia, no. 12983/14, § 86, 23 July 2015 ). In this connection, the Government failed to explain why a discrimination court proceeding had been necessary when the authorities did not dispute the discrimination of the applicants. Similarly, the government did not explain why the desegregation measures which all parties considered to be necessary would have been implemented more effectively if ordered by a court judgment compared to an independent administrative authority such as the Commissioner (see, mutatis mutandis, Lavida and Others v. Greece, no. 7973/10, §§ 47-48, 30 May 2013). 64. The Court further notes that the Government did not take issue with the fact that it was the ERRC – rather than the applicants – who complained to the Commissioner against Discrimination about the situation in the school. In view of the Commissioner’s decision to recognize ERRC’s standing before that authority, the Court has no reason to doubt that domestic law provided for the ERRC’s right to initiate the proceedings in question on behalf of the Roma and Egyptian pupils attending the “Naim Frashëri” school (see, mutatis mutandis, Kósa v. Hungary (dec.), no. 53461/15, §§ 56-57, 21 November 2017, and J.M.B. and Others v. France, nos. 9671/15 and 31 others, § 214, 30 January 2020). Neither was it disputed before the Court that the subject matter of ERRC’s complaint and the ensuing Commissioner’s decision of 22 September 2015 corresponded to the individual situation and specific complaints of the applicants before the Court. 65. Accordingly, the applicants were not required to file a discrimination claim, which had essentially the same objective as ERRC’s action before the Commissioner (see Kozacıoğlu, cited above, § 40), before domestic courts. The Government’s non-exhaustion objection is therefore dismissed. 66. The Court notes that the applications are neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. They must therefore be declared admissible. MeritsThe parties’ submission The parties’ submission The parties’ submission 67. The applicants submitted that their segregation in the “Naim Frashëri” school amounted to discrimination on the grounds of their ethnicity prohibited by Article 1 of Protocol No. 12 to the Convention and that the authorities had not implemented the desegregating measures that they themselves had proposed such as the merger between different schools to obtain more inclusive classes. 68. The Government submitted that the segregation complained of was the result of the demographic changes in the areas around the school where many non-Roma/Egyptian inhabitants had moved out of the area and many Roma/Egyptian inhabitants had moved in. 69. As regards the food support scheme, the Government stated that such support had been requested by many representatives of the Roma and Egyptian inhabitants, including the applicants’ representative. They further stressed that the authorities had not prevented the applicants from attending a different school or the other pupils from attending the “Naim Frashëri” school. Therefore they had not contributed in any way to the situation complained of. 70. Furthermore, the Government submitted that they had taken several measures to implement the Commissioner’s decision of 22 September 2015, including the adoption of the National Plan for the Integration of Roma and Egyptians in the Republic of Albania 2016 – 2020 (see paragraph 36 above), the extension of the food support scheme to all school pupils and the reconstruction of the school which ended in time for the 2019/20 academic year. 71. In view of the absence of any discriminatory intent or action by the authorities and the measures adopted to address the situation, the Government concluded there had been no violation of Article 1 of Protocol No. 12 to the Convention. Third party’s submissions in respect of the application no. 73548/17 72. The third party intervener – T’Reja Center – primarily made submissions on the general principles within which to examine applications and provided a number of observations on the situation of Roma and Egyptian children in Albania. 73. In particular, they submitted that school segregation is one of the most severe forms of discrimination. In their view segregation of Roma/Egyptian pupils undermined their ability to learn in a diversified environment and to acquire essential life skills through contact with other pupils. 74. Moreover, T’Reja Center also submitted statistics which in their view showed that segregation of Roma/Egyptian pupils existed in numerous schools in Albania. The Court’s assessment (a) Relevant principles 75. Notwithstanding the difference in scope between Article 14 of the Convention and Article 1 of Protocol No. 12, the meaning of the notion of “discrimination” in Article 1 of Protocol No. 12 was intended to be identical to that in Article 14 (see paragraphs 18 and 19 of the Explanatory Report to Protocol No. 12). In applying the same term under Article 1 of Protocol No. 12, the Court therefore sees no reason to depart from the established interpretation of “discrimination” (see Sejdić and Finci v. Bosnia and Herzegovina [GC], nos. 27996/06 and 34836/06, § 55, ECHR 2009, and Napotnik v. Romania, no. 33139/13, § 69, 20 October 2020). 76. It can further be inferred that, in principle, the same standards developed by the Court in its case-law concerning the protection afforded by Article 14 are applicable to cases brought under Article 1 of Protocol No. 12 (see, for example, ibid., § 70). 77. In this vein, the Court has established that discrimination means treating differently, without an objective and reasonable justification, persons in relevantly similar situations. However, 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 Article 14 (see Horváth and Kiss v. Hungary, no. 11146/11, § 101, 29 January 2013). 78. The Court has also held that the coexistence of members of society free from racial segregation is a fundamental value of democratic societies (see Vona v. Hungary, no. 35943/10, § 57, ECHR 2013). 79. As regards the particular sphere of school segregation, the Court has adopted a number of judgments which concerned different contexts. The case of D.H. and Others v. the Czech Republic ([GC], no. 57325/00, ECHR 2007 ‑ IV) concerned a situation where a nationwide practice of placing a disproportionate number of Roma children in schools for pupils with learning difficulties amounted to discrimination based on the applicants’ ethnic origin. 80. In Oršuš and Others v. Croatia ([GC], no. 15766/03, ECHR 2010) the applicants were Croatian nationals of Roma ethnic origin who had been placed in separate Roma-only classes from time to time during their education on account of their insufficient command of the Croatian language. The Court found a violation of the prohibition of discrimination on account of, amongst others, the authorities’ failure to take all the necessary steps to ensure the applicants’ speedy progress in learning the language and their subsequent integration into mixed classes. (b) Application of the principles to the present case 81. The Court notes at the outset that the right to inclusive education, in the enjoyment of which the applicants alleged to have been treated differently, was provided for by domestic law (see paragraphs 18 and 19 above). 82. The Government did not dispute that the applicants’ situation amounted to segregation and that desegregation measures were called for, neither had these points been disputed by the Ministry in the domestic proceedings (see paragraphs 5, 6 and 62 above), their only arguments being that that situation had been unintentional. 83. In that connection, the Court notes that the “Naim Frashëri” school was not created exclusively for Roma/Egyptian children. Moreover, the applicants did not allege that their segregation was intentional. However, the Court has already held in the past that discrimination that is potentially contrary to the Convention may result from a de facto situation (see Zarb Adami v. Malta, no. 17209/02, § 76, ECHR 2006 ‑ VIII) and does not necessarily require discriminatory intent ( D.H. and Others v. the Czech Republic, cited above, § 184). 84. In the Court’s view, the salient question is therefore whether the Government complied with their positive obligation to take steps to correct the applicants’ factual inequality and avoid the perpetuation of the discrimination that resulted from their over-representation in the school (see paragraphs 24 and 77 above and, mutatis mutandis, Horváth and Kiss, cited above, § 116 and § 127 ) thereby breaking their circle of marginalization and allowing them to live as equal citizens from the early stages of their life (see paragraph 38 above). In this regard, the Government stated that the authorities took immediate action to address the applicant’s segregation. However, the Court notes that the decision to remove the ethnicity criterion for the pupils that benefited from the food support programme, in an effort to attract pupils of all ethnicities in the school, was adopted on 22 February 2017 (see paragraph 10 above), almost one and a half years after the Commissioner’s decision of 22 September 2015. The Government did not put forward an explanation for this delay, or the delay in the implementation of the second measure ostensibly carried out to diversify the student body of the school, namely the renovation of the school building which ended in September 2019, four years after the Commissioner’s decision. In the Court’s view, these delays were incompatible with the time sensitivity of a situation where children were segregated and with the Commissioner’s decision that measures be taken “immediately” (see paragraph 8 above). 85. Most importantly, the Government did not set forth any objective reason for failing to implement two of the measures that were discussed in the Ministry’s letters of 14 December 2015 and 14 April 2017 (see paragraphs 9 and 11 above), namely the extension of the food support programme to four additional schools in the area – which could presumably encourage some of the Roma/Egyptian pupils of the school to move to other schools – and the merger of the “Naim Frashëri” school with three other schools (see paragraphs 9 and 11 above). Both these measures were likely to have a more immediate beneficial effect on the Roma and Egyptian children. In this regard, the Court is unable to accept the authorities’ justification that the merger was not implemented due to the reconstruction of the “Naim Frashëri” school, as the reconstruction work lasted only for a limited period of time (see paragraph 12 above). By as late as the 2019/20 academic year the Roma/Egyptian pupils continued to represent 90% of the schools’ pupils. 86. In view of the Government’s argument that the segregation complained of was caused by the concentration of the Roma/Egyptian population in particular neighbourhoods near the segregated school, the authorities’ proposal to merge the latter with non-segregated schools in the city appeared a very pertinent solution indeed. Such a merger could have contributed to the creation of schools where the ratio between Roma/Egyptian and other pupils was reasonably proportional to the city-wide ratio for elementary schools. The authorities had already implemented similar solutions in respect of segregated schools elsewhere in the country where in addition they had also provided transportation for the pupils (see paragraphs 16, 37 and 43 above). While it is not for the Court to indicate the specific measures to be undertaken to remedy a school segregation situation, it is nevertheless difficult to understand the reasons why this approach was not implemented in the present case too. 87. The Court observes that it has already found a violation of the prohibition of discrimination in a similar context where the State had failed to implement desegregating measures (see Lavida and Others, cited above, § 73 ). It considers that in the present case too, the delays and the non-implementation of appropriate desegregating measures cannot be considered as having had an objective and reasonable justification. 88. There has accordingly been a violation of Article 1 of Protocol No. 12 to the Convention. APPLICATION OF ARTICLES 41 and 46 OF THE CONVENTIONArticle 41 of the Convention Article 41 of the Convention Article 41 of the Convention 89. 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 90. The applicants claimed 4,500 euros (EUR) for each child applicant in respect of non-pecuniary damage. 91. The Government submitted that the claim is unreasonable and unsubstantiated. 92. Regard being had to the documents in its possession and to its case ‑ law (see, in particular, Lavida and Others, cited above, § 80), the Court considers it reasonable to award EUR 4,500 per applicants’ household in respect of non-pecuniary damage. Costs and expenses 93. The applicants did not submit any claim for costs and expenses. Accordingly, the Court does not award them any sum under that head. Default interest 94. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. Article 46 of the Convention 95. Article 46 of the Convention 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.” 96. The Court reiterates that, by virtue of Article 46 of the Convention, the Contracting Parties have undertaken to abide by the final judgments of the Court in any case to which they are parties, with execution being supervised by the Committee of Ministers of the Council of Europe. It follows, inter alia, that where the Court finds a breach in a judgment it imposes a legal obligation on the respondent State, whether or not the applicant has requested just satisfaction, to select, subject to supervision by the Committee of Ministers, the general and/or, if appropriate, individual measures to be adopted in its domestic legal order to put an end to the violation found by the Court and to redress the effects as far as possible. 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, provided that such means are compatible with the conclusions and the spirit of the Court’s judgment (see Aliyev v. Azerbaijan, nos. 68762/14 and 71200/14, § 221, 20 September 2018, with further references). In view of the violation found in the present case, the Court considers that measures to be taken must ensure the end of the discrimination of Roma and Egyptian pupils of the “Naim Frashëri” school, as ordered by the Commissioner’s decision of 22 September 2015. | The Court held that there had been a violation of Article 1 (general prohibition of discrimination) of Protocol No. 12 to the Convention in the present case, finding that the State had failed to implement desegregating measures. It recalled in particular that it had already found a violation of the prohibition of discrimination in a similar context in Lavida and Others v. Greece (see above). It concluded that likewise, in the instance case, the delays and the non-implementation of appropriate desegregating measures could not be considered as having had an objective and reasonable justification. Under Article 46 (binding force and execution of judgments) of the Convention, the Court further noted that Albania had to take measures to end the discrimination of Roma and Egyptian pupils of the “Naim Frashëri” school as ordered by the Commissioner’s decision. |
828 | Removal of / Limitations on legal capacity and right to vote | RELEVANT LEGAL FRAMEWORK RELEVANT DOMESTIC LAWRight to vote of persons deprived of legal capacity Right to vote of persons deprived of legal capacity Right to vote of persons deprived of legal capacity 13. Article 42 § 1 of the Bulgarian Constitution provides as follows : “Every citizen above the age of 18, with the exception of those placed under guardianship ( запрещение ) or serving a prison sentence, shall be free to elect State and local authorities and vote in referendums.” 14. The relevant provisions of the 2014 Election Code read as follows: Chapter I List of voters Article 27 “(1) The names of citizens who have lost their right to vote as at the date of elections or who are dead – as well as the names of persons in respect of whom this code so provides – must be removed from the list of voters. ... (3) ... [the names of] persons who have had their legal capacity restored to them ... will be added to the list of voters upon presentation of the respective document issued by the [relevant] municipality, region or mayor. ...” Chapter VII List of removed persons Contents of the list Article 38 “(1) A list of persons (which shall include their permanent addresses) who have been removed from the electoral register is prepared – by the director of the Department for Civil Registration and Administrative Services of the Ministry of Regional Development and Public Works. (2) The list includes the names, the personal identification number, and the grounds for the removal of persons who: 1. are placed under guardianship ...” Legal incapacitation 15. The relevant provisions related to the legal status of persons placed under partial guardianship and their representation before the courts, as well as to the procedures for placement under partial guardianship and for restoration of legal capacity have been summarised in Stanev v. Bulgaria ([GC] no. 36760/06, §§ 42-47, and 51-52, ECHR 2012). In execution of this latter judgment, the Bulgarian authorities have enacted a number of legislative amendments among which the introduction, on 27 October 2017 under Article 340 (2) of the 2007 Civil Procedure Code, of the right to a direct access to a court for the persons placed under guardianship ( запрещение ) in order to request the restoration of their legal capacity. INTERNATIONAL and european LEGAL INSTRUMENTS AND COMPARATIVE PRACTICE 16. The relevant international and European material concerning the right to vote of individuals deprived of legal capacity have been summarised in Strøbye and Rosenlind v. Denmark (nos. 25802/18 and 27338/18, §§ 66-71, 2 February 2021) and Caamaño Valle v. Spain (no. 43564/17, §§ 21-28, 11 May 2021). THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF PROTOCOL NO. 1 TO THE CONVENTION 17. The applicant complained that his disenfranchisement on account of his being placed under guardianship had been in violation of his rights under Article 3 of Protocol No. 1 to the Convention, which reads as follows: Article 3 of Protocol No. 1 “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.” AdmissibilityThe parties’ submissions The parties’ submissions The parties’ submissions 18. The Government raised three preliminary objections, whereas the applicant maintained that the case should be examined on the merits. 19. The Government firstly raised doubts about the validity of the applicant’s representation before the Court, arguing that the signature that appeared on the contract for legal services (submitted together with the applicant’s claim for just satisfaction) did not appear to be, in their view, identical to the one affixed to his identity card and to a copy of one of the documents annexed to the observations. The Government also considered this contract to be invalid owing to the absence of the signature of the applicant’s guardian, as required by the domestic law. 20. Furthermore, the Government submitted that the application should be rejected for non-exhaustion of domestic remedies, arguing that the applicant had had the opportunity to seek the judicial termination of his guardianship, but had not – through his own fault and the fault of his legal representative – adequately availed himself of this procedure, which led to the termination of the proceedings (paragraphs 7-9 above). 21. Lastly, the Government pleaded that the application constituted an abuse of the right of individual application within the meaning of Article 35 § 3 (a) of the Convention, as the applicant had failed to inform the Court of: (1) his attempts to restore his legal capacity through judicial proceedings before the Bulgarian courts, and (2) the existence of proceedings for the appointment of a new guardian for the applicant (paragraphs 7 ‑ 9 and 12 above). 22. The applicant’s representative responded that the applicant had signed the contract in question (together with other documents) in the offices of the Bulgarian Helsinki Committee in person; he therefore argued that he had been validly authorised to represent the applicant. 23. The applicant also argued that the proceedings for the restoration of his legal capacity were irrelevant to the subject matter of his complaint. The purpose of the present application was solely to challenge the legal basis of his being deprived, as a person placed under guardianship, of his right to vote. He also contested the argument that he had abused of his right to lodge an application with the Court, as the information which the Government had asserted had been withheld from the Court (paragraph 21 above) did not in fact relate to the core matter of the present case. The Court’s assessment (a) Regarding the validity of the applicant’s representation 24. The Court observes that the applicant signed the “power of attorney” section within the application form and thus authorised Mr K. Kanev to act as his representative before the Court. The applicant did not at a later stage lodge any declaration that he had withdrawn this power of attorney. The Court is therefore satisfied that the application was validly submitted on behalf of the applicant and that the latter wishes Mr Kanev to pursue his complaints. The Court also notes that for the applicant to lodge an application with the Court (whether or not he is represented), the applicant’s guardian’s consent is not required, even if that is the case under the domestic legal framework (see Stanev v. Bulgaria [GC], no. 36760/06, § 43, ECHR 2012, where it appeared that the applicable law required that a person under partial guardianship may instruct a lawyer provided that the form of authority was signed by the guardian, but for the procedure before the Court such an authority was not required, see also Zehentner v. Austria, no. 20082/02, § 39, 16 July 2009). Therefore, the Court dismisses the first preliminary objection by the Government. (b) Regarding the exhaustion of domestic remedies 25. The general principles on the rule of exhaustion of domestic remedies have been summarised in Vučković and Others v. Serbia ((preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 69-77, 25 March 2014). That rule obliges those seeking to bring a case against the State before an international judicial body to use first the remedies provided by the national legal system, thus dispensing States from answering before an international body for their acts before they have had an opportunity to put matters right through their own legal systems. In order to comply with the rule, normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged (ibid., §§ 70 and 71, with further references). 26. 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, 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. 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 special circumstances existed which absolved him or her from this requirement (ibid., § 77; see also Kalashnikov v. Russia (dec.), no. 47095/99, ECHR 2001 ‑ XI (extracts), with further references). 27. In the instant case, the Court notes the Government’s observation that had the applicant himself conducted the proceedings for the judicial termination of his guardianship he could have secured the restoration of his right to vote (paragraph 20 above). However, the Court observes that the courts that examined the applicant’s civil action for the restoration of his civil capacity – namely the Ruse Regional Court and the Veliko Tarnovo Court of Appeal – terminated those proceedings, having deemed that the applicant should have been acting as the respondent (and not as a claimant) in those civil proceedings; in so doing, those courts denied him direct access to a court in respect of that matter (paragraphs 7-9 above). The Court reiterates, in that respect, that it has already ruled that such a situation was in breach of the rights protected under Article 6, and has even indicated to the Bulgarian authorities that they should provide for the necessary general measures to ensure the effective possibility of such access (see, Stanev, cited above, §§ 233-248 and § 258). In the present case, the first attempt, by the applicant, to secure the restoration of his legal capacity took place in 2015 and 2016 (paragraphs 7-9 above), while the legislative amendment allowing for direct access to a court was enacted after that time (in October 2017, see paragraph 15 above). It therefore appears that, although the Supreme Court of Cassation seems to have accepted the applicant’s argument that he had a right to direct access to court and enjoined the lower courts to continue the proceedings (paragraph 8 above), the Ruse Regional Court and the Veliko Tarnovo Court of Appeal nevertheless applied the legislation as it stood prior to the Stanev judgment (cited above). It follows that, by refusing to accept the applicant as a claimant in the proceedings for the restoration of his legal capacity, the domestic courts failed to apply the conclusions of the Stanev judgment. In other words, given the fact that the applicant attempted to request the restoration of his legal capacity (even though the applicable legislation still did not offer him direct access to a court), he gave the domestic authorities the opportunity to examine on the merits his legal status, but they refused to do so. Given those circumstances, the Court cannot accept the Government’s argument that the applicant was not diligent in his use of the remedy in question. 28. The Court also considers it relevant to observe that the essence of the applicant’s complaint is not that he was divested of his legal capacity, but that as a person in such a situation, he was barred from participating in any form of election in the country. An opportunity to seek the termination of his guardianship would constitute a solution that would directly address the issue of the applicant’s disenfranchisement only in the event that all criteria for the restoration of his legal capacity were present – even if those relevant for the question of the applicant’s right to vote would appear to have been fulfilled. That is so because the right to vote in elections is not specifically examined in proceedings to restore a person’s legal capacity; rather, it is an automatic consequence of the successful outcome of such proceedings. Accordingly, an unsuccessful attempt at lifting a person’s guardianship will lead to continued disenfranchisement, despite the fact that the issue of voting will not even be addressed by the respective court in such proceedings. The Court notes that the Government have not submitted examples of domestic case-law indicating that even where the domestic courts refused to lift a person’s legal incapacity, they nonetheless discussed separately the question of the right to vote and made a decision, where appropriate, whether any restrictions on that person’s right to vote should continue to be imposed. It appears that such a possibility would in principle be excluded by the courts on the basis of the relevant constitutional and legal domestic provisions (paragraphs 13 ‑ 14 above). 29. In view of the foregoing, the Court finds that, in the circumstances of the present case, the proceedings for the termination of guardianship were not an effective remedy. It follows that the application cannot be rejected for non ‑ exhaustion of domestic remedies. (c) Regarding the abuse of the right of individual petition 30. The Court reiterates that, according to its case-law, an application is an abuse of the right of application if it is knowingly based on untrue facts with a view to deceiving the Court (see, among other authorities, X and Others v. Bulgaria [GC], no. 22457/16, § 145, 2 February 2021). Furthermore, 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 Gross v. Switzerland [GC], no. 67810/10, § 28, ECHR 2014). The same applies if important new developments have occurred during the proceedings before the Court and if, 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 Centro Europa 7 S.r.l. and Di Stefano v. Italy [GC], no. 38433/09, § 97, ECHR 2012). 31. Turning to the circumstances of the present case, the Court has no basis to conclude that the applicant intentionally submitted facts which he knew to be false. In addition, the Court considers that while it is true that, in his initial application, the applicant did not provide the information specified by the Government, that information cannot be deemed to be essential for deciding the outcome of the application. The Court gives particular weight to the fact that the applicant’s complaint questions the automatic constitutional ban on his right to vote after he was declared legally incapable – regardless of whether or not his legal capacity is restored to him in the future. The Court has already noted that the proceedings for restoring the applicant’s legal capacity do not relate sufficiently to the core issue highlighted in the present complaint (paragraphs 27-29 above). 32. Accordingly, the Court rejects 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) in fine of the Convention. (d) Conclusion on the admissibility 33. The Court notes that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. MeritsThe parties’ submissions The parties’ submissions The parties’ submissions (a) The applicant 34. The applicant submitted that his exclusion from the possibility to vote in elections on the basis of a generally applicable legal provision and without an individual judicial assessment had been disproportionate and in violation of his rights under Article 3 of Protocol No. 1 to the Convention. 35. In the applicant’s view, his case was similar to the case of Alajos Kiss v. Hungary (no. 38832/06, 20 May 2010) in that he had lost his right to vote as a result of an indiscriminate ban under Article 42 § 1 of the Constitution (see paragraph 13 above). He submitted that there had been no individual assessment of his ability to evaluate the consequences of his actions and to make conscious choices within the context of the election procedure. His disenfranchisement had been based solely on the fact that he had been placed under partial guardianship. 36. The applicant submitted that the proportion of adults placed under guardianship in Bulgaria and therefore affected by the voting restriction at issue was comparable to that in Hungary – estimated at 0.75% of Hungary’s voting-age population and discussed in the case of Alajos Kiss (cited above, § 39). He considered those figures to be relevant as they took into consideration not only persons under partial guardianship, but also persons placed under full guardianship – all of who were denied the right to vote. The applicant added that the proportion of persons under partial guardianship in Bulgaria amounted to about 0.014 % of the voting-age population. 37. Lastly, the applicant agreed with the third-party intervener (see paragraph 42 below) that the exclusion of disabled people, including those suffering from mental disorders, from the possibility to vote in elections was in contravention of international standards (see paragraph 16 above). He echoed the observations of the intervener that the Contracting States were gradually implementing reforms aimed at recognising the right of suffrage of all disabled people and that the implementation of such reforms everywhere was only a matter of time. (b) The Government 38. The Government submitted that the applicant had voluntarily placed himself in a situation where his right to vote was limited under the relevant national legislation; he had done this by failing to comply with the Ruse Regional Court’s instructions to identify himself as the defendant in the case before it and to provide an address at which he could be summoned (paragraphs 7-9 above). 39. The Government furthermore emphasised the fact that the right to vote was not absolute and could be subject to a number of restrictions. The restriction on the voting rights of persons under guardianship pursued a legitimate aim – namely to ensure that only persons capable of making informed and meaningful decisions could participate in the choice of the country’s legislature. 40. In the Government’s view, the limitation imposed on persons under guardianship was proportionate to the pursued aim and within the State’s margin of appreciation, as it guaranteed that the electoral process was conducted in a manner that best reflected the voters’ will. Although the limitation in question was stipulated by a constitutional provision, its application was not automatic, as each person’s individual situation was assessed by the national courts within the course of the proceedings to place that person under guardianship. In addition, the applicant’s right to vote would be statutorily restored in case his placement under guardianship was lifted upon judicial reviews of his condition, in view of his improved mental status. 41. Lastly, the Government explained that persons under partial guardianship in the Republic of Bulgaria accounted for 0.014% of all nationals who were permanently resident on the territory of the country and who would otherwise be able to vote, suggesting that the restriction in issue was linked to a limited group of persons in a very particular situation. (c) The third-party intervener 42. Validity Foundation – Mental Disability Advocacy Center, an international human rights non-governmental organisation based in Hungary, submitted, inter alia, that the right to vote was universal and that there was a clear international consensus that all people with disabilities should be afforded the same right to political participation as everyone else. This consensus was evident not only from international instruments adopted by authoritative bodies – including the Council of Europe Commissioner for Human Rights, the United Nations’ Special Rapporteur on Disability, and the United Nations’ Committee on the Rights of Persons with Disabilities – but also from recent reform initiatives implemented in the Contracting States. The intervener concluded that stripping people with disabilities of their right to express their political views damaged the integrity of the electoral system and undermined the legitimacy of public institutions. The Court’s assessment (a) General principles 43. The Court has established that Article 3 of Protocol No. 1 guarantees individual rights, including the right to vote and to stand for election (see, inter alia, Mathieu-Mohin and Clerfayt v. Belgium, 2 March 1987, § 51, Series A no. 113, and Selahattin Demirtaş v. Turkey (no. 2) [GC], no. 14305/17, § 385, 22 December 2020). 44. However, the rights guaranteed under Article 3 of Protocol No. 1 are not absolute. There is room for implied limitations, and the Contracting States have a margin of appreciation in this sphere, which generally is a wide one (see the above-cited cases of Mathieu-Mohin and Clerfayt, § 52, and Selahattin Demirtaş, § 387). At the same time, the Court reiterates that if a restriction on the right to vote applies to a particularly vulnerable group in society that has suffered considerable discrimination, such as the mentally disabled, then the margin of appreciation of the State in question is substantially narrower. The reason for this approach, which questions certain classifications per se, is that such groups have been historically subject to prejudice with lasting consequences, resulting in their social exclusion. Such prejudice may entail legislative stereotyping that prohibits the individualised evaluation of their capacities and needs (see Alajos Kiss, cited above, § 42). The Court emphasises, in that respect, that the quality of the parliamentary and judicial review of the necessity of a general measure, such as the disputed disenfranchisement imposed as a consequence of declaring a person legally incapable, is of particular importance, including to the operation of the relevant margin of appreciation (see Strøbye and Rosenlind v. Denmark, nos. 25802/18 and 27338/18, § 92, 2 February 2021). 45. Another factor that has had an impact on the scope of States’ margin of appreciation is the Court’s fundamentally subsidiary role in the Convention protection system. The Contracting Parties, in accordance with the principle of subsidiarity, have the primary responsibility to secure the rights and freedoms defined in the Convention and the Protocols thereto, and in doing so they enjoy a margin of appreciation, subject to the supervisory jurisdiction of the Court. Through their democratic legitimation, the national authorities are, as the Court has held on many occasions, in principle better placed than an international court to evaluate local needs and conditions (see, inter alia, Lekić v. Slovenia [GC], no. 36480/07, § 108, 11 December 2018; and Strøbye and Rosenlind, cited above, § 93). 46. It is for the Court to finally determine whether the requirements of Article 3 of Protocol No. 1 have been complied with. It has to satisfy itself that the limitations imposed on the exercise of the rights under Article 3 of Protocol No. 1 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 (see the above-cited cases of Mathieu-Mohin and Clerfayt, § 52, and Selahattin Demirtaş, § 387). 47. In addition, any conditions imposed must not thwart the “free expression of the people in their choice of legislature” (see Selahattin Demirtaş, cited above, § 388). In other words, they must reflect, or not run counter to, the concern to maintain the integrity and effectiveness of an electoral procedure aimed at identifying the will of the people through universal suffrage. Any departure from the principle of universal suffrage risks undermining the democratic validity of the legislature thus elected and the laws that it promulgates. Exclusion of any groups or categories of the general population must accordingly be reconcilable with the underlying purposes of Article 3 of Protocol No. 1 (see, among other authorities, Hirst v. the United Kingdom (no. 2) [GC], no. 74025/01, § 62, ECHR 2005 ‑ IX, and Scoppola v. Italy (no. 3) [GC], no. 126/05, § 84, 22 May 2012). More specifically, election results should not be obtained through votes cast in a manner that runs counter to the fairness of elections or the free expression of the will of voters (see Caamaño Valle v. Spain, no. 43564/17, § 57, 11 May 2021). 48. The Court reiterates that the presumption in a democratic State must be in favour of the inclusion of all, and that universal suffrage is the basic principle (see Hirst (no. 2 ), cited above, § 59; Sitaropoulos and Giakoumopoulos v. Greece [GC], no. 42202/07, § 67, ECHR 2012; and Scoppola (no. 3), cited above, § 82). This does not mean, however, that Article 3 of Protocol No. 1 guarantees to persons with a mental disability an absolute right to exercise their right to vote. Under this provision, such persons are not immune to limitations of their right to vote, provided that the limitations comply with the conditions set out in paragraphs 46-47 above. For the purpose of the interpretation of Article 3 of Protocol No. 1, the Court has recently noted the fact that there is at present no consensus among the States Parties to Protocol No. 1 in the sense of an unconditional right of persons with a mental disability to exercise their right to vote. On the contrary, a majority of these States seems to allow for restrictions based on the mental capacity of the individual concerned (see Caamaño Valle, cited above, § 59). 49. The margin of appreciation left to the States is not unlimited. The Court has already stated that an absolute bar on voting by any person under partial guardianship, irrespective of his or her actual faculties, does not fall within any acceptable margin of appreciation (see Alajos Kiss, cited above, § 42). Likewise, the indiscriminate removal of voting rights, without an individualised judicial evaluation and solely on the basis of a mental disability necessitating partial guardianship, cannot be considered compatible with the legitimate grounds for restricting the right to vote (ibid., § 44). 50. By contrast, the Court has accepted as legitimate the aim of “ensuring that only citizens capable of assessing the consequences of their decisions and of making conscious and judicious decisions should participate in public affairs” (ibid., § 38). (b) Application of the general principles to the present case 51. In the present case, the applicant was placed under partial guardianship owing to his suffering from psychiatric disorders. As a consequence, he was disenfranchised and prevented from voting in parliamentary elections. His right to vote was thus restricted by law, which was not disputed by the parties. The Court will proceed to determine whether the disenfranchisement of the applicant pursued a legitimate aim in a proportionate manner, having regard to the principles identified above. (i) Legitimate aim 52. The Court points out that Article 3 of Protocol No. 1 does not, like other provisions of the Convention, specify or limit the aims that a restriction must pursue and that a wide range of purposes may therefore be compatible with that provision. The Government submitted that the measure complained of had pursued the legitimate aim of ensuring that only persons capable of making informed and meaningful decisions could participate in the choice of legislature in the country (paragraph 39 above). The applicant did not comment on that point. The Court is satisfied that the impugned measure pursued a legitimate aim (see Alajos Kiss, cited above, § 38). (ii) Proportionality 53. The Court notes that the restriction in question does not distinguish between those under total guardianship and those under partial guardianship; Article 42 § 1 of the Constitution concerns citizens “placed under guardianship” in general (see paragraph 13 above). The restriction is removed only once guardianship is lifted (see the Government’s submission in paragraph 40 above). It also observes that the parties’ submissions contain statistics reflecting the proportion of Bulgaria’s voting-age population that has been disenfranchised on account of being under guardianship as a whole (that is to say under either partial guardianship or total guardianship) indicating that the proportion of persons who have been only partially deprived of legal capacity in Bulgaria amounts to 0.014% of the voting-age population (see paragraphs 36 and 41 above). However, the Court does not consider it necessary to take a position on the relevance of this data in view of the fact that, in any event, the impugned restriction appears to be disproportionate to the legitimate aim pursued by the State in this case, in the light of the following observations. 54. The Government argued, referring to the margin of appreciation that they enjoyed, that it must be permissible for the legislature to establish rules ensuring that the electoral process was conducted in such a manner as to best reflect the voters’ will (see paragraph 40 above). 55. The Court has already accepted that this is an area in which, generally, a wide margin of appreciation should be granted to the national legislature in determining whether restrictions on the right to vote can be justified in modern times and, if so, how a fair balance is to be struck. In particular, it should be for the legislature to decide as to what procedure should be tailored to assess the fitness to vote of mentally disabled persons (see Alajos Kiss, cited above, § 41). The Court observes that there is no evidence that the Bulgarian legislature has ever sought to weigh the competing interests or to assess the proportionality of the restriction as it stands (see, mutatis mutandis and in relation to the Hungarian legislature, Alajos Kiss, cited above, § 41) and thus open the way for the courts to conduct a particular analysis of the capacity of the applicant to exercise the right to vote, independently of a decision to place a person under a guardianship. It has been noted above that the Government has failed to prove that domestic judicial practice allows for the possibility of lifting the restriction on a person’s right to vote in cases where that person remains deprived of his or her legal capacity. It moreover appears that such possibility would not be in line with the domestic legal framework (see paragraph 27 above). 56. The applicant in the present case lost his right to vote as the result of the imposition of an automatic, blanket restriction on the franchise of those under partial guardianship (with no option for an individualised judicial evaluation of his fitness to vote); this placed him in a situation similar to that of the applicant in the case of Alajos Kiss (cited above, and contrast, Strøbye and Rosenlind, §§ 113 and 120, and Caamaño Valle, § 71, both cited above, where the Court noted that there had been no blanket restriction of the right of suffrage and individualised judicial review had taken place). The applicant may therefore claim to be a victim of a measure incompatible with the relevant established principles (see, in particular, paragraph 49 above). The Court cannot speculate as to whether the applicant would still have been deprived of the right to vote, even if a more limited restriction on the rights of the mentally disabled had – in compliance with the requirements of Article 3 of Protocol No. 1 – been imposed (see Alajos Kiss, cited above, § 43). 57. The Court reiterates that the treatment as a single class of all those with intellectual or psychiatric disabilities is a questionable classification, and the curtailment of their rights must be subject to strict scrutiny (ibid., § 44). The Court therefore concludes that the indiscriminate removal of the voting rights of the applicant – without an individualised judicial review and solely on the basis of the fact that his mental disability necessitated that he be placed under partial guardianship – cannot be considered to be proportionate to the legitimate aim for restricting the right to vote, as advanced by the Government (see paragraph 52 above). 58. There has accordingly been a violation of Article 3 of Protocol No. 1 to the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 59. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” Damage 60. The applicant claimed 3,000 euros (EUR) in respect of non-pecuniary damage. 61. The Government contested this claim as excessive and unsubstantiated. 62. The Court awards the applicant’s claim in respect of non-pecuniary damage in full, plus any tax that may be chargeable. Costs and expenses 63. The applicant also claimed EUR 1,926 for the costs and expenses incurred in the proceedings before the Court. This sum corresponds to twenty ‑ four hours of legal work, according to the time-sheet submitted, billable by his representative and charged at an hourly rate of EUR 80, plus EUR 6 for postage. He also requested that any award under this head be made directly payable to the Bulgarian Helsinki Committee. [1] 64. The Government contested this claim as excessive. 65. 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 the sum claimed for costs and expenses reasonable and awards it in full, plus any tax that may be chargeable to the applicant. As requested by the applicant, this sum is to be paid directly into the bank account of the Bulgarian Helsinki Committee. [2] Default interest 66. 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 of Protocol No.° 1 to the Convention, finding that the indiscriminate removal of the applicant’s voting rights – without individual judicial review and solely because he had been placed under partial guardianship – had not been proportionate to the legitimate aim for restricting the right to vote. It noted, in particular, that the restriction did not distinguish between those under total guardianship and those under partial guardianship. Furthermore, there was nothing to show that the Bulgarian legislature had ever sought to weigh the competing interests or to assess the proportionality of the Constitutional restriction as it stood and thus open the way for the courts to analyse the capacity of a person to exercise the right to vote, independently of a decision to place that person under guardianship. In the present case, the applicant had lost his right to vote as the result of an automatic, blanket restriction on the franchise of those under partial guardianship with no individual judicial evaluation of his fitness to vote. The Court reiterated that such blanket treatment of all those with intellectual or psychiatric disabilities was questionable, and the curtailment of their rights must be subject to strict scrutiny. |
1,076 | Prohibition of discrimination (Article 14 of the Convention) | II. RELEVANT DOMESTIC LAW 12. The relevant provisions of the Local Government Finance Act 1988 are as follows : “ Section 41 - Local Rating Lists (1) In accordance with this Part the valuation officer for a charging authority shall compile, and then maintain, lists for the authority (to be called its local non-domestic rating lists) ... Section 43 – Occupied Hereditaments Liability (6) This subsection applies where on the day concerned the ratepayer is a charity or trustees for a charity and the hereditament is wholly or mainly used for charitable purposes (whether of that charity or of that and other charities). Section 51 – Exemption Schedule 5 below shall have effect to determine the extent (if any) to which a hereditament is for the purposes of this Part exempt from local non-domestic rating. Schedule 5, paragraph 11 – Places of religious worship etc. (1) A hereditament is exempt to the extent that it consists of any of the following: (a) a place of public religious worship which belongs to the Church of England or the Church in Wales ... or is for the time being certified as required by law as a place of religious worship; (b) a church hall, chapel hall or similar building used in connection with a place falling within paragraph (a) above for the purposes of the organisation responsible for the conduct of public religious worship in that place. ” 13. In Church of Jesus Christ of Latter-day Saints v. Henning [1964] AC 420, the House of Lords examined a similar complaint about the refusal to grant the exemption for places of “public religious worship” to the Mormon Temple at Godstone, Surrey. Lord Pearce, with whom the majority agreed, explained that from 1601 churches of the Church of England were not subject to rates and that this exemption was extended by the Poor Rate Exemption Act 1833 to “any churches ... meetinghouses, or premises, or any part thereof that shall be exclusively appropriated to public religious worship”. He continued: “By the Act of 1833 the legislature was intending to extend the privileges of exemption enjoyed by the Anglican churches to similar places of worship belonging to other denominations. Since the Church of England worshipped with open doors and its worship was in that sense public, it is unlikely that the legislature intended by the word ‘ public ’ some more subjective meaning which would embrace in the phrase ‘ public religious worship ’ any congregational worship observed behind doors closed to the public. I find it impossible, therefore, to hold that the words ‘ places of public religious worship ’ includes places which, though from the worshippers ’ point of view they were public as opposed to domestic, yet in the more ordinary sense were not public since the public was excluded. ... Furthermore, it is less likely on general grounds that Parliament intended to give exemption to religious services that exclude the public, since exemptions from rating, though not necessarily consistent, show a general pattern of intention to benefit those activities which are for the good of the general public. All religious services that open their doors to the public may, in an age of religious tolerance, claim to perform some spiritual service to the general public. ... ” THE LAW I. ALLEGED VIOLATION OF ARTICLE 14 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 9 14. The applicant complained that the refusal to its Preston temple of the exemption from business rates accorded to places of public religious worship amounted to discrimination on religious grounds, in breach of Article 14 of the Convention taken in conjunction with Article 9. Article 9 of the Convention provides: “1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance. 2. Freedom to manifest one ’ s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.” 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.” 1. The parties ’ arguments a. The Government 15. The Government submitted that, since Article 14 did not confer a free-standing right to non-discrimination, its scope should be kept within boundaries of association closely associated with and directly bearing upon the operation of the other Convention rights. The applicant had not identified any concrete link between the scope of the tax exemption and Article 9; the facts of the case were far removed from the core values and concerns which Article 9 sought to protect. It followed that Article 14 did not apply and that the complaint should be declared inadmissible. 16. Moreover, the Government did not accept that the applicant had established that it was in any significantly different position in relation to the 1988 Act than any other religious organisation. The rule was of general application and concerned only the use made of the building; it did not discriminate on the basis of religious belief. Any of the applicant ’ s places of worship, such as its chapels and stake centres, that were open to the public, had the benefit of the exemption. Other religious organisations also operated a mixture of private and public places of worship. For example, whilst Church of England churches were usually open to the public, its religious buildings run by closed orders or schools or college chapels might not be. Where such buildings were not open to the public, they were not exempt from rates. There had been no direct discrimination against the applicant Church; the complaint should be characterised as one of indirect discrimination. This was a concept that the Court had recognised as being covered by Article 14 only relatively recently, and it should be cautious not to extend the breadth of Article 14 too far in developing this new principle. It was for the applicant to produce prima facie evidence that the effect of a measure or practice was discriminatory, whereupon the burden of proof would shift to the Government to justify the measure. The ill-defined difference of treatment complained of in the present case did not, in the Government ’ s submission, cross this threshold. 17. If, contrary to the foregoing, the Court should conclude that there was prima facie discrimination in this case, the Government contended that it was objectively justified. The essential purpose of the legislation was to confine the benefit of the exemption to buildings that offered a public benefit. This decision by Parliament reflected the “general interest of the community” both in raising revenue for public purposes and, more specifically, the “considerations of fairness and public benefit” identified by Lord Pearce in Henning (see paragraph 13 above). Lord Scott had identified a second aim pursued by the legislation, observing that in the context of a culturally diverse society such as the United Kingdom, secrecy in religious practice was potentially divisive, and sometimes “dangerously so” (see paragraph 11 above). Parliament had struck the same balance in pursuit of the same legitimate objectives in successive rating statutes since Henning, including the 1988 Act. The exemption reflected a policy judgment that the exemption from tax should be based upon a public good, not a private benefit. The revenue raised was itself applied to the public benefit by the local authority. The Government was plainly entitled to draw a distinction between the direct benefit to the public drawn from worshipping within a religious building and the kind of indirect and amorphous benefits alluded to by the applicant. 18. The national authorities were generally afforded a wide margin of appreciation, both in connection with general measures of economic or social strategy and when it came to striking a balance between public interests and religious rights. The applicant had not identified any practical impact on the ability of its members to manifest their religious belief arising out of the requirement to pay rates reduced by 80% on the temple premises. The figures provided by the applicant related to the rates paid in relation to the entire temple site and the amount attributable to the temple building and curtilage was less. These sums had to be seen in the context of the applicant ’ s overall resources, which were considerable. If the Court were to find Article 14 applicable, the proportionality test was clearly satisfied. b. The applicant 19. The applicant reasoned that the Preston temple and its curtilage, including the vestry or dressing room, utility rooms, office space used for temple administration and refectory used for dining by temple worshippers, ought to be exempt from business rates. However, it emphasised that its dispute with the Government concerned the principle of the exemption in relation to the temple, rather than its precise extent. The tax provisions at issue resulted in differential treatment. They imposed a tax burden on the applicant ’ s temple which was not applied to other religious structures. More importantly, they excluded the applicant ’ s most sacred space and rituals from eligibility for tax exemption, while granting exempt status to the full range of worship for other denominations. Implicit in this differentiation were non-neutral State assumptions, stereotypes and stigmatisation that operated prejudicially against the applicant and those if its members who chose to engage in temple worship. 20. Discrimination on the basis of religion was one of the specifically enumerated grounds identified by Article 14 and could be justified only by very weighty reasons. The Government sought to minimise the discrimination involved in the case by categorising it with other tax provisions and with more general social and economic legislation, in respect of which they contended that the Court should apply a lax standard of supervision. However, this was a reversal of the proper analysis. The point was not that measures affecting religion were subject to a lower degree of scrutiny because tax or other social or economic legislation was involved. Rather, it was that tax and social and economic legislation was generally about non-religious issues, and thus not subject to the stricter scrutiny that differentiations in the religious domain required. The decision whether to exempt the Preston temple from taxation could not be characterised as a mere “general measure of economic or social strategy”. While it was obviously a tax measure, it was one that both directly, not incidentally, applied to religious organisations and imposed a disproportionate burden on a specific religious community because of its distinctive beliefs. 21. The applicant contended that its temple worship should be treated with the same respect and accorded the same tax exempt treatment as the worship facilities of the Church of England and other denominations. Temple worship, by its very nature as understood by its believers, required that only those who voluntarily lived by the kinds of commitments made in the temple should be allowed to participate. This was not a case of worship being made private for the purposes of being exclusive or to provide private benefit; it was because the very nature of the worship as understood by its believers required privacy to promote the sacred character of the worship. The relevant analogy would be to insist that the tax exemption be denied to space devoted to confessionals or to the area behind the iconostasis in Orthodox churches. Just as an invitation to the general public to enter these spaces would disrupt sacred practices, so the nature of temple worship would be destroyed if there were a general requirement that the public be able to sit in. It was inappropriate for State officials to engage in drawing lines that discriminated between religions on the basis of mistaken understandings of the nature and impact of religious practices or merely because such practices are different from those of more familiar religions. 22. Once differential treatment had been established, it was for the respondent State to show that the difference in treatment could be justified. The Government had asserted that the legitimate aim of the provision was to “confine the benefit of the exemption from the general obligation to pay rates to buildings that offer a public benefit”. While this was in principle a legitimate aim, the Government had failed to show that public benefit did not similarly flow from the applicant ’ s temple worship. Far from being rooted in objective considerations, the difference in treatment reflected non-objective assumptions about how religion benefits the public. The average attendance at congregational services in the temple at Preston was approximately 950 a week, which would not compare unfavourably with churches of the Church of England and other places of religious worship. The public benefit flowing directly from temple worship included, among other things, extensive participation in charitable and humanitarian endeavours, commitment to good citizenship and careful devotion to family responsibilities. Sacred pledges made in the course of collective worship in the temple, which were then lived out in the world, redounded to the benefit of society at large. The money taken in tax ceased to be available for the religious witness and charitable mission of the applicant and cut into its ability to construct additional worship facilities. While it was true as a general matter that systems of taxation must use broad categories to be workable, the situation was different where, as here, an ostensibly neutral provision imposed a disproportionate and discriminatory burden when applied to the applicant ’ s religion. A discriminatory tax provision could not be justified merely because it was broad. 2. The Court ’ s assessment a. Admissibility 23. The Court recalls that a religious association may exercise on behalf of its members the rights guaranteed by Article 9 of the Convention, taken alone and in conjunction with Article 14 (see, mutatis mutandis, Cha ’ are Shalom Ve Tsedek v. France [GC], no. 27417/95, § 72, ECHR 2000 ‑ VII ). In the present case, for the purposes of Article 34 of the Convention, the applicant Church may therefore be considered to have standing to bring the application. 24. For the reasons set out below, the question whether Article 14 applies on the facts of the case is closely linked to the merits of the complaint. The Court therefore decides to join to issue of the admissibility of the complaint under Article 9 taken in conjunction with Article 14 to the merits. b. Merits i. General principles 25. The Court recalls that Article 14 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. 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, Burden v. the United Kingdom [GC], no. 13378/05, § 58, 29 April 2008). Thus, a measure which in itself is in conformity with the requirements of the Article enshrining the right or freedom in question may however infringe the Article when read in conjunction with Article 14 for the reason that it is of a discriminatory nature (see, for example, the Belgian linguistic case (merits), 23 July 1968, § 9, Series A no. 6, pp. 33-34). The Court has also explained that Article 14 comes into play whenever “the subject-matter of the disadvantage ... constitutes one of the modalities of the exercise of a right guaranteed” (see the National Union of Belgian Police v. Belgium judgment of 27 October 1975, Series A no. 19, p. 20, § 45), or the measure complained of is “linked to the exercise of a right guaranteed” (see the Schmidt and Dahlström v. Sweden judgment of 6 February 1976, Series A no. 21, p. 17, § 39). 26. The Court has established in its case-law that only differences in treatment based on an identifiable characteristic, or “status”, are capable of amounting to discrimination within the meaning of Article 14 ( see Carson and Others v. the United Kingdom [GC], no. 42184/05, § 61, ECHR 2010). “Religion” is specifically mentioned in the text of Article 14 as a prohibited ground of discrimination. 27. Generally, in order for an issue to arise under Article 14 there must be a difference in the treatment of persons in analogous, or relevantly similar, situations ( Burden v. the United Kingdom [GC], no. 13378/05, § 60, ECHR 2008 ‑ ). However, this is not the only facet of the prohibition of discrimination in Article 14. The right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States, without an objective and reasonable justification, fail to treat differently persons whose situations are significantly different ( Thlimmenos v. Greece [GC], no. 34369/97, § 44, ECHR 2000 ‑ IV; see also D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 175, ECHR 2007; Runkee and White v. the United Kingdom, nos. 42949/98 and 53134/99, § 35, 10 May 2007; Eweida and Others, cited above, § 87 ). 28. Such a difference of treatment between persons in relevantly similar positions - or a failure to treat differently persons in relevantly different situations - is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. The Contracting State enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment ( Burden, cited above, § 60; Eweida, cited above, § 88 ). The scope of this margin will vary according to the circumstances, the subject-matter and the background ( Carson and Others, cited above, § 61). 29. Finally, in this connection, the Court recalls 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 ( Hasan and Chaush v. Bulgaria [GC], no. 30985/96, § 78, ECHR 2000 ‑ XI ). The State therefore 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 and Others v. Moldova, no. 45701/99, § 116, ECHR 2001 ‑ XII; Religionsgemeinschaft der Zeugen Jehovas and Others v. Austria, no. 40825/98, § 97, 31 July 2008; Savez crkava “Riječ života” and Others v. Croatia, no. 7798/08, § 88, 9 December 2010 ). The Court considers that the obligation under Article 9 incumbent on the State ’ s authorities to remain neutral in the exercise of their powers in the religious domain, and the requirement under Article 14 not to discriminate on grounds of religion, requires that if a State sets up a system for granting tax exemptions on religious groups, all religious groups which so wish must have a fair opportunity to apply for this status and the criteria established must be applied in a non-discriminatory manner (see, mutatis mutandis, Religionsgemeinschaft der Zeugen Jehovas and Others, cited above § 92). ii. Application of these principles to the facts of the case 30. The applicant ’ s complaint concerns the rating status of its temple in Preston. This building is considered by the members of the applicant Church to constitute its most sacred centre. It is used as a place of congregational religious worship by those who have established their devotion and been accorded a “recommend” (see paragraphs 6-7 above). In the domestic proceedings, the opinion of the majority of the House of Lords was that the subject-matter of complaint did not come within the ambit of Article 9 of the Convention, with the consequence that Article 14 did not apply, since the refusal of the tax exemption did not prevent Mormons from manifesting their religion and since the tax exemption rules were applied neutrally to all religious groups and not directed specifically at the applicant Church (see paragraph 11 above). The Court can well understand such an assessment by the national courts of the facts of the present case, although it may be that in certain circumstances issues concerning the operation of religious buildings, including expenses incurred as a result of the taxation status of such buildings, are capable of having an impact on the exercise of the right of members of religious groups to manifest religious belief (see, mutatis mutandis, Association Les Témoins de Jéhovah v. France, no. 8916/05, §§ 48-54, 30 June 2011 ). The Court does not, however, need to decide whether, in the particular circumstances, the applicant ’ s complaint about the application to it of the tax exemption legislation falls within the ambit of Article 9, so that Article 14 applies, since for the reasons given below it has come to the conclusion that the claim of discrimination is unfounded on its merits. 31. To establish differential treatment, the applicant Church relied on the argument that, because of the nature of its doctrine, which holds that access to the temple should be restricted to its most devout members who hold a current “recommend”, the law which granted a full exemption from rates only to buildings designated for “public religious worship” provided a lower fiscal advantage to the Mormon Church than to such other faiths as to not restrict access to any of their places of worship, even the most sacred. The Court agrees with the Government that the applicant ’ s complaint might, at most, be characterised as one of indirect discrimination. However, on the facts of the case, it is open to doubt whether the refusal to accord an exemption in respect of the applicant Church ’ s temple in Preston gave rise to any difference of treatment of comparable groups, given that the tax law in question applied in the same way to, and produced the same result in relation to, all religious organisations, including the Church of England in respect of its private chapels. Neither is the Court convinced that the applicant Church was in a significantly different position from other churches because of its doctrine concerning worship in its temples, so as to call for differential treatment involving exemption from the contested tax, since other faiths likewise do not allow access of the public to certain of their places of worship for doctrinal reasons. 32. Moreover, in the Court ’ s view, any prejudice caused to the applicant Church by the operation of the tax law was reasonably and objectively justified. In this respect, the Court observes that the rates exemption was first conferred on places of public religious worship by the Poor Rate Exemption Act 1833. The purpose of the exemption, as explained by Lord Pearce in the Henning case, was, from the moment it was introduced in 1833, to benefit religious buildings which provided a service to the general public and where the church in question “worshipped with open doors” (see paragraph 13 above). The House of Lords held that there was a public benefit in granting the general public access to religious services. In this regard Lord Scott of Foscote stated that such openness in religious practice could dispel suspicions and contradict prejudices in a multi-religious society (see paragraph 11 above). 33. According to its settled case-law, the Court leaves to Contracting States a certain margin of appreciation in deciding whether and to what extent any interference is necessary. It is true, as the Government have pointed out, that a wide margin is usually allowed to the State when it comes to general measures of economic or social strategy. This is because, given 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” (see James and Others v. the United Kingdom, 21 February 1986, § 46, Series A no. 98; see also, 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). The policy of using rates exemptions to promote the public benefit in enjoying access to religious services and buildings can be characterised as one of general social strategy, in respect of which the State authorities have a wide margin of discretion. However, given the importance of maintaining true religious pluralism, which is inherent in the concept of a democratic society (see Kokkinakis, cited above, § 31), the Court must be vigilant to ensure that the measure did not have disproportionate consequences in relation to the applicant Church. 34. In this connection, the Court notes that all the applicant ’ s places of worship that are open to the public, such as its chapels and stake centres, had the benefit of the full exemption from rates. Indeed, the stake centre situated on the same site in Preston as the temple was accepted as a “place of public religious worship”, benefiting from the statutory exemption (see paragraph 8 above). The temple itself, which is not open to the public, does not attract the full exemption, but does benefit from an 80% reduction in rates in view of its use for charitable purposes (see paragraph 8 above). This 80% reduction can be seen as reflecting the elements of public benefit which the applicant identifies as flowing from the nature of temple worship. Neither in its objects nor in its effects does the legislation prompting the contested measure go to the legitimacy of Mormon beliefs. The legislation is neutral, in that it is the same for all religious groups as regards the manifestation of religious beliefs in private; and indeed produces exactly the same negative consequences for the officially established Christian Church in England (the Church of England) as far as private chapels are concerned. Moreover, the remaining liability to rates is relatively low, in monetary terms, and the impact on the applicant of the impugned measure cannot be compared to the detriment suffered by the applicants in cases such as Moscow Branch of the Salvation Army v. Russia, no. 72881/01, ECHR 2006 ‑ XI, Religionsgemeinschaft der Zeugen Jehovas and Others v. Austria, no. 40825/98, 31 July 2008, Savez crkava “Riječživota” and Others v. Croatia, no. 7798/08, 9 December 2010. 35. In conclusion, insofar as any difference of treatment between religious groups in comparable situations can be said to have been established in relation to tax exemption of places of worship, such difference of treatment had a reasonable and objective justification. In particular, the contested measure pursued a legitimate aim in the public interest and there was a reasonable relationship of proportionality between that aim and the means used to achieve it. The domestic authorities cannot be considered as having exceeded the margin of appreciation available to them in this context, even having due regard to the duties incumbent on the State by virtue of Article 9 of the Convention in relation to its exercise of its regulatory powers in the sphere of religious freedom. It follows that the Court does not find that the applicant Church has suffered discrimination in breach of Article 14 of the Convention, taken in conjunction with Article 9. 36. In conclusion, and subject to the doubts expressed above, the Court declares the complaint under Article 14 taken in conjunction with Article 9 admissible, but finds no violation. II. ALLEGED VIOLATIONS OF ARTICLE 9 OF THE CONVENTION TAKEN ALONE AND ARTICLE 1 OF PROTOCOL NO. 1, TAKEN ALONE AND IN CONJUNCTION WITH ARTICLE 14 37. In addition, the applicant complained that the denial of the full rates exemption gave rise to a violation of its members ’ right to manifest their religious belief, in breach of Article 9 of the Convention taken alone (for the text of the Article, see paragraph 14 above). It further alleged that the levying of the business rate amounted to a deprivation of its possessions, and that this was discriminatory because it applied to the applicant but not to other religious organisations which were able to claim the statutory exemption, in breach of its rights under Article 1 of Protocol No. 1, taken alone and in conjunction with Article 14. Article 1 of Protocol No. 1 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.” 38. It may be doubted whether the measure in question gave rise to any interference with the rights of the applicant Church ’ s members under Article 9. The relatively small impact of the 20% liability to rates on the temple, but not the Church ’ s other places of worship open to the public, distinguishes this case from others where substantial financial detriment has been caused through a State ’ s fiscal policy towards a particular religious group (compare, for example, Association Les Témoins de Jéhovah v. France, cited above). In any event, in the light of the above finding that the policy of exempting from rates buildings used for public religious worship fell within the State ’ s margin of appreciation under Articles 14 and 9 taken together, in the Court ’ s view there is no call to examine separately in detail the complaints under Article 9 taken alone and under Article 1 of Protocol No. 1 to the Convention, taken alone and in conjunction with Article 14. This is because, on the facts of this case, it considers that the margin of appreciation to be afforded to the State in respect of those provisions would be similar to, if not more generous than, that afforded under Article 14 taken in conjunction with Article 9. 39. In conclusion, the Court does not find it necessary to examine separately these complaints, either as regards their admissibility or the merits. II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 40. Finally, the applicant alleged that the fact that the House of Lords considered itself bound by earlier precedent, namely the Henning judgment, deprived it of an effective remedy under 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.” 41. The Court refers to its settled case-law to the effect that Article 13 guarantees the existence of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief. Contracting States are afforded some discretion as to the manner in which they conform to their obligations under this provision. The scope of the obligation under Article 13 varies depending on the nature of the applicant ’ s complaint under the Convention. Nevertheless, the remedy required by Article 13 must be “effective” in practice as well as in law (see, for example, McGlinchey and Others v. the United Kingdom, no. 50390/99, § 62, ECHR 2003 ‑ V ). 42. In the present case, it is clear that an appropriate and effective remedy was available to the applicant Church. Although the applicant chose not to advance its Convention complaints in the High Court and the Court of Appeal, it was granted leave by the House of Lords to advance these new arguments under the Human Rights Act before it. That the outcome was not favourable for the applicant does not mean that the remedy was in principle ineffective. Compliance with Article 13 does not depend on the certainty of a favourable outcome for an applicant ( see, for example, Ramirez Sanchez v. France [GC], no. 59450/00, § 159, ECHR 2006 ‑ IX ). 43. In conclusion, the Court considers that the applicant ’ s complaint under Article 13 of the Convention is manifestly ill-founded and must be rejected as inadmissible under Article 35 §§ 3(a) and 4 of the Convention. | The Court held that there had been no violation of Article 14 (prohibition of discrimination) taken in conjunction with Article 9 (freedom of thought, conscience and religion) of the Convention, finding that, in so far as any difference of treatment between religious groups in comparable situations could be said to have been established, it had a reasonable and objective justification. The Court noted in particular that the policy of using rates exemptions to promote the public benefit in enjoying access to religious services and buildings could be characterised as one of general social strategy, in respect of which the State authorities had a wide margin of discretion. Furthermore, the consequences of refusing the exemption had not been disproportionate in the present case: all the applicant’s places of worship that were open to the public, such as its chapels and stake centres, had the benefit of the full exemption; the temple itself, which was not open to the public, did not attract the full exemption, but did benefit from an 80% reduction in rates in view of its use for charitable purposes; the legislation prompting the contested measure did not go to the legitimacy of Mormon beliefs, but was instead neutral, being the same for all religious groups as regards the manifestation of religious beliefs in private and producing exactly the same negative consequences for the officially established Christian Church in England (the Church of England) as far as private chapels were concerned; lastly, the remaining liability to rates was relatively low in monetary terms. |
561 | Dissolution or prohibition of political parties or associations | II. RELEVANT DOMESTIC LAW 17. The Constitution, as in force at the material time, contained the following provisions: Article 2 “3. The activities of social organisations, government bodies or individual citizens may not be directed at the forcible acquisition or exercise of public power, or at the exclusive possession of such power. Everyone has the right and obligation to resist such activities in such ways as are permitted by law.” Article 63 “1. In the Republic of Hungary every person has the right, on the basis of the right of association, to establish organisations whose goals are not prohibited by law and to join such organisations. 2. The establishment of armed organisations with political objectives shall not be permitted on the basis of the right of association. 3. A majority of two-thirds of the votes of the Members of Parliament present is required to pass the law on the right of assembly and the financial management and operation of political parties.” 18. Act no. II of 1989 on the right to freedom of association provides as follows: Section 2 “(1) By virtue of the right of association private individuals, legal persons and their entities which have no legal personality may, subject to the aims of their activities and the intention of their founders, form and operate civil society organisations. (2) The exercise of the right of association may not violate Article 2 § 3 of the Constitution, nor may it constitute a criminal offence or incitement to a criminal offence, and may not prejudice the rights and liberties of others.” Section 3 “(1) A civil society organisation is a voluntarily established self-governing organisation formed for a purpose stated in its articles of association, which has registered members and organises its members ’ activities in order to further its purpose. (2) Unregistered members may also participate in large-scale public events .” Section 4 “(1) ... A civil society organisation comes into existence by means of registration with the courts .” Section 5 “A community of private individuals formed by virtue of the right of association, whose operation is not regular or which has no registered members or structure specified under this Act, shall not constitute a civil society organisation .” Section 16 “(2) Upon an action brought by the public prosecutor, the court: ... ( d) shall dissolve the civil society organisation if its operation violates section 2(2) hereof; ...” The legal status of associations can be briefly characterised as follows. Associations whose activities do not serve a public interest cannot be supported by individuals by means of income-tax -deductible donations and are not entitled to receive other donations or to apply for public subsidies, as these privileges are reserved for public-benefit organisations under the provisions of Acts nos. CXXVI of 1996 and CLXXV of 2011. However, Act no. LXXXI of 1996 provides that income deriving from the non-profit activities of any association is exempt from corporate tax and that the associations ’ business activities are subject to preferential corporate taxation. In addition, under Act no. CXVII of 1995, advantageous income ‑ tax rules apply to certain services provided by associations and certain remunerations and social welfare benefits received from them. Furthermore, Act no. IV of 1959 ( on the Civil Code) provides that the members of an association are not liable for the association ’ s debts. 19. Act no. LXXVII of 1993 on the rights of national and ethnic minorities, as in force at the material time, provided as follows: Section 4 “(1) The Republic of Hungary prohibits all policies or conducts which: ( a) are aimed at or result in a minority ’ s assimilation into, or exclusion or segregation from, the majority nation; ( b) aim to change the national or ethnic composition of areas populated by minorities ...; ( c) persecute, impair the lives of or hamper the exercise of the rights of a minority or persons belonging to a minority on account of their belonging to a minority; ...” 20. Law-Decree no. 8 of 1976, promulgating the International Covenant on Civil and Political Rights adopted by the General Assembly of the United Nations at its 21st session on 16 December 1966, provides as follows: Article 20 “2. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.” 21. Law-Decree no. 8 of 1969, promulgating the International Convention on the Elimination of All Forms of Racial Discrimination adopted in New York on 21 December 1965, provides as follows: Article 1 “1. In this Convention, the term ‘ racial discrimination ’ shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life. ... ” Article 2 “1. States Parties condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races, and, to this end: ... (d) Each State Party shall prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination by any persons, group or organization; ...” Article 4 “States Parties condemn all propaganda and all organizations which ... attempt to justify or promote racial hatred and discrimination in any form, and undertake to ... ( a) ... declare an offence punishable by law all ... incitement to racial discrimination ... and also the provision of any assistance to racist activities, including the financing thereof; ( b) ... declare illegal and prohibit organizations, and also organized and all other propaganda activities, which promote and incite racial discrimination, and shall recognize participation in such organizations or activities as an offence punishable by law; ...” 22. Decision no. 30/1992 (V.26) AB of the Constitutional Court contains the following passages: “II. 3. The criminal codes of all democratic European countries with continental legal systems, as well as those of England and Wales, Canada and New Zealand. which have the Anglo-Saxon legal system, prohibit incitement on a ‘ racial ’ basis. The demarcation of the boundary between incitement, arousal of hatred and expression of opinion remains hotly contested even internationally. ... IV. COMPARATIVE LAW 29. The German Federal Constitutional Court held, in its Stoppt den Synagogenbau! judgment of 23 June 2004 ( BVerfGE, 111, 147 – Inhaltsbezogenes Versammlungsverbot ), that to avert danger to public order it was possible to restrict freedom of assembly if it was the Art und Weise, that is, the manner or means by which an assembly was conducted, and not the content, which gave rise to concerns. Accordingly, it was permissible to restrict “aggressive and provocative conduct by participants which intimidates citizens and through which demonstrators create a climate of violent demonstration and potential readiness for violence”. With regard to an extreme right-wing march staged on Holocaust Memorial Day, it held in addition that “the manner or means [ by which an assembly is conducted] [may] give rise to provocation which significantly encroaches upon moral sensitivities [ sittliches Empfinden ] ”. Regarding the way in which the assembly was conducted, the Federal Constitutional Court also attached importance to the provocative behaviour of the protestors. It added that the same applied “when a procession, on account of its overall character [ durch sein Gesamtgepräge ] identifies with the rites and symbols of the Nazi tyranny and intimidates other citizens by evoking the horrors of the past totalitarian and inhumane regime”. 30. In the context of the dissolution of an association the German Federal Administrative Court, in judgment BVerwG 6 A 3.08 of 5 August 2009, summarised its case-law on the banning of associations as follows: “ 16. Whether or not the purpose and activity of an association are punishable under criminal law will depend on the intentions and conduct of its members. An association as such cannot be criminally liable. Only natural persons are punishable under criminal law because criminality implies a capacity for criminal responsibility [ Schuldzurechnungsfähigkeit ], which only natural persons possess. As is clear from section 3(5) of the Association Act [ VereinsG ], it is nevertheless legally possible for an association to be criminally liable [ Strafgesetzwidrigkeit einer Vereinigung ] because the association can form, through its members and through its representing organs, a collective will which is detached from the individual members and which develops its own purpose [ Zweckrichtung ] and can act independently. If the criminal law is breached as a result of this own purpose or of the independent actions of an association, all the conditions for applying the prohibition [ Verbotstatbestand ] are fulfilled. A decisive factor in this context is that the members ’ conduct can be attributed to the association. The character of the association must be shaped [ prägen ] by the criminal offences [ Strafgesetzwidrigkeit ] committed by its members. An association can strive concurrently for different aims; besides the legal aim laid down in its rules, it can also pursue criminal aims which it achieves through the conduct of its members. ... 17. The prohibition of an association based on section 3(1), first sentence, first alternative, of the Associations Act read in conjunction with the first alternative of Article 9 § 2 of the Basic Law, is de iure independent of the criminal conviction of a member or an official of the association. It is within the competency of the authority issuing the prohibition order and the administrative court to examine whether there has been a breach of criminal law [ Gesetzeswidrigkeit ]. However, it is not the purpose of the prohibition [ Verbotstatbestand ] to impose an additional sanction on individuals who have already violated criminal provisions. Rather, the purpose [of the provision] is to deal with a particular threat to public safety and public order expressed in the founding or continuing existence of an organisation which is planning or committing criminal acts. Such organisations constitute a particular threat to interests [ Rechtsgüter ] protected by the criminal law. The organisation ’ s inherent momentum and its organised human and material resources facilitate and promote punishable acts. At the same time, the sense of responsibility of each member is often reduced, individual resistance to committing a criminal act is lessened, and the impetus to commit further criminal acts is created ( judgment of 18 October 1988, op. cit., p. 307 and pp. 23-24 respectively; Löwer, in: v. Münch / Kunig, GG, Vol. 1, 5th ed. 2000, note 39 ad Article 9). ” The German Federal Administrative Court has repeatedly upheld dissolution orders in respect of associations which supported (neo-)Nazi ideas. In its Heimattreue Deutsche Jugend judgment of 1 September 2010 ( BVerwG 6 A 4.09), in which members of the association were propagating Nazi racial treatises and ideas, the Federal Administrative Court reiterated its relevant case-law, stating that in order to satisfy the conditions of the ban the association must have intended to realise its anti-constitutional aims in a militant or aggressive way, a condition which did not require the use of force or a specific violation of the law. It was sufficient, for the finding of an unconstitutional aim that justified the ban, for the programme, imagery and style to indicate an essential relationship with Nazism. The fact that an association aligned itself with the Nazi party (prohibited in Germany) or propagated a racial theory which was not in conformity with the constitutional prohibition of discrimination was sufficient to meet the conditions for banning the association. If an association attempted to hide its unconstitutional intentions, the conditions for the ban would become clear simply from the general picture formed by the individual statements and conduct. The fact that these elements might appear to be subordinate to a varying number of innocuous circumstances said nothing in itself about their significance. 31. The Supreme Court of the United States considered the problem of intimidation in Virginia v. Black, 538 US 343 (2003). A Virginia statute makes it a felony “for any person ..., with the intent of intimidating any person or group ..., to burn a cross on the property of another, a highway or other public place,” and specifies that “[a] ny such burning ... shall be prima facie evidence of an intent to intimidate a person or group.” The Supreme Court held that burning a cross in the United States was inextricably intertwined with the history of the Ku Klux Klan. The Klan had often used cross burnings as a tool of intimidation and a threat of impending violence. To this day, regardless of whether the message was a political one or was also meant to intimidate, the burning of a cross was a “symbol of hate.” While cross burning did not inevitably convey a message of intimidation, often the cross burner intended that the recipients of the message should fear for their lives. The First Amendment of the Constitution of the United States permitted a State to ban “true threats ”, which encompassed those statements where the speaker meant to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats protected individuals from the fear of violence and the disruption that fear engendered, as well as from the possibility that the threatened violence would occur. Intimidation in the constitutionally proscribable sense of the word was a type of true threat, where a speaker directed a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death. The First Amendment permitted Virginia to outlaw cross burnings done with the intent to intimidate, because burning a cross was a particularly virulent form of intimidation. THE LAW ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION 32. The applicant complained that the dissolution of the Association which he chaired amounted to a violation of his right to freedom of association as guaranteed by Article 11 of the Convention, which reads as follows: “ 1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. 2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.” The Government contested that argument. A. Admissibility 33. In the Government ’ s view, the application should be declared inadmissible as being incompatible ratione materiae with the provisions of the Convention in the light of Article 17, because the Association provided an institutional framework for expressing racial hatred against Jewish and Roma citizens. They drew attention to the fact that international human rights monitoring bodies (such as the Advisory Committee of the Framework Convention for the Protection of National Minorities and the European Commission against Racism and Intolerance (ECRI), see paragraphs 2 6 - 28 above) had also raised concerns about the threatening effect of the uniform, insignia and flags used in the Movement ’ s demonstrations. 34. The Government referred to the case-law of the Convention institutions, including the Court ’ s decision in Garaudy v. France ( ( dec. ), no. 65831/01, ECHR 2003-IX). They pointed out that, where the right to freedom of expression had been relied on by applicants to justify the publication of texts that infringed the very spirit of the Convention and the essential values of democracy, the European Commission of Human Rights had had recourse to Article 17 of the Convention, either directly or indirectly, in rejecting their arguments and declaring their applications inadmissible (examples included Glimmerveen and Hagenbeek v. the Netherlands, nos. 8348/78 and 8406/78, Commission decision of 11 October 1979, Decisions and Reports (DR) 18, p. 187, and Marais v. France, no. 31159/96, Commission decision of 24 June 1996, DR 86 -B, p. 184). In the Government ’ s view, the Court had subsequently confirmed that approach ( they referred to Lehideux and Isorni v. France, 23 September 1998, §§ 47 and 53, Reports of Judgments and Decisions 1998 - VII). Moreover, they pointed out that, in a case concerning Article 11 ( W.P. and Others v. Poland ( dec. ), no. 42264/98, ECHR 2004 - VII), the Court had observed that “the general purpose of Article 17 is to prevent totalitarian groups from exploiting in their own interests the principles enunciated by the Convention”. Similar conclusions had been reached in the cases of Norwood v. the United Kingdom ( ( dec. ), no. 23131/03, ECHR 2004 - XI), and Witzsch v. Germany ( ( dec. ), no. 7485/03, 13 December 2005 ); the Government referred by contrast to Vajnai v. Hungary ( no. 33629/06, § 25, ECHR 2008 ). 35. The applicant argued in reply that the activities of the Association did not constitute abuse of the right to freedom of expression and association, their objective having been the restoration of the rule of law by protecting citizens from criminals. The Association had not been involved in any activity aimed at the destruction of any of the rights and freedoms set forth in the Convention. 36. The Court observes at the outset that, unlike the cases cited by the Government involving the right to freedom of expression, the present application concerns the applicant ’ s right to freedom of association, and indeed a quite serious restriction on it, resulting in the termination of the Association ’ s legal existence as such. Therefore, the present application is to be distinguished from those relied on by the Government. In respect of the latter the Court observes that, particularly in Garaudy and in Lehideux and Isorni ( both cited above), the justification of Nazi-like politics was at stake. Consequently, the finding of an abuse under Article 17 lay in the fact that Article 10 had been relied on by groups with totalitarian motives. 37. In the instant case, however, it has not been argued by the Government that the applicant expressed contempt for the victims of a totalitarian regime (contrast Witzsch, cited above) or that he belonged to a group with totalitarian ambitions. Nor does the information contained in the case file support such a conclusion. The applicant was, at the material time, the chairman of a registered association. He complains about the dissolution of that association together with that of a movement which, in the domestic courts ’ view, constituted an entity within that association, essentially on account of a demonstration which had not been declared unlawful at the domestic level and did not lead to any act of violence. In these circumstances, the Court cannot conclude that the Association ’ s activities were intended to justify or propagate an ideology of oppression serving “totalitarian groups”. 38. Those activities, whose compatibility with Article 11 of the Convention will be the subject matter of a review on the merits (compare and contrast Féret v. Belgium, no. 15615/07, § 52, 16 July 2009), do not reveal prima facie any act aimed at the destruction of any of the rights and freedoms set forth in the Convention (see Sidiropoulos and Others v. Greece, 10 July 1998, § 29, Reports 1998 ‑ IV) or any prima facie intention on the applicant ’ s part to publicly defend or disseminate propaganda in support of totalitarian views (see Vajnai, cited above, §§ 24 ‑ 26). Only when the above-mentioned review is complete will the Court be in a position to decide, in the light of all the circumstances of the case, whether Article 17 of the Convention should be applied (see Refah Partisi (the Welfare Party) and Others v. Turkey [GC], nos. 41340/98, 41342/98, 41343/98 and 41344/98, § 96, ECHR 2003 ‑ II). 39. It follows that, for the Court, the application does not constitute an abuse of the right of petition for the purposes of Article 17 of the Convention. Therefore, it is not incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3. The Court further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions ( a ) The Government 40. The Government maintained that the Movement had not had a distinct legal status but had been a unit of the Association created, organised and financed by the latter. Its members had acted in the interests and under the guidance of the Association and paid their membership fees to it. The fact that the Association ’ s charter did not clarify its internal structure could not lead to the conclusion that the Movement had not been de jure part of the Association. However, even assuming that the Movement had been a distinct entity de jure, its de facto links to the Association justified the finding that the Association had overstepped its freedom of expression on account of the Movement ’ s operation. Therefore, the Association chaired by the applicant had not been dissolved because of the acts of a distinct entity but because of its own activities. 41. Moreover, the Government were of the opinion that there had been no interference with the applicant ’ s freedom of association, since that freedom did not cover the right to associate in order to disseminate racist propaganda. However, even if there had been interference, it had been prescribed by law and served the legitimate aims of protecting public safety, the prevention of disorder or crime and the protection of the rights and freedoms of others. 42. Furthermore, the interference had been necessary in a democratic society, given the racist and anti-Semitic content of the demonstrations staged by the Movement and its paramilitary rituals, which were intimidating and traumatising, promoted segregation, increased social tension and provoked violence. As to proportionality, dissolution was an appropriate sanction for the propagation of racial discrimination and segregation. It was not even the most severe sanction available, since criminal sanctions could be invoked as well as an ultima ratio against the individuals involved who were responsible for the most serious expressions of racial hatred, inciting others to violence. ( b ) The applicant 43. At the outset the applicant stressed that, contrary to the findings of the domestic courts, the impugned actions of the Movement could not be imputed to the dissolved Association. He disputed that the Movement had constituted an integral part of the Association, since the two entities had functioned separately and independently, albeit in cooperation. He also emphasised that none of the Association ’ s members had participated in the Movement. 44. The applicant contested the Government ’ s argument that the dissolution of the Association had pursued a legitimate aim in the interests of national security or public safety, that is, for the prevention of disorder and crime and the protection of the rights and freedoms of others within the meaning of Article 11 § 2 of the Convention. In his view, the courts had failed to establish any instances of actual disorder or any violation of the rights of others. He stressed that the domestic decisions had referred to a merely hypothetical danger whose prevention could not be seen as a legitimate aim under the Convention. 45. Furthermore, the applicant alleged that, even assuming that the interference with the rights enshrined under Article 11 of the Convention had been lawful, the dissolution of the association had been neither necessary nor proportionate to the aims pursued. He noted that any interference by the public authorities with the exercise of the right of freedom of association had to be in proportion to the seriousness of the impugned conduct; thus, the sanction pronounced by the domestic courts had been excessively severe. Under the Court ’ s case-law, dissolution was reserved for situations in which the activities of an association seriously endangered the very essence of the democratic system; neither the Association ’ s nor the Movement ’ s activities had sought or had such an effect. In any event, the relevant domestic law did not provide for any sanction other than dissolution in respect of the allegedly unlawful activities of an association, a fact which in itself excluded all proportionality. 46. The applicant also pointed out that the exceptions set out in Article 11 § 2 were to be construed narrowly : only convincing and compelling reasons could justify restrictions on freedom of association. However, in the present case, the domestic courts had not adduced sufficient and relevant reasons for the restriction, since they had failed to demonstrate how the activities of the Association were capable of provoking conflicts or either supporting or promoting violence and the destruction of democracy. Indeed, the Association ’ s activities had merely been aimed at enabling the discussion of unresolved social problems such as the security of vulnerable people and the extraordinarily high crime rate. 47. The applicant further drew attention to the Court ’ s case-law considering Article 11 in the light of Article 10. In that context he conceded that the ideas expressed by the Movement might be offensive or shocking. Nevertheless, they did not amount to incitement to hatred or intolerance, and were thus compatible with the principles of pluralism and tolerance within a democratic society. ( c ) The third party 48. The European Roma Rights Centre submitted that the freedoms guaranteed under Article 11 of the Convention could be restricted in order to protect the rights and freedoms of minority communities. Making reference, inter alia, to the relevant provisions of the International Convention on the Elimination of All Forms of Racial Discrimination, it argued that organisations which attempted to justify or promote racial hatred and discrimination in any form did not come within the scope of the protection provided by Article 11. The third party further drew attention to the fact that minorities, and in particular the Roma, enjoyed special protection under Article 14 of the Convention, and referred to the emerging international consensus amongst Contracting States of the Council of Europe towards recognising an obligation to protect their security. 2. The Court ’ s assessment ( a ) Whether there was interference 49. The Court notes that the Association chaired by the applicant was dissolved and that the effects of that measure extended to the Movement (see paragraph 15 above). It therefore considers that there was interference with the applicant ’ s rights guaranteed under Article 11 of the Convention. ( b ) Whether the interference was justified 50. Such interference will constitute a violation of Article 11 unless it was prescribed by law, pursued one or more legitimate aims for the purposes of Article 11 § 2 and was necessary in a democratic society to achieve those aims. ( i ) “Prescribed by law” 51. The Court observes that the Association, and consequently the Movement, was dissolved under section 16(2) ( d) of Act no. II of 1989 on the right to freedom of association (see paragraph 18 above), including the reference therein to section 2(2) (“prejudice the rights and liberties of others”). It further takes note of the parties ’ diverging arguments as to whether the domestic court decisions lawfully included the dissolution of the Movement in ordering the Association ’ s disbandment. In this connection the Court notes that, in reply to the prosecution authorities ’ factual observations (see in detail in paragraph 11 above), the Budapest Court of Appeal and the Supreme Court held (see paragraphs 15 ‑ 16 above) that the Movement had to be regarded, as a matter of interpretation of the domestic law on associations, as an entity operating within the Association rather than independently. Those courts observed that the principal activity of the Association was the founding, operation, guidance and financing of the Movement. The Court finds no particular element in the case file or the parties ’ submissions which would render this application of the law arbitrary, the national authorities being better positioned to provide an interpretation of the national law and to assess evidence. In view of the fact that the creation of the Movement was a project of the Association, that the Movement and the Association shared a bank account, that candidates for membership of the Movement were assessed by the Association and that the former ’ s uniform could be bought from the latter, the Court does not find the position of those courts unreasonable. Consequently, the Court is satisfied that the dissolution of the Association on account of the actions of the Movement was “prescribed by law”, given the domestic courts ’ findings as to their relationship. ( ii ) Legitimate aim 52. The Court considers that the impugned measure can be seen as pursuing the aims of public safety, the prevention of disorder and the protection of the rights of others, all of which are legitimate for the purposes of Article 11 § 2 of the Convention, notwithstanding the applicant ’ s allegation that the domestic courts had not demonstrated the existence of any actual instances of disorder or violation of the rights of others (see paragraph 44 above). It remains to be ascertained whether the impugned measure was necessary in a democratic society. ( iii ) Necessary in a democratic society ( α ) General principles 53. The general principles articulated in the Court ’ s case-law in this sphere are summarised in the case of United Communist Party of Turkey and Others v. Turkey (30 January 1998, Reports 1998 - I) as follows. “42. The Court reiterates that notwithstanding its autonomous role and particular sphere of application, Article 11 must also be considered in the light of Article 10. The protection of opinions and the freedom to express them is one of the objectives of the freedoms of assembly and association as enshrined in Article 11 (see, among other authorities, the Young, James and Webster v. the United Kingdom judgment of 13 August 1981, Series A no. 44, p. 23, § 57, and the Vogt v. Germany judgment of 26 September 1995, Series A no. 323, p. 30, § 64). 43. That applies all the more in relation to political parties in view of their essential role in ensuring pluralism and the proper functioning of democracy ... As the Court has said many times, there can be no democracy without pluralism. It is for that reason that freedom of expression as enshrined in Article 10 is applicable, subject to paragraph 2, not only to ‘ information ’ or ‘ ideas ’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb (see, among many other authorities, the Vogt judgment cited above, p. 25, § 52). The fact that their activities form part of a collective exercise of freedom of expression in itself entitles political parties to seek the protection of Articles 10 and 11 of the Convention. ... 45. Democracy is without doubt a fundamental feature of the European public order (see the Loizidou judgment cited above, p. 27, § 75). ... In addition, Articles 8, 9, 10 and 11 of the Convention require that interference with the exercise of the rights they enshrine must be assessed by the yardstick of what is ‘ necessary in a democratic society ’. The only type of necessity capable of justifying an interference with any of those rights is, therefore, one which may claim to spring from ‘ democratic society ’. Democracy thus appears to be the only political model contemplated by the Convention and, accordingly, the only one compatible with it. ... 46. Consequently, the exceptions set out in Article 11 are, where political parties are concerned, to be construed strictly; only convincing and compelling reasons can justify restrictions on such parties ’ freedom of association. In determining whether a necessity within the meaning of Article 11 § 2 exists, the Contracting States have only a limited margin of appreciation, which goes hand in hand with rigorous European supervision embracing both the law and the decisions applying it, including those given by independent courts. The Court has already held that such scrutiny was necessary in a case concerning a Member of Parliament who had been convicted of proffering insults (see the Castells judgment cited above, pp. 22–23, § 42); such scrutiny is all the more necessary where an entire political party is dissolved and its leaders banned from carrying on any similar activity in the future. 47. When the Court carries out its scrutiny, its task is not to substitute its own view for that of the relevant national authorities but rather to review under Article 11 the decisions they delivered in the exercise of their discretion. This does not mean that it has to confine itself to ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; it must look at the interference complained of in the light of the case as a whole and determine whether it was ‘ proportionate to the legitimate aim pursued ’ and whether the reasons adduced by the national authorities to justify it are ‘ relevant and sufficient ’. In so doing, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 11 and, moreover, that they based their decisions on an acceptable assessment of the relevant facts (see, mutatis mutandis, the Jersild v. Denmark judgment of 23 September 1994, Series A no. 298, p. 26, § 31).” 54. Further relevant principles are contained in the judgment in Refah Partisi (the Welfare Party) and Others (cited above), as follows: “( γ ) The possibility of imposing restrictions, and rigorous European supervision 9 6. The freedoms guaranteed by Article 11, and by Articles 9 and 10 of the Convention, cannot deprive the authorities of a State in which an association, through its activities, jeopardises that State ’ s institutions, of the right to protect those institutions. In this connection, the Court points out that it has previously held that some compromise between the requirements of defending democratic society and individual rights is inherent in the Convention system. For there to be a compromise of that sort any intervention by the authorities must be in accordance with paragraph 2 of Article 11 – a matter which the Court considers below. ... ... 98. ... [A] political party may promote a change in the law or the legal and constitutional structures of the State on two conditions: firstly, the means used to that end must be legal and democratic; secondly, the change proposed must itself be compatible with fundamental democratic principles. It necessarily follows that a political party whose leaders incite to violence or put forward a policy which fails to respect democracy or which is aimed at the destruction of democracy and the flouting of the rights and freedoms recognised in a democracy cannot lay claim to the Convention ’ s protection against penalties imposed on those grounds (see Yazar and Others v. Turkey, nos. 22723/93, 22724/93 and 22725/93, § 49, ECHR 2002-II, and, mutatis mutandis, the following judgments: Stankov and the United Macedonian Organisation Ilinden v. Bulgaria, nos. 29221/95 and 29225/95, § 97, ECHR 2001-IX, and Socialist Party and Others v. Turkey, judgment of 25 May 1998, Reports 1998-III, pp. 1256-57, §§ 46-47). 99. The possibility cannot be excluded that a political party, in pleading the rights enshrined in Article 11 and also in Articles 9 and 10 of the Convention, might attempt to derive therefrom the right to conduct what amounts in practice to activities intended to destroy the rights or freedoms set forth in the Convention and thus bring about the destruction of democracy (see Communist Party (KPD) v. Germany, no. 250/57, Commission decision of 20 July 1957, Yearbook 1, p. 222). In view of the very clear link between the Convention and democracy ..., no one must be authorised to rely on the Convention ’ s provisions in order to weaken or destroy the ideals and values of a democratic society. Pluralism and democracy are based on a compromise that requires various concessions by individuals or groups of individuals, who must sometimes agree to limit some of the freedoms they enjoy in order to guarantee greater stability of the country as a whole (see, mutatis mutandis, Petersen v. Germany ( dec. ), no. 39793/98, ECHR 2001-XII). In that context, the Court considers that it is not at all improbable that totalitarian movements, organised in the form of political parties, might do away with democracy, after prospering under the democratic regime, there being examples of this in modern European history. ... ( δ ) Imputability to a political party of the acts and speeches of its members 101. The Court further considers that the constitution and programme of a political party cannot be taken into account as the sole criterion for determining its objectives and intentions. The political experience of the Contracting States has shown that in the past political parties with aims contrary to the fundamental principles of democracy have not revealed such aims in their official publications until after taking power. That is why the Court has always pointed out that a party ’ s political programme may conceal objectives and intentions different from the ones it proclaims. To verify that it does not, the content of the programme must be compared with the actions of the party ’ s leaders and the positions they defend. Taken together, these acts and stances may be relevant in proceedings for the dissolution of a political party, provided that as a whole they disclose its aims and intentions ... ( ε ) The appropriate timing for dissolution 102. In addition, the Court considers that a State cannot be required to wait, before intervening, until a political party has seized power and begun to take concrete steps to implement a policy incompatible with the standards of the Convention and democracy, even though the danger of that policy for democracy is sufficiently established and imminent. The Court accepts that where the presence of such a danger has been established by the national courts, after detailed scrutiny subjected to rigorous European supervision, a State may ‘ reasonably forestall the execution of such a policy, which is incompatible with the Convention ’ s provisions, before an attempt is made to implement it through concrete steps that might prejudice civil peace and the country ’ s democratic regime ’ (see the Chamber ’ s judgment, § 81). 103. The Court takes the view that such a power of preventive intervention on the State ’ s part is also consistent with Contracting Parties ’ positive obligations under Article 1 of the Convention to secure the rights and freedoms of persons within their jurisdiction. Those obligations relate not only to any interference that may result from acts or omissions imputable to agents of the State or occurring in public establishments but also to interference imputable to private individuals within non ‑ State entities ... A Contracting State may be justified under its positive obligations in imposing on political parties, which are bodies whose raison d ’ être is to accede to power and direct the work of a considerable portion of the State apparatus, the duty to respect and safeguard the rights and freedoms guaranteed by the Convention and the obligation not to put forward a political programme in contradiction with the fundamental principles of democracy. ( ζ ) Overall examination 104. In the light of the above considerations, the Court ’ s overall examination of the question whether the dissolution of a political party on account of a risk of democratic principles being undermined met a ‘ pressing social need ’ (see, for example, Socialist Party and Others, cited above, p. 1258, § 49) must concentrate on the following points: ( i ) whether there was plausible evidence that the risk to democracy, supposing it had been proved to exist, was sufficiently imminent; (ii) whether the acts and speeches of the leaders and members of the political party concerned were imputable to the party as a whole; and (iii) whether the acts and speeches imputable to the political party formed a whole which gave a clear picture of a model of society conceived and advocated by the party which was incompatible with the concept of a ‘ democratic society ’. 105. The overall examination of the above points that the Court must conduct also has to take account of the historical context in which the dissolution ... took place ... in the country concerned to ensure the proper functioning of ‘ democratic society ’ (see, mutatis mutandis, Petersen, cited above).” 55. The Court ’ s judgment in Herri Batasuna and Batasuna v. Spain (nos. 25803/04 and 25817/04, ECHR 2009) contains further relevant passages: “79. ... It necessarily follows that a political party whose leaders incite to violence or put forward a policy which fails to respect democracy or which is aimed at the destruction of democracy and the flouting of the rights and freedoms recognised in a democracy cannot lay claim to the Convention ’ s protection against penalties imposed on those grounds ... ... 81. ... [A] State may ‘ reasonably forestall the execution of such a policy, which is incompatible with the Convention ’ s provisions, before an attempt is made to implement it through concrete steps that might prejudice civil peace and the country ’ s democratic regime ’ (see Refah Partisi (the Welfare Party) and Others, cited above, § 102). ... 83. ... [The] Court ’ s overall examination of the question whether the dissolution of a political party on account of a risk of democratic principles being undermined met a ‘ pressing social need ’ (see, for example, Socialist Party and Others, cited above, § 49) must concentrate on the following points: ( i ) whether there was plausible evidence that the risk to democracy, supposing it had been proved to exist, was sufficiently and reasonably imminent, and (ii) whether the acts and speeches imputable to the political party formed a whole which gave a clear picture of a model of society conceived and advocated by the party which was incompatible with the concept of a ‘ democratic society ’ ...” ( β ) Application of those principles to the present case 56. The Court points out at the outset that, although the right to create and operate political parties falls within the protection of Article 11 of the Convention, as does the right to create and operate social organisations, these two types of entity differ from each other as regards, amongst other elements, the role which they play in the functioning of a democratic society, since many social organisations contribute to that functioning only in an indirect manner. In several member States of the Council of Europe, political parties enjoy a special legal status which facilitates their participation in politics in general and in elections in particular; they also have specific legally endorsed functions in the electoral process and in the formation of public policies and public opinion. Social organisations do not normally enjoy such legal privileges and have, in principle, fewer opportunities to influence political decision ‑ making. Many of them do not participate in public political life, although there is no strict separation between the various forms of associations in this respect, and their actual political relevance can be determined only on a case-by-case basis. Social movements may play an important role in the shaping of politics and policies, but compared with political parties such organisations usually have fewer legally privileged opportunities to influence the political system. However, given the actual political impact which social organisations and movements have, when any danger to democracy is being assessed, regard must be had to their influence. 57. In the Court ’ s view, the State is also entitled to take preventive measures to protect democracy vis-à-vis such non-party entities if a sufficiently imminent prejudice to the rights of others threatens to undermine the fundamental values on the basis of which a democratic society exists and functions. One such value is the coexistence of members of society free from racial segregation, without which a democratic society is inconceivable. The State cannot be required to wait, before intervening, until a political movement takes action to undermine democracy or has recourse to violence. Even if that movement has not made an attempt to seize power and the risk of its policy to democracy is not imminent, the State is entitled to act preventively if it is established that such a movement has started to take concrete steps in public life to implement a policy incompatible with the standards of the Convention and democracy (see Refah Partisi (the Welfare Party) and Others, cited above, § 102). 58. In assessing the necessity and proportionality of the measure complained of, the Court notes that the instant case concerns the dissolution of an association and a movement rather than that of a political party. The responsibilities originating in the particular constitutional role and legal privileges that apply to political parties in many member States of the Council of Europe may apply in the case of social organisations only to the extent that the latter do actually have a comparable degree of political influence. On the other hand, the Court is aware that the termination of the legal existence of the Association and the Movement was a sanction of considerable gravity, because it equated to stripping these groups of the legal, financial and practical advantages normally secured to registered associations in most jurisdictions (see paragraph 18 above). Therefore, any such measure must be supported by relevant and sufficient reasons, just as in the case of dissolution of a political party, although in the case of an association, given its more limited opportunities to exercise national influence, the justification for preventive restrictive measures may legitimately be less compelling than in the case of a political party. In view of the difference in the importance for a democracy between a political party and a non-political association, only the former deserves the most rigorous scrutiny of the necessity of a restriction on the right to associate (compare, per analogiam, the level of protection granted to political speech and to speech which does not concern matters of public interest, in Lingens v. Austria, 8 July 1986, § 42, Series A no. 103, and Tammer v. Estonia, no. 41205/98, § 62, ECHR 2001 ‑ I ). This distinction has to be applied with sufficient flexibility. As regards associations with political aims and influence, the level of scrutiny will depend on the actual nature and functions of the association in view of the circumstances of the case. 59. The Court observes that the Movement about whose dissolution the applicant complains was created by the Association with the stated purpose of “defending a physically, spiritually and intellectually defenceless Hungary ” (see paragraph 8 above). The Movement ’ s subsequent activities involved rallies and demonstrations, the members sporting uniforms and parading in military-like formations. These events were held in various parts of the country, and in particular in villages with large Roma populations such as Tatárszentgyörgy; calls were also made for the defence of “ethnic Hungarians” against so-called “Gypsy criminality” (see paragraph 10 above). In reaction to this sequence of events, the public prosecutor brought an action against the Movement and the Association, the essence of which was that the defendants ’ activities amounted to racist intimidation of citizens of Roma origin (see paragraph 11 above). 60. In the ensuing judicial proceedings the courts assessed the links between the two defendants and found convincing evidence that they did not constitute separate entities. In view of the arguments considered in this context, the Court cannot find this conclusion unreasonable or arbitrary (see paragraphs 11, 13, 15, 16 and 51 above). 61. The case resulted in the dissolution of both the Association and the Movement. In essence, the domestic courts found that even though no actual violence had occurred as a result of the defendants ’ activities, they were liable for having created an anti-Roma atmosphere through verbal and visual demonstrations of power. This amounted to a breach of the relevant law on associations, ran counter to human dignity and prejudiced the rights of others, that is, of Roma citizens. In the latter connection the courts observed that the central theme of the Tatárszentgyörgy rally was “Gypsy criminality”, a racist concept. The courts paid particular attention to the fact that the impugned rallies involved military- style uniforms, commands, salutes and formations as well as armbands reminiscent of Arrow Cross symbols. On appeal, this reasoning was extended to include considerations to the effect that the populations of the villages targeted by the Movement were a “captive audience”, because those citizens had not been in a position to avoid the extreme and exclusionary views conveyed by the Movement ’ s actions. In the courts ’ view, the latter amounted to creating a public menace by generating social tension and bringing about an atmosphere of impending violence (see paragraphs 15 and 16 above). 62. The Court reiterates that it is in the first place for the national authorities, notably the courts, to interpret and apply domestic law (see, among many other authorities, Lehideux and Isorni, cited above, § 50 ). The Court ’ s task is merely to review the decisions delivered by the authorities within their margin of appreciation. In so doing, it must satisfy itself that they based their decisions on an acceptable assessment of the relevant facts (see Incal v. Turkey, 9 June 1998, § 48, Reports 1998 ‑ IV). In the circumstances of the present case, the Court cannot find the conclusions of the Hungarian courts unreasonable or arbitrary and it shares the view of those courts that the activities of and the ideas expressed by the Movement relied on a race-based comparison between the Roma minority and the ethnic Hungarian majority (see paragraph 13 above). 63. The Court has previously held, in the context of Article 10, that ideas or conduct cannot be excluded from the protection provided by the Convention merely because they are capable of creating a feeling of unease in groups of citizens or because some may perceive them as disrespectful (see Vajnai, cited above, § 57). It is of the view that similar considerations must apply to freedom of association in so far as it concerns the association of individuals in order to further ideas which are less than widely accepted, or even shocking or disturbing. Indeed, unless the association in question can reasonably be regarded as a breeding ground for violence or as incarnating a negation of democratic principles, radical measures restricting such fundamental rights as that of freedom of association – in the name of protecting democracy – are difficult to reconcile with the spirit of the Convention, which is aimed at guaranteeing the articulation of political views ( even those which are difficult to accept for the authorities or a larger group of citizens and contest the established order of society ) through all peaceful and lawful means, including association and assemblies (see, mutatis mutandis, Güneri and Others v. Turkey, nos. 42853/98, 43609/98 and 44291/98, § 76, 12 July 2005). 64. That being so, it has to be ascertained whether in this particular case the actions of the Association and the Movement remained within the limits of legal and peaceful activities. In this connection the Court cannot overlook the fact that their activists staged several rallies, such as the event in Tatárszentgyörgy which involved some 200 persons in a village of approximately 1,800 inhabitants. It is true that no actual violence occurred, although it is not possible to determine with hindsight whether or not this was because of the presence of the police. The activists were marching in the village wearing military- style uniforms and threatening armbands, in a military-like formation, giving salutes and issuing commands of the same kind. 65. In the Court ’ s view, such a rally was capable of conveying the message to those present that its organisers had the intention and the capacity to have recourse to a paramilitary organisation to achieve their aims, whatever they might be. The paramilitary formation was reminiscent of the Hungarian Nazi (Arrow Cross) movement, which was the backbone of the regime that was responsible, amongst other things, for the mass extermination of Roma in Hungary. Having regard to the fact that there were established organisational links between the Movement whose activists were present and the Association, the Court also finds that the intimidating effect of the rallies in Tatárszentgyörgy and elsewhere must have gained momentum – and indeed, have been multiplied – by virtue of the fact that the rallies were backed by a registered association benefiting from legal recognition. 66. The Court considers that the demonstration by political protagonists of their ability and willingness to organise a paramilitary force goes beyond the use of peaceful and lawful means of articulating political views. In the light of historical experience – such as that of Hungary in the wake of the era of Arrow Cross power – the reliance of an association on paramilitary demonstrations which express racial division and implicitly call for race ‑ based action must have an intimidating effect on members of a racial minority, especially when they are in their homes and as such constitute a captive audience. In the Court ’ s view, this exceeds the limits of the scope of protection secured by the Convention in relation to expression (see Vajnai, cited above ) or assemblies and amounts to intimidation, which is – in the words of the United States Supreme Court ’ s judgment in Virginia v. Black (see paragraph 31 above) – a “ true threat ”. The State is therefore entitled to protect the right of the members of the target groups to live without intimidation. This is particularly true because they were singled out on a racial basis and were intimidated on account of their belonging to an ethnic group. In the Court ’ s view, a paramilitary march goes beyond the mere expression of a disturbing or offensive idea, since the message is accompanied by the physical presence of a threatening group of organised activists. Where the expression of ideas is accompanied by a form of conduct, the Court considers that the level of protection generally granted to freedom of expression may be reduced in the light of important public-order interests related to that conduct. If the conduct associated with the expression of ideas is intimidating or threatening or interferes with the free exercise or enjoyment by another of any Convention right or privilege on account of that person ’ s race, these considerations cannot be disregarded even in the context of Articles 10 and 11. 67. In the instant case the impugned activities quite clearly targeted the Roma minority, which was supposedly responsible for “Gypsy criminality”, and the Court is not convinced by the applicant ’ s arguments that the intention of the dissolved entities was not the singling-out and intimidation of this vulnerable group (see Horváth and Kiss v. Hungary, no. 11146/11, § 102, 29 January 2013). In this connection the Court recognises the concerns of various international bodies (see paragraphs 26 - 28 above). 68. As the Court has already pointed out (see paragraph 57 above), in such circumstances the authorities could not be required to await further developments before intervening to secure the protection of the rights of others, since the Movement had taken concrete steps in public life to implement a policy incompatible with the standards of the Convention and democracy. 69. The Court considers that the intimidating character of the rallies in question is an overriding consideration, despite the fact that the actual assemblies were not banned by the authorities and no violent act or crime occurred. What matters is that the repeated organisation of the rallies (see paragraph 15 above) was capable of intimidating others and therefore of affecting their rights, especially in view of the location of the parades. With regard to the dissolution of the Association, it is immaterial that the demonstrations, taken in isolation, were not illegal, and the Court is not called upon in the present case to determine to what extent the demonstrations amounted to exercise of the Convention right of assembly. It may be only in the light of the actual conduct of such demonstrations that the real nature and goals of an association become apparent. In the Court ’ s view, organising a series of rallies allegedly in order to keep “Gypsy criminality” at bay by means of paramilitary parading can be regarded as implementing a policy of racial segregation. In fact, the intimidating marches can be seen as constituting the first steps in the realisation of a certain vision of “law and order” which is racist in essence. The Court would point out in this context that if the right to freedom of assembly is repeatedly exercised by way of intimidating marches involving large groups, the State is entitled to take measures restricting the related right to freedom of association in so far as it is necessary to avert the danger which such large-scale intimidation represents for the functioning of democracy (see paragraph 54 above). Large-scale, coordinated intimidation – related to the advocacy of racially motivated policies which are incompatible with the fundamental values of democracy – may justify State interference with freedom of association, even within the narrow margin of appreciation applicable in the present case. The reason for this relates to the negative consequences which such intimidation has on the political will of the people. While the incidental advocacy of anti-democratic ideas is not sufficient in itself to justify banning a political party on the ground of compelling necessity (see paragraph 53 above), and even less so in the case of an association which cannot make use of the special status granted to political parties, the circumstances taken overall, and in particular any coordinated and planned actions, may constitute sufficient and relevant reasons for such a measure, especially where other potential forms of expression of otherwise shocking ideas are not directly affected (see paragraph 71 in fine below). 70. In view of the above considerations, the Court is convinced that the arguments adduced by the national authorities were relevant and sufficient to demonstrate that the impugned measure corresponded to a pressing social need. 71. The Court is aware that the disbanding of the Movement and the Association represented quite a drastic measure. However, it is satisfied that the authorities nevertheless chose the least intrusive – indeed, the only reasonable – course of action to deal with the issue. Moreover, it is to be noted that the domestic authorities had previously drawn the attention of the Association to the unlawful nature of the Movement ’ s activities, a move which resulted only in formal compliance (see paragraph 9 above), to the extent that further rallies took place during the ongoing proceedings (see paragraph 15 above – compare S.H. and Others v. Austria [GC], no. 57813/00, § 84, ECHR 2011). In the Court ’ s view, the threat to the rights of others represented by the Movement ’ s rallies could be effectively eliminated only by removing the organisational back - up of the Movement provided by the Association. Had the authorities acquiesced in the continued activities of the Movement and the Association by upholding their legal existence in the privileged form of an entity under the law on associations, the general public might have perceived this as legitimisation by the State of this menace. This would have enabled the Association, benefiting from the prerogatives of a legally registered entity, to continue to support the Movement, and the State would thereby have indirectly facilitated the orchestration of its campaign of rallies. Furthermore, the Court notes that no additional sanction was imposed on the Association or the Movement, or on their members, who were in no way prevented from continuing political activities in other forms (see, a fortiori, Refah Partisi (the Welfare Party) and Others, cited above, §§ 133-34). In these circumstances, the Court finds that the measure complained of was not disproportionate to the legitimate aims pursued. 72. The foregoing considerations are sufficient to enable the Court to conclude that there has been no violation of Article 11 of the Convention. | The Court found no violation of Article 11 of the Convention. It recalled that, as with political parties, the State was entitled to take preventive measures to protect democracy against associations if a sufficiently imminent threat to the rights of others undermined the fundamental values upon which a democratic society rested. The movement created by the Hungarian Guard Association had led to demonstrations conveying a message of racial division, which, reminiscent of the Hungarian Nazi Movement (Arrow Cross), had had an intimidating effect on the Roma minority. Such paramilitary marches had gone beyond the mere expression of a disturbing or offensive idea, which was protected under the Convention, given the physical presence of a threatening group of organised activists. Therefore, the only way to effectively eliminate the threat posed by the movement had been to remove the organisational backup provided by the association. |
983 | Cases in which the Court has found a violation of Article 18 in conjunction with Article 5 of the Convention | II. RELEVANT DOMESTIC LAW AND PRACTICE A. The 2000 Criminal Code 50. Article 179 of the Criminal Code provided: Article 179. Embezzlement and squandering “ 179.1. Embezzlement or squandering, that is, misappropriation of property belonging to another which has been entrusted to the perpetrator, is punishable by a fine in the amount of one hundred to five hundred manats, or 360 to 480 hours of community service, or imprisonment for a period of up to two years. 179.2. Commission of the same acts: 179.2.1. by a group of persons conspiring in advance; 179.2.2. repeatedly; 179.2.3. by means of abusing official authority; 179.2.4. inflicting significant damage ... 179.3. Commission of the acts provided for in Articles 179.1 and 179.2 of this Code: ... 179.3.2. in particularly large amounts; ... is punishable by imprisonment for a period of seven to twelve years” 51. Article 192 of the Criminal Code provided: Article 192. Illegal entrepreneurship “ 192.1. Conducting business activity without registration by means of the procedure provided for by the legislation of the Republic of Azerbaijan, or without obtaining a special permit (licence) where such a permit (licence) is required, or with the infringement of licencing conditions, or by using objects whose use is restricted in the absence of special permission, where such activity causes significant damage to citizens, organisations or the State and generates significant income is punishable by a fine equivalent to twice the value of the damage caused (or income generated ) as a result of the criminal offence, or imprisonment for a period of up to six months; 192.2. The same acts: 192.2.1. causing damage of an especially large value; 192.2.2. committed for the purpose of generating an especially large amount of income; 192.2.3. committed by an organised group are punishable by a fine equivalent to three times the value of the damage caused (or income generated ) as a result of the criminal offence, or restriction of liberty for a period of one year, or imprisonment for a period of up to five years.” 52. Article 213 of the Criminal Code provided: Article 213. Tax evasion “ 213.1. Evasion of payment of significant amounts of taxes or mandatory State social security contributions is punishable by a fine in the amount of one thousand to two thousand manats, or correctional work for a period of up to two years, or imprisonment for a period of up to three years, with or without deprivation of the right to hold a certain position or to engage in a certain activity for a period of up to three years. ...” 53. Article 308 of the Criminal Code provided: Article 308. Abuse of official power “ 308.1. Abuse of official power, that is, the deliberate use by an official of his official authority or the deliberate failure of an official to use his official authority when required, contrary to official interests, in connection with the execution of his official duties and with the aim of obtaining an unlawful advantage for himself or for third parties, where this causes serious harm to the rights and lawful interests of individuals or legal entities, or to the interests of society or the State protected by law is punishable by a fine in the amount of one thousand to two thousand manats, or deprivation of the right to hold a certain office or engage in a certain activity, or correctional work for a period of up to two years, or imprisonment for a period of up to three years; 308.2. The acts set out in Article 308.1 of this Code which have grave consequences or are committed with the aim of interfering with election (or referendum) results are punishable by imprisonment for a period of three to eight years with deprivation of the right to hold a certain office or engage in a certain activity for a period of up to three years.” 54. Article 313 of the Criminal Code provided: Article 313. Forgery by an official “ Forgery by an official, that is, the entry by an official of information which is known to be false into official documents or information resources, or the making of changes by him or her in such documents or information resources which distort original content, where such acts are committed out of greed or some other personal interest is punishable by a fine in the amount of five hundred to one thousand manats, or correctional work for a period of one to two years, or imprisonment for a period of up to two years, with deprivation of the right to hold a certain office or engage in a certain activity for a period of up to two years.” B. The 2000 Code of Administrative Offences (“the CAO”) 55. Article 223-1.1 of the CAO (Violation of the legislation on giving and receiving grants), as amended on 4 February 2014, provides, inter alia, that the failure by a domestic donor or a domestic recipient of a grant to submit copies of the grant agreement or grant decision to the relevant executive authority for registration within the period established by law is punishable by a fine in the amount of : AZN 1,000 to AZN 2,000 (in the case of an individual offender); AZN 1,500 to AZN 2,500 (in the case of an official); and AZN 5,000 to AZN 7,000 (in the case of a legal entity). The previous version of Article 223-1.1, in force before 4 February 2014, only made legal entities receiving grants liable ( as opposed to all recipients, including individuals ), and did not provide for any fine in respect of individual offenders. 56. Article 223-1.4 of the CAO, as amended on 4 February 2014, provides, inter alia, that conducting banking or any other transactions in connection with grant agreements or grant decisions which have not been registered in accordance with the Law on Grants is punishable by a fine in the amount of AZN 2,500 to AZN 5,000 in the case of an (NGO) official, and AZN 5,000 to AZN 8,000 in the case of a legal entity (the NGO itself). C. The 2000 Tax Code 57. Article 13.2.27 of the Tax Code defines non-commercial activity as a legal activity whose purpose is not generation of profit and which designates any income received for non-commercial purposes only, including purposes established in a (legal entity ’ s) charter. Such activity is otherwise considered to be commercial. 58. According to Article 106 of the Tax Code, grants, membership fees and donations received by non-commercial organisations are exempt from profit tax on legal entities. 59. Article 165.1.2 of the Tax Code establishes that the import of goods, provision of goods and services, and execution of work by recipients of foreign grants is not subject to value-added tax ( VAT ). 60. Articles 218, 219 and 220 of the Tax Code concern the simplified tax regime. Legal entities and individual entrepreneurs not required to register for VAT purposes are subject to the simplified tax regime, under which tax is levied at 4% for those conducting business in Baku and 2% for those conducting business in other regions. The taxable base is gross income received from the sale of goods and the provision of work and services, except for income subject to withholding tax. Legal entities working under the simplified tax regime are exempt from property tax. D. The 2000 Code of Criminal Procedure (“the CCrP”) 61. A detailed description of the relevant provisions of the CCrP concerning pre-trial detention and proceedings concerning the application and review of the preventive measure of remand in custody can be found in the Court ’ s judgments in Farhad Aliyev v. Azerbaijan (no. 37138/06, §§ 83 ‑ 102, 9 November 2010), and Muradverdiyev v. Azerbaijan (no. 16966/06, §§ 35-49, 9 December 2010). E. The 2003 Law on State Registration of Legal Entities and the State Register 62. Article 4.1, as amended on 4 February pursuant to Law no. 852 ‑ IVQD of 27 December 2013, provides: “4.1. An organisation, as well as a representative office or branch of a foreign legal entity, wishing to obtain legal entity status in the territory of the Republic of Azerbaijan shall obtain State registration and be entered into the State Register. Commercial organisations, as well as representative offices or branches of foreign legal entities, may carry out activities only after their State registration. Activities being carried out by them in the absence of State registration results in liability in accordance with the law.” F. The 2000 Law on Non-Governmental Organisations (Public Associations and Foundations) (“the NGO Law”) 63. Article 16 provides that the State registration of NGOs is carried out by the relevant executive authority (the Ministry of Justice) in accordance with the legislation on State registration of legal entities. An NGO acquires legal entity status only after State registration. 64. Article 24 provides that the property of an NGO comes from the following sources: membership fees paid by its founders or members; property fees and voluntary donations; revenue from the sale of goods, the provision of services or the execution of work; dividends or income from shares, bonds and other securities or deposits; income from the use or sale of its property; grants; and other forms of income not prohibited by law. 65. Article 24-1.5, as amended on 16 November 2014, provides that an NGO receiving a donation must submit information concerning the size of the donation received and its donor(s) to the relevant executive authority in accordance with the procedure established by that authority. No banking or other transactions can be conducted in respect of donations which have not been so notified to the relevant executive authority. 66. Article 24-1.6 provides that economic and legal matters related to the giving, receiving and use of grants are regulated by the Law on Grants. 67. Article 24-2, introduced into the NGO Law on 16 November 2014, provides that an NGO provides services and executes work – as specified in Article 24 of the NGO Law – in accordance with an agreement. An agreement on the provision of services or execution of work funded by foreign financial sources must be submitted to the relevant executive authority for registration (Article 24-2.1). An NGO which provides services or executes work without a relevant agreement, or pursuant to an unregistered agreement, is liable under the CAO (Article 24-2.2). G. The 1998 Law on Grants 68. Article 1 .1 defines a grant as financial aid for preparing and carrying out : humanitarian, social and ecological projects; work on the restoration of destroyed industrial or social facilities or infrastructure in areas damaged as a result of war or natural disaster; programmes in the areas of education, health care, culture, legal advice, information, publishing and sport; programmes in the areas of science, research and design; and other programmes of importance for the State and society. Grants must be only given for specific purposes. With the exception of donations regulated by the NGO Law and financial aid from State authorities, an NGO may not receive any aid in financial or material form in the absence of a grant agreement or grant decision. 69. Article 4.1 provides that either a written agreement between a donor and a recipient or a donor ’ s written decision on giving a grant is a lawful basis for giving, receiving and using the grant. 70. Article 4.2 provides that a grant can be used only for the purposes indicated in the grant agreement or grant decision. 71. Article 4.4, as amended on 4 February 2014 pursuant to Law no. 852-IVQD of 27 December 2013, provides, inter alia, that a grant recipient in the Republic of Azerbaijan must submit the grant agreement or grant decision to the relevant executive authority for registration (in accordance with the presidential decree on the implementation of the Law on Grants, the relevant executive authority in respect of non-religious, non-commercial organisations and individuals was the Ministry of Justice). 72. Article 4.5, as amended on 4 February 2014 pursuant to Law no. 852-IVQD of 27 December 2013, provides that no banking or other transactions can be carried out in respect of unregistered grant agreements or grant decisions. 73. Article 5.1 provides that taxation issues relating to money or other aid received as a grant in accordance with the Law on Grants are regulated by the Tax Code. Article 5.2 provides that no fees or other mandatory payments to the State budget may be withheld from the money or other aid received as a grant in accordance with the Law on Grants. H. Definition of entrepreneurial activity under domestic law 74. Article 13 of the 2000 Civil Code provides: Article 13. Entrepreneurial activity “ Entrepreneurial activity is an activity carried out independently by a person for the main purpose of obtaining profit (or income in the case of an individual entrepreneur) from the use of property, manufacture and/or sale of commodities, execution of work or provision of services.” 75. Article 1 of the 1992 Law on Entrepreneurial Activity provides: Article 1. Entrepreneurial activity “ Entrepreneurial activity is an activity carried out independently by a person for the main purpose of obtaining profit (or income in the case of an individual entrepreneur) from the use of property, sale of commodities, execution of work or provision of services. ” 76. Article 13.2.37 of the 2000 Tax Code provides: “13.2.37. Entrepreneurial activity is an activity carried out independently by a person for the main purpose of obtaining profit (or income in the case of an individual entrepreneur) from the use of property, supply of commodities, execution of work or provision of services.” I. Provisions of domestic law concerning legal assistance for detainees 77. Article 10.2.9 of the 2000 Code of Execution of Punishments (“the CEP ”) provides that inmates have the right to legal assistance. In accordance with Article 81.7 of the CEP, inmates are entitled to have meetings with advocates and other individuals authorised to provide them with legal assistance at their own request or at the request of their close relatives or legal representatives. The number and duration of such meetings are not limited (Article 81.8 of the CEP). An advocate or other person authorised to provide legal assistance is admitted to a penal establishment on presentation of a document confirming his identity and authority. Meetings are carried out in private at the request of the parties (Article 81.9 of the CEP). Similar provisions are contained in Article 17 of the Internal Disciplinary Rules for Pre-Trial Detention Facilities, approved by the Cabinet of Ministers Decision no. 63 of 26 February 2014. 78. Section 4 (I) of the 1999 Law on Advocates and Advocacy Activity provides that advocacy activity is carried out by persons admitted to the Bar Association in accordance with an established procedure. In accordance with section 4 (II), the defence of accused persons and those under suspicion in criminal proceedings is exclusively an advocacy activity. J. Decisions of the Plenum of the Supreme Court 1. Decision “on the application of the provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms and the case-law of the European Court of Human Rights in the administration of justice” of 30 March 2006 79. The relevant part of that decision reads: “13. ... the preventive measure of remand in custody must be considered an exceptional measure to be applied in cases where it is absolutely necessary and where the application of another preventive measure is not possible. 14. The courts should take into account that individuals whose right to liberty has been restricted are entitled, in accordance with Article 5 § 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms, to trial within a reasonable time, as well as to release pending trial if it is not necessary to apply the preventive measure of remand in respect of them.” 2. Decision “on the application of the legislation by the courts during the consideration of applications for the preventive measure of remand in custody in respect of an accused” of 3 November 2009 80. The relevant part of that decision reads: “3. In accordance with the legislation, there must be substantive and procedural grounds justifying remand in custody. The substantive grounds are to be understood as the evidence establishing a connection between the accused and the commission of the criminal offence of which he has been accused. The procedural grounds consist of the grounds justifying the lawfulness and necessity of remand, as determined by the court from the combination of the circumstances set out in Article 155 of the Code of Criminal Procedure [“the CCrP”]. When deciding to apply the preventive measure of remand, the courts must not be content with only listing the procedural grounds set out in Article 155 of [the CCrP], but must verify whether each ground is relevant in respect of the accused, and whether it is supported by the material in the case file. In so doing, the nature and gravity of the offence alleged to have been committed by the accused, information about his personality, age, family situation, occupation, health and other circumstances of that kind must be taken into consideration. ... 6. Applications for remand, extension of the detention period and replacement of detention with house arrest or release on bail must be considered in camera by a single judge in the court building within twenty-four hours of their receipt (regardless of whether it is a public holiday or after working hours). The presence at the hearing of the person whose rights may be restricted by the application is compulsory. The courts must take into account that the consideration of applications for remand or for extension of the detention period in the absence of the accused is allowed only in exceptional circumstances where it is not possible to ensure his presence at the hearing. Those circumstances may exist where the accused has absconded from the investigation, is being treated in a psychiatric hospital or for a serious illness, or where there are extraordinary circumstances, a declaration of quarantine, or other similar circumstances. ... 8. In accordance with Article 447.5 of [the CCrP], when considering an application for remand, a judge has a right to review the documents and material evidence serving as a basis for the application. The courts must appreciate that this provision of criminal procedural legislation does not provide for the examination and assessment of evidence by the courts. The judicial review under this provision should only consist of reviewing the initial evidence giving rise to the suspicion that the accused has committed a criminal offence and verifying the existence of the procedural grounds required for remand. 9. The courts should apply more scrutiny in ensuring that the material submitted by the preliminary investigation authority in connection with this issue is complete and sound. ... The application [for remand] must be accompanied by the material necessary for its consideration, for example, copies of records and decisions on the institution of the criminal proceedings, the accused ’ s arrest, the accused ’ s being charged, his questioning, and identity documents. Under Article 447.5 of [the CCrP], the judge has a right to request and review other documents (for example, statements given in connection with the charges or records of face-to-face formal confrontations) as well as the material evidence in order to determine whether the application [for remand] is substantiated. ... 13. ... the courts are reminded that, although the legislator determined the same material and procedural grounds and rules for the consideration of both applications for remand and applications for extension of a detention period, since the extension of a detention period restricts a person ’ s right to liberty as well as his right to the presumption of innocence for a long period, when considering applications of this kind, the courts must be careful, verify the grounds and reasons for the extension of the detention, and justify in a different manner in their decisions the necessity of extending the detention period from the necessity of the [initial] application of remand. While considering applications for extension of the accused ’ s detention period, courts must verify in detail the arguments in the application as to why it is not possible to terminate the preliminary investigation within the period previously established. In so doing, they must take into account that, in accordance with the case ‑ law of the European Court of Human Rights, relying on the same grounds which formed the basis of the [initial] application of remand in respect of the accused when ordering the extension of his detention period is considered a violation of the right to liberty and security from the point of view of Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.” III. RELEVANT INTERNATIONAL DOCUMENTS 81. The following are extracts from the conclusions reached in the Opinion on the compatibility with human rights standards of the legislation on non- governmental organisations of the Republic of Azerbaijan, adopted by the European Commission for Democracy Through Law (Venice Commission) at its 88 th Plenary Session (Venice, 14-15 October 2011 ) : “117. The Venice Commission reckons that, while legislation relating to NGO ’ s legal status has been improved in some aspects over the years, the 2009 amendments and the 2011 Decree unfortunately overturn the previous efforts to meet with the requirements of international standards. 118. The most problematic aspects of the 2009 Amended Law on NGOs and the 2011 Decree pertain to the registration of NGOs generally; the registration of branches and representatives of international NGOs specifically; the requirements relating to the content of the charters of NGOs; and the liability and dissolution of NGOs. 119. With regard to the registration, which in many countries is a rather formal procedure, the 2009 amended version of the Law on NGOs and the 2011 Decree have further added complications to an already complicated and lengthy procedure. The requirement for international NGOs to create branches and representatives and have them registered is of itself problematic.” 82. The following are extracts from the conclusions reached in the Opinion on the Law on Non-Governmental Organisations (Public Associations and Funds) as amended of the Republic of Azerbaijan, adopted by the Venice Commission at its 101 st Plenary Session (Venice, 12-13 December 2014): “88. The recent amendments to the Law on NGOs of the Republic of Azerbaijan and to several other legal acts (Law on Registration, Law on Grants, Code of Administrative Offences) have brought some limited positive changes: A specific period of up to 30 days is provided for within which NGOs are to rectify their alleged violations brought to their attention by a notification from state authorities. The right of NGOs to appeal to administrative bodies or to a court with respect of any measure of liability defined by law is now explicitly recognized. 89. Despite these positive changes, the amendments have not addressed many of the recommendations contained in the 2011 Opinion of the Venice Commission. The procedure of registration of NGOs has not been simplified in any substantive way, branches and representations of foreign NGOs are still object of specific, and problematic, regulation, and NGOs can still be dissolved for misgivings which are not serious enough to justify the imposition of the most severe sanction. 90. In addition, the amendments have introduced certain new controversial provisions. Branches and representations of foreign NGOs have been put into a yet more disadvantaged position with respect to other NGOs: additional reporting obligations, special penalties, limited validity of the agreements signed with the state and the excessive discretion of the state authorities to intervene in the matters of their internal life (obligatory content of their internal documents etc.). 91. Moreover, new obligations are imposed on NGOs with respect to the receipt of grants and donations and to reporting to the state authorities. Again, some of these obligations seem to be intrusive enough to constitute a prima facie violation of the right to freedom of association. 92. In general, the enhanced state supervision of NGOs seems to reflect a very paternalistic approach towards NGOs and calls again for sound justification. The same holds for new and enhanced penalties that can be imposed upon NGOs even for rather minor offences. 93. Globally, the cumulative effect of those stringent requirements, in addition to the wide discretion given to the executive authorities regarding the registration, operation and funding of NGOs, is likely to have a chilling effect on the civil society, especially on those associations that are devoted to key issues such as human rights, democracy and the rule of law. Like the Council of Europe Commissioner on Human Rights has, the Venice Commission finds that the amendments, in an overall assessment, ‘ further restrict the operations of NGOs in Azerbaijan ’ .” 83. On 19 August 2014 the Office of the UN High Commissioner for Human Rights published the following press release: “ Persecution of rights activists must stop – UN experts call on the Government of Azerbaijan GENEVA (19 August 2014) – United Nations human rights experts [Michel Forst, the Special Rapporteur on the situation of human rights defenders; Maina Kai, the Special Rapporteur on the rights to freedom of peaceful assembly and of association; and David Kaye, the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression] today condemned the growing tendency to prosecute prominent human rights defenders in Azerbaijan, and urged the Government ‘ to show leadership and reverse the trend of repression, criminalization and prosecution of human rights work in the country. ’ ‘ We are appalled by the increasing incidents of surveillance, interrogation, arrest, sentencing on the basis of trumped-up charges, assets-freezing and ban on travel of the activists in Azerbaijan, ’ they said. ‘ The criminalization of rights activists must stop. Those who were unjustifiably detained for defending rights should be immediately freed. ’ The experts highlighted the specific cases of Leyla Yunus, director of the Azerbaijani Institute of Peace and Democracy; Arif Yunus, head of Conflict Studies in the Institute of Peace and Democracy; Rasul Jafarov, coordinator of Art of Democracy and head of Human Rights Club; and Intigam Aliyev, chair of Legal Education Society. ‘ We are alarmed at the wave of politically-motivated repression of activists in reprisal for their legitimate work in documenting and reporting human rights violations, ’ they noted, reiterating their grave concerns about the deteriorating situation in the country for the third time in less than a year. The UN experts reminded the authorities of their legal obligations under international human rights law, which guarantees everyone in Azerbaijan the rights to freedom of expression, of peaceful assembly and association, without undue interference. ‘ The State ’ s primary responsibility should be to protect its civil society activists from intimidation, harassment, threats or attacks, ’ they stressed. ‘ Azerbaijan ’ s recent membership of the UN Committee on Non-Governmental Organizations does not square well with the authorities ’ actions directed at stifling freedoms on the ground, ’ the UN rights experts noted.” 84. On 20 August 2015 the Office of the UN High Commissioner for Human Rights published the following press release: “ ‘ Deeply distressing ’ – UN experts condemn latest prison sentencing of rights defenders in Azerbaijan GENEVA (20 August 2015) – A group of United Nations human rights experts [Michel Forst, Special Rapporteur on the situation of human rights defenders; Maina Kiai, Special Rapporteur on the rights to freedom of peaceful assembly and of association; David Kaye, Special Rapporteur on freedom of opinion and expression; Mónica Pinto, Special Rapporteur on the independence of judges and lawyers; Dainius Pûras, Special Rapporteur on the right to health; and Seong-Phil Hong, Chair ‑ Rapporteur of the UN Working Group on Arbitrary Detention] today condemned the recent prison sentencing of prominent Azerbaijani human rights activists Leyla and Arif Yunus as ‘ manifestly politically motivated and representative of the continuing repression of independent civil society in Azerbaijan. ’ On 13 August 2015, the Baku Grave Crimes Court sentenced Ms. and Mr. Yunus to eight and a half and seven years ’ imprisonment respectively on charges of fraud, tax evasion, and illegal entrepreneurship. They also face charges of treason. ‘ The authorities of Azerbaijan must put an end immediately to all forms of persecution against human rights activists in the country, ’ the experts said. ‘ Leyla and Arif Yunus are two of many activists in Azerbaijan, which include Anar Mammadli, Rasul Jafarov and Intigam Aliyev, who have been targeted because of their legitimate human rights work. ’ ‘ Criminalization of those working for the promotion and protection of human rights in the country is deeply disconcerting, ’ the experts said, reiterating a call on the authorities they made one year ago ‘ to reverse the trend of repression, criminalization and prosecution of human rights work in the country. ’ ‘ Silencing these prominent voices is having a devastating impact on the Azerbaijani civil society as a whole, ’ the experts warned. They expressed further concern about the serious deterioration of the health of the two human rights activists during their extended period in pre-trial detention, as well as throughout the course of their trial. ‘ We call on the Azerbaijani authorities to immediately provide them with adequate medical care, ’ they said. The human rights experts also drew attention to the fact that Ms. and Mr. Yunus ’ trial fell short of international norms and standards on the right to a fair trial. ‘ We are troubled at the lack of examination of the evidence provided and the refusal to allow international independent observers into the courtroom during the trial proceedings, ’ the experts noted. The UN experts reminded the Azerbaijani authorities of their legal obligations under international human rights law that guarantees everyone in Azerbaijan the rights to freedom of opinion, expression and association, the right not to be arbitrarily deprived of liberty, the right to a fair trial and the right to enjoy the highest attainable standard of physical and mental health. ‘ The State has the primary responsibility to protect human rights defenders from any form of harassment, intimidation and retaliation arising as a result of their legitimate and peaceful human rights activities, ’ they stressed.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 §§ 1 AND 3 OF THE CONVENTION 85. Relying on Article 5 §§ 1 (c) and 3 of the Convention, the applicant complained that he had been arrested and detained in the absence of a “reasonable suspicion” that he had committed a criminal offence. He further complained that the domestic courts had failed to provide relevant and sufficient reasons justifying the necessity of his continued detention. Article 5 §§ 1 (c) and 3 of the Convention reads: “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ... 3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.” A. Admissibility 86. 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 (a) The applicant 87. The applicant submitted that there was insufficient evidence and information to establish a “reasonable suspicion” that he had committed any of the criminal offences with which he had been charged. 88. He submitted that the activities of Human Rights Club, even in the absence of State registration, could not be considered illegal entrepreneurial activities. Human Rights Club was a non-governmental and non ‑ commercial organisation. The Law on State Registration only prohibited commercial legal entities from operating without State registration. In contrast, there was no such prohibition in domestic law in respect of non-commercial legal entities. This had previously been confirmed by the Government and various domestic authorities both at domestic level and before the Court. Accordingly, Human Rights Club could legally operate in the absence of State registration, and the non ‑ commercial nature of its activities could not be classified as illegal or commercial activities on that ground. In this connection, the applicant also referred to reports by the Council of Europe ’ s Commissioner for Human Rights and the Venice Commission, which stressed the cumbersome nature of State registration of NGOs and made reference to how this inevitably drove a number of NGOs to operate on the fringes of the law, and which also stressed that new amendments introduced to the Law on State Registration and the NGO Law since 2009 had overturned previous efforts to meet the requirements of international standards. 89. Since, owing to the above-mentioned problems, Human Rights Club lacked State registration – which is the subject of a separate application before the Court (application no. 27309/14 ) – it could not receive grants under domestic law. Therefore, the applicant, as its chairman, had received grants, signed agreements, opened bank accounts and conducted other activities in his individual capacity. The applicant submitted that, although registration of grants with the Ministry of Justice was required, before February 2014 the procedure for registering grants received by individuals had not been established, and there had been no rules prohibiting the expenditure of received grants or determining liability in that regard. 90. As for the criminal charges brought against him in connection with the use of unregistered grants, the applicant submitted that the failure to register grants, which was due to a lack of clear legal requirements and procedures, could not automatically qualify the use of granted funds as commercial ( “ entrepreneurial ” ) activity. Each grant agreement clearly set out the manner of the relevant grant and what type of activities it would fund. The registration, or lack thereof, of that agreement could not change the nature of the activities on which the grant was spent. Until February 2014 domestic law had only provided for the registration of grants received by legal entities; until then there had been no procedure established for the registration of grants received by individuals. Following this development, the applicant had stopped signing any grant agreements with donors. 91. Under domestic law, it was clear that failure to register a grant gave rise to liability under Article 223-1.1 of the CAO and was punishable by a fine. Receiving and using grants without registering them did not constitute a criminal offence, because the activity for which those grants were used was not commercial. 92. In particular, Article 192.2.2 of the Criminal Code related to commercial activity conducted illegally. The domestic law provided a clear definition of what constituted commercial (or “entrepreneurial”) activity. However, the applicant ’ s activities were non-commercial. The mere fact that he had not registered grants received for conducting that non ‑ commercial activity did not change the nature of that activity. Charging him under Article 192.2.2 of the Criminal Code had therefore been unlawful and arbitrary. 93. The charges under Articles 231.1 (tax evasion) and 308.2 (abuse of power) were derived from the first charge under Article 192.2.2 of the Criminal Code. By wrongly interpreting the applicant ’ s activity as commercial, the investigating authority had concluded that he had evaded paying taxes applicable to commercial profits and had abused his official powers by engaging in illegal commercial activities and avoiding payment of taxes. 94. The new charge of embezzlement brought against him in December 2014 had likewise been arbitrary. It was unclear from this charge to whom the embezzled money belonged, as no victim of the alleged offence had been mentioned in the case material. 95. For the above reasons, the applicant argued that there had been no “reasonable suspicion” that he had committed the criminal offences of which he had been accused. The charges against him were trumped up and aimed at preventing him from continuing his activities. 96. The applicant further argued that his detention had not been in compliance with the requirements of Article 5 § 3 of the Convention, because the domestic courts had failed to provide “relevant and sufficient” reasons justifying his pre-trial detention, and had also failed to properly consider whether alternative preventive measures could have been applied. (b) The Government 97. In respect of the requirements of Article 5 § 1 (c) of the Convention, the Government submitted that the applicant had been arrested on the basis of investigative measures taken following the receipt of information and material from the Ministry of Justice that a number of NGOs had illegally received grants from branches and representative offices of foreign NGOs. That material and information had been further corroborated by the applicant ’ s statements made on 31 July 2014, which had been sufficient to justify the applicant ’ s arrest under domestic law. Accordingly, the Government argued that there had been sufficiently specific information to raise a reasonable suspicion that the applicant had committed a criminal offence. 98. In respect of the requirements of Article 5 § 3 of the Convention, the Government argued that the courts had given relevant and sufficient reasons for their decisions that there had been a risk that, if not detained, the applicant would abscond from the investigation or hinder the proper conduct of the proceedings. Whilst it certainly would have been desirable for the domestic courts to have given more detailed reasoning as to the grounds for the applicant ’ s detention, in the circumstances of the present case this did not amount to a violation of his rights under Article 5 § 3. (c) The third parties (i) The Council of Europe Commissioner for Human Rights 99. The Commissioner submitted that the present case was an illustration of a serious and systemic human rights problem in Azerbaijan, which, in spite of numerous efforts by the Commissioner and other international stakeholders, to date remained unaddressed. The Commissioner ’ s observations focused on the major problem areas identified and observed during his visits to Azerbaijan in November 2012, May 2013 and October 2014. 100. In particular, the Commissioner expressed his concern about interferences with freedom of expression and the apparent intensification of the practice of unjustifiably or selectively prosecuting journalists and others who expressed critical opinions. He stated that several people working in the media had recently been prosecuted for incitement to national, racial or religious hatred and in some instances terrorism, as well as for hooliganism, tax evasion, drug possession and illegal possession of weapons. The Commissioner pointed to consistent reports that those cases were based on charges which lacked credibility and often followed critical reporting or posts on the Internet. 101. With regard to freedom of association, a number of NGOs, especially those operating in the field of human rights and those openly critical of the government, were reported to encounter severe obstacles in carrying out their work in Azerbaijan. Domestic NGOs faced difficulties, especially with regard to the restrictive application of the regulations on registration, which could result in long delays or the absence of any formal decision on registration. Moreover, the 2013 amendments to the Law on NGOs, the Law on Grants and the Code of Administrative Offences further restricted the operations of NGOs. Those amendments required NGOs to sign a formal grant agreement for any funding exceeding AZN 200. A failure to submit a copy of the grant agreement to the Ministry of Justice could result in the management of an NGO being fined an amount between AZN 1,500 and 2,500, and between AZN 5,000 and 7,000 in the case of legal entities. The NGO itself could also face fines and confiscation of property. In accordance with the amendments, the only way for an NGO to receive funding exceeding AZN 200 was by bank transfer. This created a problem for NGOs which were unregistered and consequently unable to open bank accounts. Cumbersome requirements for registration inevitably drove a number of NGOs to operate on the fringes of the law. The Commissioner had stated in his 2013 report that those amendments made the already onerous reporting obligations for NGOs even more onerous. 102. Subsequent amendments to the Law on NGOs and the Law on Grants, adopted in December 2013 and signed into law in February 2014, introduced additional administrative requirements with regard to NGO registration, the receipt and use of grants by NGOs and their reporting obligations. They also introduced new offences punishable by fines, notably those for operating without registration. Further amendments were introduced in October 2014, adding new regulations relating to the receipt of grants and donations by NGOs. New and enhanced penalties could be imposed for even rather minor offences. The cumulative effect of those stringent requirements was likely to have a chilling effect on civil society. 103. In the Commissioner ’ s view, a number of recent arrests and detentions of Azerbaijani human rights defenders were related to the above ‑ mentioned shortcomings in the NGO legislation and the way in which the legislation was implemented. Irregularities found in the activities of a number of the NGOs concerned actually derived from the onerous legislative framework relating to registration, reporting obligations, grants legislation and tax requirements. Notably, the charges in the present case and other cases had flowed from solutions which had had to be found by the human rights defenders in order to circumvent the difficulties of running an unregistered association and securing funding to continue its activities. The Commissioner was of the opinion that, by deliberately attempting to make independent human rights work in Azerbaijan impossible, the restrictive legislative framework constituted an integral part of the pattern of judicial harassment and reprisals against human rights defenders currently prevailing in Azerbaijan. 104. The Commissioner further stated that the applicant ’ s arrest and detention in August 2014 had been part of a more general crackdown on human rights defenders in Azerbaijan, which had intensified over the summer of 2014. The prosecutions of human rights defenders and prominent journalists for their engagement in activities which should be perfectly legal in a well-functioning democracy constituted reprisals against those who had cooperated with the Council of Europe or other organisations and denounced human rights violations in the country. 105. The applicant ’ s case provided a disturbing illustration of this pattern of reprisals. Among his other activities, the applicant was a long ‑ standing partner of the Council of Europe. He had provided the organisation with valuable information about the human rights situation in Azerbaijan over the past several years, and had also organised and participated in a number of side events during sessions of the PACE. 106. The Commissioner stated that the charges against the applicant were identical to those brought against a number of other human rights defenders, and had been brought shortly after his participation in a Council of Europe event in Strasbourg where he had drawn attention to negative developments in the field of human rights in Azerbaijan, including the new registration and reporting requirements imposed on NGOs. The Commissioner shared the concern expressed by many that the applicant ’ s arrest and detention had been an attempt to silence his efforts to report on human rights violations, and had aimed to prevent him from continuing his work. In cases like that of the applicant, there were concerns that pre-trial detention was imposed in the absence of a reasonable suspicion that a criminal offence had been committed, and was used as a means of silencing those expressing dissenting views and preventing them from providing information to international human rights bodies. (ii) Helsinki Foundation for Human Rights, Human Rights House Foundation and Freedom Now 107. The third parties submitted that in recent years the situation involving the targeting of human rights defenders, journalists and activists in Azerbaijan had grown increasingly dire, as evidenced by the almost complete shutdown of independent human rights organisations, the striking expansion in scope and severity of specious criminal charges used against civil society leaders, and the adoption of legislation regulating and controlling NGOs. Of particular concern was the imprisonment of human rights defenders, journalists and activists who had intensively cooperated with the Council of Europe and engaged with other international monitoring mechanisms. 108. Since 2009 a number of amendments had been made to the NGO laws, severely limiting the ability of NGOs to operate. Although State registration was not absolutely required by law, it was necessary in order for an NGO to obtain legal status and hence take actions with legal consequences, such as opening a bank account. The government interfered with the registration process by prolonging the application stage with repeated and arbitrary requests for clarification and additional documentation, as opposed to simply rejecting an application for registration. 109. In addition to imposing a legal requirement for NGOs to be registered in order to fully operate, legislation had also been adopted requiring NGOs to register grants they received with the State authorities. In response to the difficulties that human rights NGOs faced when trying to register as a legal entity, individuals managing unregistered NGOs had been receiving grant funds through another, registered NGO, or as a registered individual taxpayer. 110. The legislative amendments prohibited NGOs from receiving cash donations exceeding AZN 200 and introduced penalties of heavy fines and confiscation of property for violations of this rule. In addition, the amendments also established heavy fines for failures to register grant agreements with the Ministry of Justice within the required time period, as well as for failures to include required information about grants in financial reports to the authorities. As a direct consequence, since May 2014 the authorities had frozen the bank accounts of at least fifty independent organisations and, in many cases, those of their staff members, forcing them to suspend their activities. 111. According to the third parties, the government had recently adopted a strategy of applying vague and perplexing administrative requirements combined with certain criminal laws in order to imprison human rights defenders. While that strategy could be confusing when considered at face value, upon further scrutiny the government ’ s “legal theory” was exposed as follows. 112. Firstly, the authorities alleged, sometimes falsely, that an NGO had failed to comply with some legal provision concerning the requirement to register grants. In other cases, grants were indeed not registered, but this was as a result of government intransigence, where organisations had tried in earnest to comply with the requirements of the law, but the government had simply refused their applications either unfairly or illegally. An example of this was the case of Human Rights Club, the applicant ’ s NGO. 113. Secondly, instead of imposing a fine in accordance with the relevant legislation on NGOs and grants, the authorities charged the individual leader of an NGO with unrelated offences under the Criminal Code, such as illegal entrepreneurship, tax evasion and abuse of power. Thus, the authorities ’ strategy meant that a failure to comply with administrative obligations to register NGOs and their funding rendered the activity of the NGO “commercial”, thereby subjecting it to a different set of regulatory and tax requirements. The authorities then accused the NGO ’ s leadership of failing to comply with the commercial regulations and alleged associated criminal liability. The third parties argued that changing the tax regime from non-profit to commercial was not a matter within the authorities ’ discretion, even in the event of a failure to comply with some administrative requirements. 2. The Court ’ s assessment 114. Article 5 § 1 of the Convention contains an exhaustive list of permissible grounds for deprivation of liberty which must be interpreted strictly. A person may be detained under Article 5 § 1 (c) only in the context of criminal proceedings, for the purpose of bringing him before the competent legal authority on “reasonable suspicion” of “having committed an offence” (see Jėčius v. Lithuania, no. 34578/97, § 50, ECHR 2000 ‑ IX). 115. In order for an arrest on reasonable suspicion to be justified under Article 5 § 1 (c), it is not necessary for the police to have obtained sufficient evidence to bring charges, either at the point of arrest or while the applicant is in custody (see Brogan and Others v. the United Kingdom, 29 November 1988, § 53, Series A no. 145 ‑ B); nor is it necessary that the person detained should ultimately have been charged or taken before a court. The object of detention for questioning is to further a criminal investigation by confirming or discontinuing suspicions which provide the grounds for detention. 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). 116. However, the requirement that a suspicion must be based on reasonable grounds forms an essential part of the safeguard against arbitrary arrest and detention. The fact that a suspicion is held in good faith is insufficient. The words “reasonable suspicion” mean 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 Fox, Campbell and Hartley v. the United Kingdom, 30 August 1990, § 32, Series A no. 182). The length of the deprivation of liberty may also be material to the level of suspicion required (see Murray, cited above, § 56). 117. When assessing the “reasonableness” of a suspicion, the Court must be in a position to ascertain whether the essence of the safeguard afforded by Article 5 § 1 (c) has been secured. Consequently, a 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 (see Fox, Campbell and Hartley, cited above, § 34 in fine ). 118. Apart from its factual aspect, which is most often in issue, the existence of such a suspicion additionally requires that the facts relied on can reasonably be considered criminal behaviour under domestic law. Thus, clearly there could not be a “reasonable suspicion” if the acts held against a detained person did not constitute an offence at the time they were committed (see Włoch v. Poland, no. 27785/95, §§ 108 - 09, ECHR 2000 ‑ XI). 119. The Court notes that the applicant in the present case complained of the lack of “reasonable” suspicion against him throughout the entire period of his pre-trial detention, including both during the initial period following his arrest and the subsequent periods when his remand in custody was authorised and extended by court orders. In this connection, the Court reiterates that the persistence of reasonable suspicion that an arrested person has committed an offence is a prerequisite for the lawfulness of his continued detention (see, among many other authorities, Stögmüller v. Austria, 10 November 1969, p. 40, § 4, Series A no. 9, and McKay v. the United Kingdom [GC], no. 543/03, § 44, ECHR 2006 ‑ X). Accordingly, while reasonable suspicion must exist at the time of the arrest and initial detention, in cases of prolonged detention it must also be shown that the suspicion persisted and remained “reasonable” throughout the detention (see Ilgar Mammadov v. Azerbaijan, no. 15172/13, § 90, 22 May 2014). 120. The Court has to have regard to all the relevant circumstances in order to be satisfied that objective information existed showing that the suspicion against the applicant was “reasonable”. In this connection, at the outset, the Court considers it necessary to have regard to the general context of the facts of this particular case. Having assessed the submissions by the third parties (see paragraphs 99-113 above) and the opinions of the Venice Commission (see paragraphs 8 1-82 above), the Court agrees that in recent years the legislative environment regarding the operation of non ‑ governmental, non-commercial organisations, including the regulation of matters relating to their State registration, funding and reporting requirements, has grown increasingly harsh and restrictive. A number of recent amendments to various legislative instruments introduced additional registration and reporting procedures and heavy penalties. There have been long - standing problems with the State registration of NGOs in Azerbaijan ( in this connection, see also Ramazanova and Others v. Azerbaijan, no. 44363/02, 1 February 2007; Nasibova v. Azerbaijan, no. 4307/04, 18 October 2007; Ismayilov v. Azerbaijan, no. 4439/04, 17 January 2008; and Aliyev and Others v. Azerbaijan, no. 28736/05, 18 December 2008, in which cases the Court found violations of Article 11 of the Convention ). Even following the reforms to the registration procedures regulated by the Law on State Registration, the Court has been receiving new applications concerning allegedly arbitrary delays in State registration of NGOs. Indeed, one of those applications was lodged by Human Rights Club, the NGO founded by the applicant, and has been communicated to the respondent Government (see application no. 27309/14 ). Furthermore, the above ‑ mentioned sources were of the view that the new onerous regulations, coupled with the reportedly intransigent and arbitrary manner in which they were applied by the authorities, made it increasingly difficult for NGOs to operate. The Court takes note of the third parties ’ argument that the above circumstances drove a number of NGOs to operate on the fringes of the law in order to continue securing funding for their activities. While the Court is not called upon to give a judicial assessment of the general situation outlined above in the context of the present complaint, it nevertheless considers that this background information is extremely relevant to the present case and calls for particularly close scrutiny of the facts giving rise to the charges brought against the applicant. 121. Turning to the circumstances of the present case, the Court notes that the description of the three original charges brought against the applicant on 2 August 2014 lacked a certain level of coherence, order and clarity that could be expected of a document of this nature. In particular, the description consisted of a single sentence spanning about one page of printed text. It can be discerned from that description that the applicant was accused of operating an NGO lacking State registration and receiving a number of grants during the period between 2010 and 2014 which he had failed to register with the Ministry of Justice as required by law. The financial and other activities involving the grant money were considered “illegal entrepreneurial activity” because the grants had not been registered. Furthermore, all of the grant money received during that period (AZN 147,900.85, later adjusted to AZN 150,170.62) was deemed to be “profit” acquired by the applicant from this illegal entrepreneurial activity, on which he had allegedly failed to pay simplified tax at the rate of 4% under Articles 218, 219 and 220 of the Tax Code and in the amount of AZN 6,162.24 (later adjusted to AZN 6,257.11), as such committing a criminal offence of tax evasion. The above factual information was also the basis for an accusation that the applicant had committed a criminal offence of abuse of power. 122. It can be deduced from the above that all the misconduct attributed to the applicant essentially stemmed from the fact that he had operated an NGO lacking State registration and had failed to register the grants received. No other information or evidence supporting the suspicion was shown to exist, either at the time he was accused or throughout the entire period of pre-trial detention. For the reasons set out below, the Court considers that the above facts relied on by the prosecuting authorities cannot be considered sufficient to satisfy an objective observer that the applicant might have committed the offences he was charged with. 123. The Court notes that, in contrast to commercial organisations, the domestic legislation did not prohibit the functioning of non-commercial organisations (NGOs) in the absence of State registration (see paragraph 6 2 above). This has previously been confirmed by the Government in their submissions before the Court in other cases (see Ramazanova and Others, cited above, § 48; Nasibova, cited above, § 24; Ismayilov, cited above, § 44; and Aliyev and Others, cited above, § 28 ). However, in practice, NGOs faced difficulties in functioning properly, as they could not, inter alia, open bank accounts or receive funding as a legal entity. It is specifically owing to these difficulties that the applicant conducted the impugned activities in his individual capacity. 124. As for the applicant ’ s failure to register the grants he received in his individual capacity, the Court notes his submission that the reason why he had not registered the grants was that, before February 2014, a procedure for registering grants received by individuals had not been established. The Government did not attempt to refute this claim or submit any information to the contrary. 125. However, even assuming that such a procedure had been in place and that the applicant had failed to comply with it, the Court remains unconvinced that such misconduct could have given rise to a reasonable suspicion that he had committed a criminal offence. Neither the domestic authorities nor the Government were able to refer to any provision of the Criminal Code which specifically criminalises a failure to register grants. Instead, rather inexplicably, the prosecuting authority claimed that the alleged failure by the applicant to register the grants should result in characterisation of the use of those grants as illegal commercial (“entrepreneurial”) activity. However, as discussed below, no lawful or factual basis for that claim has been demonstrated. 126. The Court notes that the domestic law provided clear definitions of commercial and non-commercial activities, with the differentiating factor being whether or not the purpose of the activities was the generation of profit (see paragraphs 57 and 74-76 above). Non-commercial activity was not subject to profit tax or value-added tax (see paragraphs 58 - 59 ). 127. The applicant received a number of grants as an individual recipient, which was allowed by law. The money was received on the basis of the grant agreements indicating the specific non-commercial purposes on which the funds were to be spent, as required by the Law on Grants (see paragraphs 68 -7 0 above ). Upon the completion of various projects, the relevant donors confirmed that the money had been spent as designated in the relevant agreements (see paragraphs 3 2-34 above). These circumstances create a clear presumption that the applicant was engaging in non ‑ commercial activities which were not prohibited by law and were not aimed at generating profit. 128. It was never claimed that the actual purposes for which the grants had been allocated were illegal, or that any of the actual activities conducted by the applicant using grant funds had been illegal. The Court cannot accept the Government ’ s argument that a mere failure to register a grant implied that the money was “received illegally”. Having regard to the relevant legislation (see paragraphs 69 and 7 1 above ), the Court notes that the requirement to submit grants for registration to the Ministry of Justice was merely a reporting requirement, and not a prerequisite for legal characterisation of the received financial assistance as a “grant”. Failure to meet this reporting requirement was an administrative offence specifically proscribed by Article 223-1.1 of the CAO and punishable by a fine ( only after February 2014 in the case of individual recipients). Non-compliance with this reporting requirement had no effect on the nature of a grant agreement defined and regulated by Articles 1.1 and 4.1 of the Law on Grants (see paragraphs 68 - 69 above), or on the characterisation of the activities for which the grant was used as non-commercial. 129. However, from the documents in the case file it appears that, apart from relying on the applicant ’ s alleged failure to comply with the reporting requirement to register the grants, which in itself was not criminalised under the domestic law, the prosecuting authorities never demonstrated the existence of any information or evidence showing that the applicant might have used the money for generating profit or for purposes other than those indicated in the grant agreements, or that the purposes indicated in the grant agreements were both commercial and illegal. Likewise, the Government failed to demonstrate that any other witness statements, documents or other evidence or information existed which could serve as the basis for the suspicion that the applicant had engaged in criminal activities. Furthermore, it has not been demonstrated that any such evidence was ever presented by the prosecuting authorities to the domestic courts which ruled on the applicant ’ s continued detention (compare Ilgar Mammadov, cited above, §§ 96-99). In this regard, the Court also takes note of the decision of the Plenum of the Supreme Court of 3 November 2009. That decision required domestic courts to subject prosecuting authorities ’ applications for remand in custody to close scrutiny and to verify the existence of a suspicion against the accused by making use of their power under Article 447.5 of the CCrP to request and review the “initial evidence” in the prosecution ’ s possession (see paragraph 8 0 above). However, in the present case, the above instructions were not taken into account (compare Ilgar Mammadov, cited above, § 97). 130. In such circumstances, the Court finds that the applicant could not have been reasonably suspected of having committed the criminal offence of “illegal entrepreneurship” under Article 192.2.2 of the Criminal Code, because there were no facts, information or evidence showing that he had engaged in commercial activity or the offence of “tax evasion” under Article 213 of the Criminal Code, as in the absence of such commercial activity there could be no taxable profit under the simplified regime. Furthermore, the above-mentioned facts were not sufficient to give rise to a suspicion that the applicant had sought to “obtain unlawful advantage for himself or for third parties ”, which was one of the constituent elements of the criminal offence of “abuse of power” under Article 308 of the Criminal Code (compare, mutatis mutandis, Lukanov v. Bulgaria, 20 March 1997, § 44, Reports of Judgments and Decisions 1997 ‑ II). 131. As for the additional charges under Articles 179.3.2 and 313 of the Criminal Code, brought against the applicant on 12 December 2014, the Court notes that they were brought after the latest domestic court order of 23 October 2014 extending the applicant ’ s pre-trial detention. As such, all previous decisions ordering and extending the applicant ’ s pre-trial detention had been based solely on the original charges under Articles 192.2.2, 213 and 308 of the Criminal Code, and therefore the new charges were of no significance to the assessment of the reasonableness of the suspicion underpinning the applicant ’ s detention during the period falling within the scope of the present case, and the Government have not expressly argued otherwise. 132. In any event, the Court notes that, as with the original charges, the description of the new charges essentially remained the same and lacked a sufficient level of coherence. There was additional information regarding alleged deficiencies in some service contracts concluded by the applicant and amounts paid under these contracts. Presumably, this was the basis for the suspicion that the applicant had committed the offence of “forgery by an official” under Article 313 of the Criminal Code. However, the Government again failed to produce before the Court any specific evidence or information which could constitute the basis for the prosecuting authorities ’ suspicions in this regard. As for the charge of embezzlement under Article 179.3.2 of the Criminal Code, the Court cannot characterise it as anything other than spurious, given that the money was given to the applicant voluntarily by donors under grant agreements and that the donors expressed complete confidence that the money had been spent properly for the purposes for which it had been allocated. Taking into account the manifest unreasonableness of the original three charges against the applicant (see paragraph 13 0 above) and the heightened level of scrutiny required by the specific context of the present case (see paragraph 12 0 above), the Court considers that the respondent Government also failed to satisfy the Court that the applicant was reasonably suspected of having committed the alleged offences under Articles 179.3.2 and 313 of the Criminal Code. 133. The Court is mindful of the fact that the applicant ’ s case has been taken to trial. That, however, does not affect the Court ’ s findings in connection with the present complaint, where it is called upon to consider whether the deprivation of the applicant ’ s liberty during the pre ‑ trial period was justified on the basis of the information or facts available at the relevant time. In this respect, having regard to the above analysis, the Court finds that the material put before it does not meet the minimum standard set by Article 5 § 1 (c) of the Convention for the reasonableness of a suspicion required for an individual ’ s arrest and continued detention. Accordingly, during the period the Court is considering in the present case, the applicant was deprived of his liberty in the absence of a “reasonable suspicion” of his having committed a criminal offence. 134. Accordingly, there has been a violation of Article 5 § 1 of the Convention. 135. The above finding makes it redundant to assess whether the reasons given by the domestic courts for the applicant ’ s continued detention were based on “relevant and sufficient” grounds, as required by Article 5 § 3 of the Convention. Therefore, the Court does not consider it necessary to examine separately any issues under Article 5 § 3 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION 136. The applicant complained that the domestic courts had not properly assessed the arguments the defence had put forward in favour of his release. He relied on Article 5 § 4 of the Convention, which 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.” A. Admissibility 137. The Court considers 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 1. The parties ’ submissions 138. The applicant reiterated his complaint and maintained that the courts had failed to respond to any of the relevant arguments against detention that he had repeatedly raised before them. 139. The Government argued that the applicant and his lawyers had been heard by the domestic judges and had been able to put questions to the prosecuting authority during the court hearings. Nothing in the case file indicated that the proceedings had not been adversarial or had been otherwise unfair. Even if the applicant ’ s arguments had not been addressed in a detailed manner in the judicial decisions, the material in the case file, including records of court hearings, showed that the judges had heard the applicant ’ s arguments and had taken decisions they considered to be the most appropriate in the circumstances. 2. The Court ’ s assessment 140. 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 consider 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 Brogan and Others, cited above, § 65, and Butkevičius v. Lithuania, no. 48297/99, § 43, ECHR 2002 ‑ II (extracts)). 141. 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, § 203-04, ECHR 2009, with further references). Furthermore, while Article 5 § 4 of the Convention does not impose an obligation to address every argument contained in a detainee ’ s submissions, the judge considering submissions against pre-trial detention must take into account concrete facts which are referred to by the detainee and are capable of casting doubt on the existence of those conditions essential for the “lawfulness” – for Convention purposes – of the deprivation of liberty (see Nikolova v. Bulgaria [GC], no. 31195/96, § 61, ECHR 1999 ‑ II). 142. Article 5 § 4 guarantees no right, as such, to an appeal against a court decision ordering or extending detention, and does not compel States to set up a second level of jurisdiction to consider applications for release, but the intervention of a judicial body of at least one level of jurisdiction must comply with the guarantees of Article 5 § 4. Where domestic law provides for a system of appeal, the appellate body must also comply with Article 5 § 4 (see Farhad Aliyev, cited above, § 204, with further references). In the present case, the issues regarding ordering and extending the applicant ’ s detention and his applications for release from detention were decided on each occasion by courts at two levels of jurisdiction, namely the Nasimi District Court as the first - instance court and the Baku Court of Appeal as the appellate court. 143. As the Court has observed above, the domestic courts in the present case consistently failed to verify the reasonableness of the suspicion underpinning the applicant ’ s arrest (see paragraph 1 29 above). In their decisions, the domestic courts limited themselves to copying the prosecution ’ s written submissions and using short, vague and stereotyped formulae for rejecting the applicant ’ s complaints as unsubstantiated. In essence, the domestic courts limited their role to one of automatic endorsement of the prosecution ’ s applications, and they cannot be considered to have conducted a genuine review of the “lawfulness” of the applicant ’ s detention. That is contrary not only to the requirements of Article 5 § 4, but also to those of the domestic law as interpreted and clarified by the Plenum of the Supreme Court (see paragraphs 79-80 above). 144. 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. Accordingly, there has been a violation of Article 5 § 4 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 18 OF THE CONVENTION, TAKEN IN CONJUNCTION WITH ARTICLE 5 OF THE CONVENTION 145. The applicant complained under Article 18 of the Convention that his Convention rights had been restricted for purposes other than those prescribed in the Convention. In particular, his arrest and detention had had the purpose of punishing him as a government critic, silencing him as an NGO activist and human rights defender, discouraging others from such activities, and paralysing civil society in the country. Article 18 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. Admissibility 146. The Court notes that this complaint 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. The parties ’ submissions (a) The applicant 147. The applicant maintained that the restrictions in the present case had been applied with the intention of punishing and silencing him, thereby neutralising him as a human rights defender and preventing him from continuing human rights activities. He argued that the totality of the evidence in the present case was sufficient to rebut the general presumption that public authorities in member States had acted in good faith. The facts of the case demonstrated convincingly that the real aim of the authorities had not been the same as that proclaimed. 148. The applicant submitted that he was an outspoken critic of the government and that his activities had aimed to hold the government accountable for human rights violations and organise human rights campaigns calling for improvement of the general situation, in particular with regard to the defence of political prisoners ’ rights. His work had had a direct impact on the public, raising awareness of politically motivated prosecutions and exposing violations of fundamental freedoms such as freedom of expression, freedom of association, property rights and other issues directly affecting the public. 149. The applicant argued that the timing of his detention indicated that the detention had been linked not only to his general activities as a human rights defender, but also to his role as a keynote speaker at the PACE event on 24 June 2014, where he had spoken about human rights issues in Azerbaijan. Moreover, his detention and prosecution could not be viewed in isolation. It was part of a targeted repressive campaign against human rights defenders and NGOs, which included disparaging public statements by various high-ranking officials. The very public support from a number of State officials for his prosecution and the prosecution of others indicated that the measures taken by the authorities had political motives. State officials of the highest ranks persistently labelled all NGOs receiving grants from abroad as traitors and a “fifth column”. 150. In this context, it was also important to consider that, before the wave of arrests of human rights defenders, a series of restrictive amendments to the NGO legislation had been adopted, de facto hindering the effective operation of NGOs in the country. (b) The Government 151. The Government argued that, as in the applicants ’ allegations in Khodorkovskiy v. Russia (no. 5829/04, 31 May 2011) and Khodorkovskiy and Lebedev v. Russia (nos. 11082/06 and 13772/05, 25 July 2013), the applicant ’ s allegations in the present case were too wide and far-reaching. He did not complain of an isolated incident, but tried to demonstrate that the whole legal machinery of the respondent State had been misused ab initio, and that from beginning to end the authorities had been acting in bad faith and with blatant disregard for the Convention. In essence, the applicant tried to persuade the Court that everything in his case was contrary to the Convention, and that the criminal proceedings against him were therefore invalid. That allegation was a serious one, because it assailed the general presumption of good faith on the part of the public authorities and required particularly weighty evidence in support. None of the accusations against the applicant were political. He had not been an opposition leader or a public official. The acts which had been imputed to him were not related to his participation in political life, real or imaginary – he had been prosecuted for common criminal offences, such as tax evasion, fraud, and so on. The Government submitted that the restrictions imposed by the State in the present case pursuant to Article 5 of the Convention had not been applied for any purpose other than one envisaged by that provision, and strictly for the proper investigation of serious criminal offences allegedly committed by the applicant. (c) The third parties 152. Submissions by the third parties, which pertain to both the complaints under Articles 5 and 18 of the Convention, are summarised in paragraphs 99-113 above. 2. The Court ’ s assessment 153. The Court emphasises that Article 18 of the Convention does not have an autonomous role. It can only be applied in conjunction with other Articles of the Convention (see Gusinskiy v. Russia, no. 70276/01, § 75, ECHR 2004 ‑ IV). As the Court has previously held in its case-law, 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 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 which could 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 (see Khodorkovskiy, cited above, § 255 ). 154. When an allegation is made under Article 18 of the Convention the Court applies a very exacting standard of proof. As a consequence, there are only a few cases where a breach of that Convention provision has been found. Thus, in Gusinskiy (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. It based its findings on a signed agreement between the detainee and a federal Minister for the Press, from which it was clear that the applicant ’ s detention had been imposed 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 where the applicant ’ s arrest was obviously linked to an application pending before the Court. In Lutsenko v. Ukraine (no. 6492/11, §§ 108-09, 3 July 2012) the prosecuting authorities seeking the applicant ’ s arrest explicitly indicated that the applicant ’ s communication with the media was one of the grounds for his arrest, such reasoning clearly demonstrating that his arrest was an attempt to punish him for publicly disagreeing with accusations against him. In Tymoshenko v. Ukraine (no. 49872/11, § 299, 30 April 2013) the reasoning formally advanced by the authorities suggested that the actual purpose of the detention was to punish the applicant for a lack of respect towards the court, which it was claimed she had been demonstrating by her behaviour during judicial proceedings. Furthermore, both the Lutsenko and Tymoshenko cases were similar in their circumstances, in that both applicants – who were former high-ranking government officials and leaders of opposition parties – were, soon after the change of power, accused of abuse of power, and the authorities ’ actions against them were considered by the public to be part of the politically motivated prosecution of opposition leaders in Ukraine. However, in both cases, the Court chose to look at the matter separately from the general context of the allegedly politically motivated prosecution, because in each case it was possible to discern other specific features (described above), which led to a finding of a breach of Article 18 (see Lutsenko, cited above, § 108, and Tymoshenko, cited above, §§ 296 and 298-99). In Ilgar Mammadov (cited above, §§ 142 ‑ 43 ), the Court found that the standard of proof was satisfied because the combination of the relevant case-specific facts clearly demonstrated that the actual purpose of the measures taken by the authorities had been to silence or punish the applicant for criticising the government and attempting to disseminate what he believed was true information that the government were trying to hide. 155. The Court notes that the applicant ’ s arrest and prosecution, together with the cases of other human rights defenders and government critics, has been the subject of heavy international criticism. However, the Court has previously stated that the political process and adjudicative process are fundamentally different, and therefore it must base its decision on “evidence in the legal sense” and its own assessment of the specific relevant facts (see, mutatis mutandis, Khodorkovskiy, cited above, § 259). It considers that the circumstances of the present case suggest that the applicant ’ s arrest and detention had distinguishable features which allow the Court to analyse the situation independently of the various opinions voiced in connection with this case. 156. The Court has found above that the charges against the applicant were not based on a “reasonable suspicion” within the meaning of Article 5 § 1 (c) of the Convention (contrast Khodorkovskiy, cited above, § 258, and compare Lutsenko, cited above, § 108, and Ilgar Mammadov, § 141 ). It has not been demonstrated that the facts held against the applicant could have given rise to legitimately serious criminal accusations or that the case against him had a “healthy core” (contrast Khodorkovskiy and Lebedev, cited above, § 908). As noted above, the applicant was charged with serious criminal offences whose core constituent elements could not reasonably be found on the existing facts. 157. Thus, the conclusion to be drawn from this finding is that the assumption that the authorities acted in good faith was undermined. However, that conclusion in itself is not sufficient to assume that Article 18 was breached, and it remains to be seen whether there is proof that the authorities ’ actions were actually driven by improper reasons. 158. The Court considers that, depending on the circumstances of the case, improper reasons cannot always be proven by pointing to a particularly inculpatory piece of evidence which clearly reveals an actual reason (for example, a written document, as in the case of Gusinskiy ) or a specific isolated incident. In this case, as in Ilgar Mammadov (cited above), the Court considers that it can be established to a sufficient degree that proof of improper reasons follows the combination of relevant case-specific facts. In particular, the Court notes the following. 159. Firstly, the general circumstances to which it has had regard in connection with its assessment of the complaint under Article 5 § 1 (see paragraph 12 0 above) are equally relevant in the context of the present complaint. In the Court ’ s view, the general context of the increasingly harsh and restrictive legislative regulation of NGO activity and funding cannot be simply ignored in a case like the present one, where such a situation has led to an NGO activist being prosecuted for an alleged failure to comply with legal formalities of an administrative nature while carrying out his work. 160. Secondly, the Court takes note of the numerous statements by high ‑ ranking officials and articles published in the pro- government media, where local NGOs and their leaders, including the applicant, were consistently accused of being a “fifth column” for foreign interests, national traitors, foreign agents, and so on (see paragraphs 35 -4 2 above). They were harshly criticised for contributing to a negative image of the country abroad by reporting on the human rights situation in the country. What was held against them in these statements was not simply an alleged breach of domestic legislation on NGOs and grants, but their activity itself. 161. Thirdly, the applicant ’ s situation cannot be viewed in isolation. Several notable human rights activists who have cooperated with international organisations for the protection of human rights, including, most notably, the Council of Europe, were similarly arrested and charged with serious criminal offences entailing heavy imprisonment sentences. These facts, taken together with the above-mentioned statements by the country ’ s officials, support the applicant ’ s and the third parties ’ argument that his arrest and detention were part of a larger campaign to “ crack down on human rights defenders in Azerbaijan, which had intensified over the summer of 2014” (see paragraph 104 above). 162. The totality of the above circumstances indicates that the actual purpose of the impugned measures was to silence and punish the applicant for his activities in the area of human rights. In the light of these considerations, the Court finds that the restriction of the applicant ’ s liberty was imposed for purposes other than bringing him before a competent legal authority on reasonable suspicion of having committed an offence, as prescribed by Article 5 § 1 (c) of the Convention. 163. The Court considers this sufficient basis for finding a violation of Article 18 of the Convention, taken in conjunction with Article 5. IV. ALLEGED VIOLATION OF ARTICLE 11 OF THE CONVENTION 164. The applicant further complained under Article 11 that his right to freedom of association had been violated because his arrest and detention had been intended to silence him as an NGO activist. Article 11 of the Convention provides: “ 1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. 2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.” A. The parties ’ submissions 1. The Government 165. As to the admissibility of the complaint, the Government argued that the applicant had failed to raise the issue of the alleged violation of his rights under Article 11 of the Convention before the domestic courts, and therefore that the complaint should be declared inadmissible for non ‑ exhaustion of domestic remedies. 166. As to the merits of the complaint, the Government admitted that the applicant ’ s arrest had been connected to his alleged illegal activities as a “member of an NGO”, and that therefore there had been interference with the applicant ’ s right as guaranteed under Article 11 of the Convention. However, such interference was prescribed by the relevant provisions of the Criminal Code; pursued the legitimate aims of public safety, prevention of disorder and protection of the rights of others; and was also necessary in a democratic society because financial and monetary policy was one of the main functions of the State, and NGO activities could not serve as a shelter for illegal financial flows and tax evasion. 2. The applicant 167. As to the admissibility of the complaint, the applicant submitted that, although he had not relied expressly on Article 11 of the Convention before the domestic courts, he had submitted in his appeals that his detention had amounted to a punishment for engaging in activities which were protected by the Constitution. 168. As to the merits of the complaint, the applicant argued that his detention constituted an interference with his rights under Article 11 § 1 of the Convention, and that this interference had not been justified under Article 11 § 2 of the Convention. B. The Court ’ s assessment 169. In respect of the Government ’ s objection concerning non ‑ exhaustion of domestic remedies, the Court notes the specific nature of the present complaint, where the applicant alleged that, in addition to being in breach of Articles 5 and 18 of the Convention, his detention had also amounted to a violation of Article 11 in the particular factual context of the case. The Court notes that the applicant had challenged the lawfulness and justification of his detention before the domestic courts and had exhausted the remedies available in that regard. The Government did not specify what other remedy had been available to the applicant capable of providing redress in respect of the matters complained of. For these reasons, the Court rejects the Government ’ s objection and finds that this complaint is linked to those examined above and must therefore likewise be declared admissible. 170. However, having regard to its findings under Article 5 §§ 1 and 4 of the Convention and Article 18 of the Convention, as well as the fact that a separate application concerning the authorities ’ refusal to register the applicant ’ s NGO is pending before the Court (application no. 27309/14 ), the Court considers that it is not necessary to examine whether there has been a violation of Article 11 of the Convention in this case. V. ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION 171. In January 2015 the applicant introduced a new complaint, arguing that the suspension of his representative ’ s licence to practise law and the impossibility of meeting his representative in the prison had amounted to a breach of his right of individual petition under Article 34 of the Convention, which reads: “The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.” A. The parties ’ submissions 1. The applicant 172. The applicant maintained his complaint, pointing out that the suspension of his representative ’ s licence to practise law had been politically motivated. The aim of the measure had been to silence Mr Bagirov as an independent advocate, and was part of a general campaign to crack down on civil society in the country. 173. The applicant also submitted that his representative had been refused permission to meet with him in the prison. The impossibility of meeting his representative had amounted to an infringement of the effective exercise of his right of individual petition under Article 34 of the Convention. The applicant also argued that his representative had submitted a valid authority form to the Court and to the domestic authorities. 2. The Government 174. The Government submitted that the applicant ’ s right of individual petition under Article 34 had not been infringed. They pointed out that the suspension of the applicant ’ s representative ’ s licence to practise law had not related to any statements or submissions the representative had made within the present proceedings. 175. As regards the applicant ’ s inability to meet his representative in prison, the Government submitted that the applicant ’ s representative had failed to submit a valid authority form to the Court and to the prison authorities. They further submitted that the fact that the applicant ’ s representative had been able to submit to the Court very detailed and lengthy observations should be taken into account when considering the applicant ’ s allegation that his right of individual application had been breached. The Government lastly pointed out that, although Mr Bagirov ’ s licence had been suspended on 10 December 2014, they had not objected to him representing the applicant before the Court. Therefore, this fact confirmed that they had no intention of hindering the effective exercise of the applicant ’ s right of individual petition under Article 34 of the Convention. B. The Court ’ s assessment 176. According to the Court ’ s case-law, a complaint under Article 34 of the Convention is of a procedural nature and therefore does not give rise to any issue of admissibility under the Convention (see Ergi v. Turkey, 28 July 1998, § 105, Reports 1998 ‑ IV, and Cooke v. Austria, no. 25878/94, § 46, 8 February 2000). 177. It is of utmost importance for the effective operation of the system of individual petition guaranteed by Article 34 of the Convention that applicants or potential applicants should be able to communicate freely with the Court without being subjected to any form of pressure from the authorities to withdraw or modify their complaints (see Akdivar and Others v. Turkey, 16 September 1996, § 105, Reports 1996 ‑ IV, and Kurt v. Turkey, 25 May 1998, § 159, Reports 1998 ‑ III). In this context, “any form of pressure” includes not only direct coercion and flagrant acts of intimidation, but also other improper indirect acts or communication designed to dissuade or discourage applicants from pursuing a Convention complaint, or having a “chilling effect” on the exercise of the right of individual petition of applicants and their representatives (see Kurt, cited above, §§ 160 and 164; Tanrıkulu v. Turkey [GC], no. 23763/94, § 130, ECHR 1999 ‑ IV; and Fedotova v. Russia, no. 73225/01, § 48, 13 April 2006). 178. The fact that an individual has managed to pursue his application does not prevent an issue arising under Article 34. Should a government ’ s actions make it more difficult for an individual to exercise his right of petition, this amounts to “hindering” his rights under Article 34 (see Akdivar and Others, cited above, § 105). The intentions or reasons underlying the acts or omissions in question are of little relevance when assessing whether Article 34 of the Convention was complied with; what matters is whether the situation created as a result of the authorities ’ act or omission conforms to Article 34 (see Paladi v. Moldova [GC], no. 39806/05, § 87, 10 March 2009). Moreover, the Court must assess the vulnerability of the complainant and the risk of his being influenced by the authorities. An applicant ’ s position might be particularly vulnerable when he is held in custody with limited contact with his family or the outside world (see Cotleţ v. Romania, no. 38565/97, § 71, 3 June 2003). 179. Turning to the circumstances of the present case, the Court observes at the outset that the applicant raised two complaints under Article 34 of the Convention. Firstly, he complained that the suspension of his legal representative ’ s licence to practise had related to the latter ’ s involvement in the protection of human rights as an independent advocate. Secondly, he complained that the impossibility of meeting his representative in prison had amounted to a violation of the respondent State ’ s obligation not to hinder the effective exercise of his right of individual petition. The Court will examine the latter complaint first. 180. In the present case it is not in dispute that, following the suspension of his licence to practise law on 10 December 2014, Mr Bagirov was refused permission to meet with the applicant. In this connection, the Court observes at the outset that, although the Government argued that Mr Bagirov had failed to present a valid authority form to the Court and the domestic authorities, it is apparent from the documents in the case file that on 8 October 2014 the applicant signed the authority form as part of the application form, a copy of which was transmitted to the Government by the Court when the present application was communicated. As regards Mr Bagirov ’ s alleged failure to submit a valid power of attorney to the domestic authorities, the Court observes that when the domestic authorities refused him permission to meet with the applicant they relied not on the absence of his power of attorney, but on the suspension of his licence to practise law of 10 December 2014 (see paragraph 49 above). 181. Therefore, the issue before the Court is whether the impediments to communication between the applicant and his representative put in place by the prison authorities on the grounds that Mr Bagirov ’ s licence to practise had been suspended amounted to a violation of the respondent State ’ s obligation not to hinder the effective exercise of the right of petition under Article 34 of the Convention. 182. In this connection, the Court observes that in the past it has found violations of the right of petition under Article 34 of the Convention in circumstances where an applicant in detention had been prevented from communicating freely with his representative before the Court. In particular, the Court considered that Article 34 of the Convention had been breached where : an applicant had been unable to discuss issues concerning an application before the Court with his representative without their being separated by a glass partition (see Cebotari, cited above, §§ 58-68, 13 November 2007); an applicant had been unable to communicate with his representative before the Court during his treatment in hospital (see Shtukaturov v. Russia, no. 44009/05, § 140, ECHR 2008); and where an applicant ’ s contact with his representative before the Court had been restricted on the grounds that the representative was not a professional advocate and did not belong to any Bar association (see Zakharkin v. Russia, no. 1555/04, §§ 152-60, 10 June 2010). The Court has, however, accepted that compliance by a representative with certain formal requirements might be necessary before obtaining access to a detainee, for instance for security reasons or in order to prevent collusion or some action to pervert the course of the investigation or justice (see Melnikov v. Russia, no. 23610/03, § 96, 14 January 2010). At the same time, excessive formalities in such matters, such as those that could de facto prevent a prospective applicant from effectively enjoying his right of individual petition, have been found to be unacceptable. By contrast, where the domestic formalities were easy to comply with, no issue arose under Article 34 (see Lebedev v. Russia, no. 4493/04, § 119, 25 October 2007). 183. The Court observes that, in the present case, although it was clear that Mr Bagirov ’ s request for a meeting with the applicant related to the applicant ’ s pending case before the Court (see paragraph 47 above), the domestic authorities did not allow such a meeting. The only reason given for refusing to allow the applicant ’ s representative to meet him was that his licence to practise law had been suspended on 10 December 2014 (see paragraph 49 above). However, the Court notes that the suspension of Mr Bagirov ’ s licence, which under domestic law prevented him from representing applicants in domestic criminal proceedings, could not be interpreted as a measure limiting his rights in the representation of applicants before the Court. Given that permission to represent an applicant may be granted to a non-advocate under Rule 36 § 4 (a) of the Rules of Court, Contracting States must ensure that non-advocate representatives are allowed to visit detainees who have lodged or intend to lodge an application with the Court under the same conditions as advocates (see Zakharkin, cited above, § 157). 184. The Court further observes that, although the domestic law does not provide for any special rules regarding detainees receiving visits from their representatives before the Court, it does not limit such visits to only those from professional advocates belonging to the Bar Association. In particular, the applicable domestic law specifically provides that detainees also have the right to meet with persons other than advocates who are authorised to provide them with legal assistance (see paragraph 77 above). 185. As regards the Government ’ s argument that the applicant ’ s representative was able to submit to the Court very detailed and lengthy observations, and that this fact should be taken into account when considering the complaint, the Court notes that a failure by the respondent Government to comply with their procedural obligation under Article 34 of the Convention does not necessarily require that the alleged interference should have actually restricted, or had any appreciable impact on, the exercise of the right of individual petition. The Contracting Party ’ s procedural obligations under Articles 34 and 38 of the Convention must be enforced irrespective of the eventual outcome of the proceedings, and in such a manner as to avoid any actual or potential chilling effect on the applicants or their representatives (see Janowiec and Others v. Russia [GC], nos. 55508/07 and 29520/09, § 209, ECHR 2013). 186. In view of the foregoing, the Court considers that the respondent State has failed to comply with its obligations under Article 34 of the Convention. 187. Having reached that conclusion, and in order to avoid prejudging any issues which might be raised in application no. 28198/15 lodged by Mr Bagirov himself concerning the suspension of his licence to practice law, the Court considers that it is not necessary to further examine the applicant ’ s argument that the suspension of Mr Bagirov ’ s licence was part of a general crackdown campaign against human rights lawyers and activists. VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION 188. 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 189. The applicant claimed 10,000 euros (EUR) in respect of lost earnings from three projects funded by grants received just before his arrest, and AZN 2,274.61 for expenses borne by his family to buy food parcels for him while in detention. 190. The applicant further claimed EUR 20,000 in respect of non ‑ pecuniary damage caused by serious mental suffering attributable to the arbitrary and unlawful conduct of the domestic authorities. 191. The Government contested the claim in respect of pecuniary damage as unsubstantiated and lacking a causal link with the alleged violations. They also contested the claim in respect of non-pecuniary damage, noting that an element of suffering was inevitably associated with deprivation of liberty. 192. As to the part of the claim concerning expenses relating to the food parcels, the Court does not discern any causal link between the violations found and the damage alleged; it therefore rejects this part of the claim. 193. As to the part of the claim concerning the loss of earnings, the Court notes that the applicant submitted a number of documents in support of this part of the claim. However, the information and material submitted are not sufficient for precise calculation of the various components of the alleged damage. Nevertheless, based on that material, the Court accepts that the applicant did suffer, on account of his unjustified detention, a loss of opportunities, which justifies an award of just satisfaction in the present case (compare, mutatis mutandis, Lechner and Hess v. Austria, 23 April 1987, § 64, Series A no. 118; Martins Moreira v. Portugal, 26 October 1988, §§ 65-67, Series A no. 143; and Schüth v. Germany (just satisfaction), no. 1620/03, §§ 23-24, 28 June 2012). 194. The Court further considers that the applicant has suffered non ‑ pecuniary damage which cannot be compensated for solely by the finding of violations, and that compensation must therefore be awarded. 195. As the above-mentioned factors do not lend themselves to precise quantification, the Court has assessed both claims as a whole and, as required by Article 41, on an equitable basis. It awards the applicant the global sum of EUR 25,000 in respect of both pecuniary and non-pecuniary damage. B. Costs and expenses 196. The applicant also claimed AZN 1,400 for legal fees incurred before the domestic courts, EUR 5,000 for legal fees incurred before the Court (including EUR 3,000 for Mr K. Bagirov ’ s legal services and EUR 2,000 for Ms R. Remezaite ’ s legal services), AZN 381.9 for notary fees and postal expenses, and EUR 1,273 for translation costs. 197. The Government argued that the claims in respect of legal fees had not been properly substantiated by relevant supporting documents and were excessive. They further argued that the documents submitted in support of the claim in respect of translation costs were not credible. 198. 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 in respect of notary fees and postal fees for lack of proper substantiation and itemisation, and considers it reasonable to award the sum of EUR 1,175 in respect of legal fees incurred before the domestic courts, and the full amounts claimed in respect of legal fees incurred before the Court and translation costs. Accordingly, the Court awards the total sum of EUR 7,448 to cover costs under all heads. C. Default interest 199. 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 in particular that there had been a violation of Article 5 § 1 of the Convention, in that the charges against the applicant had not been based on a “reasonable suspicion”. It also held that there had been a violation of Article 5 § 4 on account of the lack of adequate judicial review of the lawfulness of his detention. Lastly, the Court held that there had been a violation of Article 18 in conjunction with Article 5, finding that a combination of factors supported the argument that the actual purpose of the measures against the applicant had been to silence and to punish him for his activities as a human rights defender: his arrest and detention in 2014 had occurred in the general context of an increasingly harsh and restrictive legislative regulation of NGO activity; there had been numerous statements by high-ranking officials and articles published in pro-Government media which had accused local NGOs and their leaders, including the applicant, of being traitors and foreign agents; and several other notable human rights activists, who had also cooperated with international organisations protecting human rights, had similarly been arrested and charged. |
652 | Lawyers | II. RELEVANT DOMESTIC LAW AND PRACTICE 29. The relevant provisions of the Decree of 27 November 1991 on the organisation of the legal profession, as amended, read as follows: Article 180 “Except in Paris, the disciplinary board shall be constituted as stipulated below. After each re-election as provided for by section 15 of the above-mentioned Law of 31 December 1971, the Bar Council shall appoint the following members to sit on the disciplinary board : (i) one full member and one substitute member from those Bar associations in which the number of lawyers entitled to vote is between eight and forty-nine; (ii) two full members and two substitute members from those Bar associations in which the number of lawyers entitled to vote is between fifty and ninety-nine; (iii) three full members and three substitute members from those Bar associations in which the number of lawyers entitled to vote is between one hundred and two hundred. ... Every Bar association with over two hundred lawyers entitled to vote shall appoint an additional representative and substitute for each two hundred lawyers. However, the members of that Bar association may not comprise more than half the membership of the Court of Appeal disciplinary board. Lawyers entitled to vote are those who are on the Bar Council roll on the date of 1 September preceding the re-election of the Bar Council. ... ” Article 183 “Any contravention of statutes or regulations, infringement of professional rules or breach of the duties of integrity, honour or discretion, even relating to non ‑ professional matters, shall render the lawyer in question liable to the disciplinary sanctions listed in Article 184.” Article 184 “ The disciplinary penalties shall be: 1. warning; 2. reprimand; 3. temporary disbarment not exceeding three years; 4. striking off the roll or withdrawal of honorary status. ... ” Article 188 “ In the cases provided for in Article 183 the chairman of the Bar to which the lawyer in question belongs, or the Principal Public Prosecutor, shall formally refer the case to the disciplinary authority, giving reasons, either directly or following an ethical standards investigation. He or she shall give advance notice to the authority that is not instigating the disciplinary proceedings. The referral shall be notified to the lawyer by the authority instigating the disciplinary action, by registered letter with recorded delivery. A copy shall be sent to the Bar Council with which the lawyer is registered, for the purpose of appointing a rapporteur Within fifteen days of notification the Bar Council with which the lawyer is registered shall appoint one of its members to investigate the case. ... ” Article 191 “The rapporteur shall send the investigation report to the chairman of the disciplinary board ... no later than four months after being appointed. ... A copy shall be sent to the chairman of the Bar and the Principal Public Prosecutor if the latter has instigated the disciplinary proceedings. The date of the hearing shall be set by the chairman of the disciplinary board ... ” Article 192 “No disciplinary penalty may be imposed unless the lawyer in question has given evidence or been called at least eight days previously ... ” Article 197 “The lawyer who is the subject of the disciplinary decision, the Principal Public Prosecutor and the chairman of the Bar may appeal against the decision to the Court of Appeal, which shall rule under the conditions laid down in Article 16, after hearing evidence from the Principal Public Prosecutor. The proceedings shall be conducted in public in accordance with Article 194. The chief registrar of the Court of Appeal shall notify all the parties of the appeal in a registered letter with recorded delivery, indicating the date on which the appeal will be heard. The time allowed for an interlocutory appeal shall be fifteen days following notification of the appeal in the main proceedings. The Principal Public Prosecutor shall be responsible for the enforcement and supervision of the disciplinary penalties imposed.” 30. Under Article 380-2 of the Code of Criminal Procedure, only the Principal Public Prosecutor is entitled to appeal against an acquittal judgment. The Assize Court is composed of three professional judges and a jury made up of six citizens drawn by lots at first instance, and nine on appeal. Only the accused or his or her lawyer, and the public prosecutor, have the right to challenge jurors; the civil party may not do so. For a description of the procedure before the Assize Court with a lay jury, the Court refers to its judgment in Agnelet v. France (no. 61198/08, §§ 29 et seq., 10 January 2013). 31. In France, the question of the “racial” or ethnic representativeness of the jury is not debated because recognition of the existence of groups within the population is contrary to the Constitution. Thus, in a decision of 9 May 1991 ( no. 91-290 DC), the Constitutional Council held that the reference made by the legislature to the Corsican people, as a group within the French nation, was contrary to the Constitution, “which recognise [d] only the French nation, composed of all French citizens without distinction as to origin, race or religion”. Similarly, in a decision of 15 November 2007 ( no. 2007-557 DC), the Constitutional Council held that “ethnic statistics” were not permitted on the grounds that they breached Article 1 of the Constitution, according to which “France ... shall ensure equality before the law for all citizens without distinction as to origin, race or religion”. The Constitutional Council held as follows: “ ... while the processing operations necessary for carrying out studies on the degree of diversity of people ’ s origins, discrimination and integration may concern objective data, they will be in breach of the principle set out in Article 1 of the Constitution if they are based on ethnic origin or race. ... ” 32. The removal of the word “race” from the French Constitution has been the subject of debate for a number of years. A draft law to that effect tabled in 2013 was not adopted. The legislature has replaced the word “ race ” with the term “declared race ” in the following provisions of the Criminal Code: Article 225-1 which defines discrimination ( Law of 18 November 2016 on the modernisation of justice in the twenty-first century); Articles 132-76 and 222-13 which set out the aggravating circumstances of a crime or offence ( Law of 27 January 2017 on equality and citizenship); and Article R. 625-7 concerning non-public provocation, defamation and insults (Decree of 3 August 2017 on non-public provocation, defamation and insults of a racist or discriminatory nature). The note accompanying this decree emphasises that the word “ race ” “ is not applicable to human beings ”. III. COMPARATIVE LAW AND PRACTICE 33. The Court notes that the issue of the diversity and representativeness of the judiciary is the subject of debate in several Council of Europe member States, some of which have chosen to address the issue in a very different way to that chosen by France. In the United Kingdom, for instance, the under-representation of women and persons from visible minority groups among judges, especially in the higher courts, prompted the authorities to implement a proactive policy to promote diversity, with the creation in 2013 of a Judicial Diversity Committee under the authority of the Lord Chief Justice. In April 2017 the Committee published its first official statistics on the composition of the judiciary, together with an action plan to encourage greater diversity (Judicial Diversity Committee of the Judges ’ Council – Report on Progress and Action Plan 2016-17, 13 April 2017). In the Netherlands the Council for the Judiciary, as far back as 2007, commissioned a study into the representation of ethnic minorities in the judiciaries of several traditional and more recent immigration countries (the Netherlands, Germany, France, Canada and the United States). A handbook published by the Council for the Judiciary in 2015 on reforming the process for the selection, recruitment and training of judges set out the clear objective of ensuring that the diversity within society was reflected in the judiciary ( “ Judicial reform in the Netherlands: A new process for the recruitment, selection and training of judges ”, Scientific Magazine for the Judiciary Organisation of the Netherlands, 2015). 34. By way of comparison, in North America the diversity of juries and its impact on decision-making is the subject of numerous studies and court decisions. For example, in the United States the Supreme Court held in its decision in Batson v. Kentucky (476 US 79 (1986)) that the right of defence and prosecution lawyers to challenge jurors could not be exercised on the basis of “racial” criteria (see also, for a recent example, Timothy Throne Foster v. Bruce Chatman (578 U.S. – (2016)). In the Supreme Court ’ s decision in Peters v. Kiff (407 US 493 (1972)) regarding the systematic exclusion of African Americans from juries, Justice Thurgood Marshall issued a dissenting opinion in which he argued that removing a large part of the community from the jury reduced the diversity of human experiences and qualities that could be expressed during the deliberations. In Canada, in several recent cases, individuals accused of murdering “ Aboriginal ” people have been acquitted by juries with no Aboriginal members. These judgments triggered a debate on the representativeness of Canadian juries and the need to reform jury selection in order to promote the participation of members of Aboriginal communities; in particular, a former Supreme Court judge delivered a report in 2013 concerning the province of Ontario. In 2015 the Supreme Court ruled ( R v. Kokopenace, 2015 SCC 28) that provinces had an obligation to make “ reasonable efforts ” to provide “a fair opportunity for a broad cross-section of society to participate in the jury process”. However, they are not required to ensure that the final composition of the jury accurately and proportionately reflects the different groups making up the Canadian population. THE LAW I. ALLEGED VIOLATION OF ARTICLE 10 OF THE CONVENTION 35. The applicant alleged that the disciplinary penalty imposed on him breached 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, ... for the protection of the reputation or rights of others, ... for maintaining the authority and impartiality of the judiciary.” A. Admissibility 36. 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 37. The applicant submitted that the interference had not pursued the legitimate aim of protecting the rights and freedoms of others. The remarks in question had not demonstrated any personal animosity towards the members of the jury and had not called into question their honesty or integrity. Furthermore, the aim of maintaining the authority and impartiality of the judiciary did not justify the interference, as lawyers ’ freedom of expression, even if it sometimes entailed criticism of the courts, was apt to contribute to improving and strengthening the judiciary. 38. The applicant maintained that the remarks had formed part of a debate of public interest concerning the functioning of the judiciary, which called for a high level of protection of freedom of expression with a particularly narrow margin of appreciation. He referred in that regard to the opinion of the advocate-general at the Court of Cassation (see paragraph 27 above). 39. The remarks concerning the composition of the jury constituted a statement of fact, the objective reality of which was beyond dispute. In any event, if the Court were to consider that the remarks had been accompanied by a value judgment, they had a very solid factual basis. They had been made at the end of the hearing and had been inextricably linked to the case in which he had been representing his client ’ s interests. In the applicant ’ s view, they could not be viewed in isolation, as the remarks preceding them had also pointed to the risks of a two-speed society and the need to prevent segregation in society and between communities. They had described, in the heat of the moment and at a time when the judicial decision had not been final, a situation that was widespread in the country and especially in the département in which the Assize Court had been sitting. 40. Thus, in the applicant ’ s view, his remarks were sociological and political in nature rather than racial or racist. He contested the assumption of which the Government complained, to the effect that the skin colour of a jury determined the verdict of the Assize Court; the reference to a “ white ” jury had been just one factor among others ( the conduct of the proceedings, the passive role of the prosecution) in his conclusion that the acquittal verdict had not been a surprise. 41. Lastly, the applicant argued that his remarks had to be placed in context. He noted the Government ’ s acknowledgement of the exceptionally tense context in which the trial had been held. Furthermore, as a lawyer for the civil party, he did not have the right to challenge jurors. After the challenges had been exercised, jurors were no longer just private individuals but constituted an organ of the judiciary which had to be seen to be impartial. As soon as the verdict had been delivered he had questioned the prosecution ’ s representative about his intentions, since, unlike the prosecution, the civil party had no means of challenging an acquittal verdict. The prosecutor had replied that the possibility of an appeal should be discussed within the Principal Public Prosecutor ’ s Office at the Montpellier Court of Appeal. Given the conduct of the trial, and in particular the refusal of the President of the Assize Court to question the two gendarmes accused of lying to the investigating judge, and the hesitant attitude of the prosecution ’ s representative, he had realised that an appeal was unlikely and had tried to influence the prosecutor ’ s choice. Although the proceedings had ended he had decided, from his position on the civil party ’ s bench in the courtroom, still in his robes and alongside the defence lawyer who was being questioned in the same circumstances by other journalists, that he could not in all conscience shirk his duty as a lawyer in view of the reluctant attitude of the prosecution. ( b) The Government 42. The Government submitted that the interference at issue had been prescribed by law and had pursued the legitimate aims of protecting the reputation or rights of others – the members of the Assize Court jury – and maintaining the authority and impartiality of the judiciary. 43. In view of the considerable media coverage of the case from the outset, the Government accepted that the applicant ’ s statement, which had concerned the functioning of the judiciary and the conduct of the trial, had formed part of a debate of public interest. 44. The remarks had constituted value judgments casting doubt on the impartiality and fairness of the Assize Court jurors because of the “ community ” to which they belonged. The applicant had made remarks about the judicial system, outside the courtroom, that were so serious as to overstep the permissible expression of comments without a sound factual basis. In so doing he had imposed an assumption or an abstract correlation between jurors ’ skin colour and the thrust of the deliberations; this was liable to undermine public confidence in the justice system. 45. The Government acknowledged that the context had been tense and not conducive to calm reflection on the proper course of justice. Nevertheless – and however understandable the applicant ’ s disappointment – he should not have given vent to his anger in answering the journalist ’ s questions about a case that had not been finally determined. 46. If the applicant had hoped to influence the prosecution ’ s decision as to whether to appeal against the acquittal, making such a statement was not the only means of asserting the rights of the defence: the correct approach would have been to speak to the public prosecutor at the end of the hearing. Instead the applicant, overstepping the limits of criminal defence, had engaged in outright condemnation not only of professional judges but also, primarily, of the jurors on account of their racial background and colour. 47. The Government observed that the penalty imposed on the applicant had been the lightest possible and had had no repercussions on his professional activity. 48. They concluded, for the reasons given by the Court of Appeal, that the interference had been necessary in view of the immoderate and imprudent nature of the applicant ’ s comments. Given the content of his remarks, their dissemination in the press, the context, the applicant ’ s status as a lawyer and the mild nature of the penalty, the Government were of the view that there had been no violation of Article 10 of the Convention. 2. The Court ’ s assessment 49. The Court considers that the disciplinary penalty imposed on the applicant constituted interference with the exercise of his right to freedom of expression, and observes that the parties agree on this point. Such interference will breach Article 10 of the Convention unless it is “prescribed by law”, pursues one or more of the “legitimate aims” listed in paragraph 2 of Article 10, and is “necessary in a democratic society” in order to fulfil the said aim or aims. ( a) Prescribed by law 50. The Court agrees with the national courts that the interference was “prescribed by law”, namely by Article 183 of the Decree of 27 November 1991. ( b) Legitimate aim 51. The parties disagreed as to whether the interference had pursued a legitimate aim or aims ( see paragraphs 37 and 42 above). 52. The Court considers that the applicant ’ s arguments concern the assessment of whether the interference was necessary, as regards the aim of “protection of the reputation or rights of others”. It accepts the Government ’ s view that the interference pursued such an aim, as the individual jurors may have felt directly targeted by the reference to their skin colour. Lastly, it considers that the interference was also aimed at maintaining “the authority and impartiality of the judiciary”, of which the jury, alongside the professional judges, forms a part. ( c) Necessity in a democratic society 53. The Court refers to the general principles which it has reiterated many times since its judgment in Handyside v. the United Kingdom ( 7 December 1976, Series A no. 24 ), and which it restated more recently in Morice v. France ([GC], no. 29369/10, §§ 124 - 27, ECHR 2015). 54. It also refers to the latter judgment as regards the principles relating to the status and freedom of expression of lawyers, with emphasis on the distinction it draws between remarks made by lawyers inside and outside the courtroom (§§ 132 - 38). 55. In the present case the Court notes that, although the applicant was inside the court building when he made the impugned remarks, his statement was made in reply to a question from a journalist, after the acquittal verdict had been given and the Assize Court hearing had ended. Consequently, in the light of the distinction referred to above, the Court considers that the statements in question did not form part of “conduct in the courtroom” and should be regarded as those of a lawyer speaking outside the courtroom. It observes that the Court of Appeal took a similar view and concluded that the judicial immunity enjoyed by lawyers under domestic law in relation to “conduct in the courtroom” did not apply. 56. With regard to remarks made outside the courtroom, the Court has previously held that a client ’ s defence may, in certain circumstances, be pursued through the media if the remarks do not constitute gravely damaging attacks on the action of the courts, if the lawyers are speaking in the context of a debate of public interest concerning the functioning of the justice system and in connection with a case that has aroused media and public interest, if they do not overstep the permissible expression of comments without a sound factual basis, and if they have made use of the available remedies on their client ’ s behalf (see Morice, cited above, §§ 138, 139 and 174). The Court specified in that case that lawyers were protagonists in the justice system, directly involved in its functioning and in the defence of a party, and could not be equated with external witnesses whose task it was to inform the public (ibid., § 148). 57. In examining the complaint before it the Court will take into account the criteria it adopted in Morice, namely the applicant ’ s status and the role played by his statement in the task of defending his client; the contribution to a debate of public interest; the nature of the impugned remarks; the specific circumstances of the case; and the nature of the sanction imposed. ( i ) The applicant ’ s status as a lawyer 58. The Court reiterates that the defence of a client by his or her lawyer must be conducted not in the media, save in very specific circumstances, but in the courts of competent jurisdiction, and that this involves using any available remedies (see Morice, cited above, § 171). In the present case, although the acquittal verdict had been delivered, the judgment was not yet final. The Principal Public Prosecutor had a period of ten days in which to appeal against the decision, unlike the civil party – whom the applicant was representing – who did not have that right. The Court agrees with the disciplinary board of the Bar associations attached to the Montpellier Court of Appeal (see paragraph 22 above) that the statement made at the exit from the courtroom had been part of an analytical approach that was apt to help persuade the Principal Public Prosecutor to appeal against the decision to acquit. It also notes the Government ’ s assertion that there was nothing in the file to demonstrate that this means of expression was the only means available to the applicant in order to defend his client ’ s interests (see paragraph 46 above). It observes that, in choosing this form of words, the Government were criticising the use of the impugned remarks rather than the applicant ’ s assertion that they were aimed at defending the interests of the civil party. The Court therefore considers that, in making his statement, the applicant sought an opportunity to continue his client ’ s defence by pursuing the proceedings before an enlarged assize court of appeal ( see, mutatis mutandis, Mor v. France, no. 28198/09, § 59, 15 December 2011). (ii) Contribution to a debate of public interest 59. The applicant referred to his right to inform the public about a matter of public interest such as the courts ’ treatment of police officers implicated in criminal proceedings. The Government accepted that the applicant ’ s remarks had related to the functioning of the judiciary and to a matter of public interest, particularly in view of the wide media coverage of the case. 60. The Court notes that this factor was not taken into account by the Court of Appeal, which confined its examination to the conformity of the applicant ’ s remarks with lawyers ’ duties of moderation and discretion. 61. In this regard the Court notes, firstly, that the trial took place in an atmosphere of considerable tension that had led to rioting in the district where the victim had lived (see paragraphs 16 and 17 above) and that it had a significant impact at local and national level, as attested to and heightened by the presence of the audiovisual media when the verdict was delivered. The Court reiterates, secondly, that the public has a legitimate interest in the provision and availability of information about criminal proceedings, and that remarks concerning the functioning of the judiciary relate to a matter of public interest ( see Morice, cited above, § 152, and Bédat v. Switzerland [GC], no. 56925/08, § 63, 29 March 2016). In the present case the Court considers that the applicant ’ s remarks, which concerned the functioning of the judiciary, and in particular proceedings before an assize court sitting with a lay jury and the conduct of a criminal trial relating to the use of firearms by law-enforcement agents, were part of a debate on a matter of public interest. Accordingly, it was first and foremost for the national authorities to ensure a high level of protection of freedom of expression, with a particularly narrow margin of appreciation being afforded to them. ( iii ) The nature of the impugned remarks 62. The Court observes that the Court of Appeal – and, accordingly, the Court of Cassation – did not make reference in its judgment to the applicant ’ s clearly articulated criticisms of the way in which the prosecution and the trial had been conducted. The interference of which the applicant complained was therefore based solely on his assessment of the Assize Court jury. 63. The Court notes that the applicant ’ s remarks did not reflect any personal animosity on his part towards a specifically named juror or a professional judge. Hence, it regards them not as condemnation but as a general assertion concerning the potential link between the composition of the jury and the gendarme ’ s acquittal. 64. The Court stresses that in using the expression “all-white” to describe the jury in order to make the point that, combined with other circumstances, this factor had made the acquittal possible, the applicant referred to an ethnic characteristic that has been the subject of debate, criticism and even prohibition because of the historical tragedies with which it has been linked and the discrimination which it still frequently entails. However, it does not appear to the Court that the applicant was seeking to accuse members of the jury of racial bias. Rather, the Court considers that the applicant ’ s statement reflected a widely held view that the impartiality of judges, whether professional or lay judges, is a virtue that does not exist in a vacuum but is the result of considerable efforts to shake off unconscious bias rooted, in particular, in geographical and social background and liable to arouse fears in persons being tried of being ill ‑ understood by persons of different appearance to them ( see, as regards the impartiality of the courts in cases of allegations of racism on the part of a juror, the Court ’ s judgments in Remli v. France, 23 April 1996, Reports of Judgments and Decisions 1996 ‑ II; Gregory v. the United Kingdom, 25 February 1997, Reports 1997 ‑ I; and Sander v. the United Kingdom, no. 34129/96, ECHR 2000 ‑ V ). In the Court ’ s view, this interpretation follows from the applicant ’ s remarks as seen in their proper context. Those remarks also made reference to “[a] jury on which not all communities are represented”, and were preceded by a social commentary on the impact of the verdict, to the effect that “the verdict [was] ... disastrous in terms of social peace” and that there existed a “ two-speed society”. In this connection the applicant stated as follows: “People are living in tower blocks cut off from city centres. For some, prosecution ends in conviction while others are acquitted. The entire social system needs to be revamped ... ” (see paragraphs 11 and 12 above). It should likewise be observed that the applicant, who also referred to the manner in which the prosecution and the trial had been conducted, did not assert that the acquittal had been certain but that he had “always [known] it was a possibility”. This is closer to a critical discussion than to an accusation of systematic bias amounting to holding in contempt a jury he suspected of racism, something that would be incompatible with proper respect for the justice system. 65. The Court is mindful of the fact that the spoken reference by the applicant to the origins or skin colour of the jurors concerned an issue that is particularly sensitive in the respondent State, whose laws prohibit consideration of “racial” or ethnic origin (see paragraphs 31 and 32 above). It appreciates that the reference may therefore have offended some members of the public and of the judiciary. Nevertheless, it considers that the reference to the “community ” to which the members of the jury belonged cannot be construed simply as an intention to accuse them of racial bias, but called for a wider debate on the issue of diversity in jury selection and, as pointed out by the disciplinary body, on the link between their origins and the decision taken (see paragraphs 22, 27, 33 and 34 above). 66. Against this background the Court considers that the impugned statement can be regarded as a general assertion concerning the organisation of the criminal-justice system by a lawyer “echoing more general debates within society ” (see paragraph 27 above) and constituted a value judgment. The Court reiterates in that regard that assertions about matters of public interest may, on that basis, constitute value judgments rather than statements of fact ( see Paturel v. France, no. 54968/00, § 37, 22 December 2005, and Boykanov v. Bulgaria, no. 18288/06, § 37, 10 November 2016). 67. It remains to be determined whether the factual basis for that value judgment was sufficient. The Court is of the view that this condition was fulfilled in the present case. It observes, firstly, that the statement in question was fully in line with the national debate to which the advocate ‑ general referred before the Court of Cassation (see paragraph 27 above) and, further afield, with the political and academic debate on the justice system taking place in various countries (see paragraphs 33 and 34 above). Secondly, it considers that the remarks were sufficiently closely linked to the facts of the case, in view of the social and political background to the proceedings. 68. In sum, although the impugned remarks had a negative connotation, the Court considers that they were more akin to a general criticism of the functioning of the criminal-justice system and social relations than to an insulting attack on the lay jury or the Assize Court as a whole. The Court reiterates in this connection 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” ( see Morice, cited above, § 161). ( iv ) The specific circumstances of the case ( α ) The need to take account of the overall background 69. The Court observes that the remarks in issue were made against a background of heightened social tension. It also notes that the investigation established that some of the gendarme ’ s colleagues had given false statements seeking to exonerate him – for which they were subsequently convicted – and that the case was followed closely by the media and the public, a fact which contributed to the tense atmosphere throughout the trial. The tension reached a peak six months after the events when the gendarme who had fired the fatal shots was acquitted. In these circumstances the Court accepts the applicant ’ s assertion that his remarks should be placed in the context of the troubled atmosphere in which the verdict was delivered. Thus, as regards the wording of the impugned statement, the Court notes that it was made immediately after the delivery of the Assize Court ’ s verdict and in the context of a rapid oral exchange of questions and answers, so that there was no possibility of reformulating, refining or retracting the statements before they were made public (see, among other authorities, Otegi Mondragon v. Spain, no. 2034/07, § 54, ECHR 2011). ( β ) Maintaining the authority of the judiciary 70. The Court notes that the Court of Appeal held that the remarks concerning the lay jury had sought to discredit the Assize Court as a whole – as the applicant had omitted to mention the fact that the deliberations took place on a collegiate basis – and hence the entire judiciary. 71. As jurors and professional judges deliberate on an equal footing on the verdict and sentence, the Court considers that the limits of acceptable criticism of the former, when they are involved in trying criminal offences, are the same as those applicable to judges (see Morice, cited above, §§ 128 and 168). Thus, in the present case, the fact that the applicant mentioned only the lay jury in his remarks did not mean that his right to criticise the judicial authority extended beyond the limits outlined above. 72. That being said, the Court agrees with the Court of Appeal that the applicant ’ s remarks were directed at the Assize Court as a whole. This is true of the reference to an “all-white jury”, but also and especially of the remarks that followed (“the door was wide open for an acquittal, it ’ s no surprise”). The Court reiterates in that regard the importance, in a State governed by the rule of law and in a democratic society, of maintaining the authority of the judiciary. The proper functioning of the courts would not be possible without relations based on consideration and mutual respect between the various protagonists in the justice system, at the forefront of which are judges and lawyers (see Morice, cited above, § 170). Nevertheless, for the reasons set out above (see paragraphs 64 to 67), the Court considers that the facts of the case do not support the conclusion that there was an attack on the authority and impartiality of the judiciary such as to justify the judgment against the applicant. ( e) The sanction 73. The Court notes that the penalty imposed on the applicant was the lightest possible in disciplinary proceedings – “merely ... [a] warning” according to the Court of Cassation. Nevertheless, it observes that this is not a trivial matter for a lawyer (see paragraph 77 below) and that even when the penalty is the lightest possible, that fact cannot suffice in itself to justify the interference with the applicant ’ s freedom of expression (see Morice, cited above, § 176, and the case-law cited therein). ( f) Conclusion 74. The Court considers that the impugned remarks by the applicant constituted criticism of the jury and judges of the Assize Court which had delivered the acquittal verdict, but that they formed part of a debate of public interest concerning the functioning of the criminal-justice system, in the context of a case that had attracted wide media coverage. While they were capable of shocking, they nevertheless amounted to a value judgment with a sufficient factual basis made in the context of his client ’ s representation in criminal proceedings. 75. In view of the foregoing the Court considers that the judgment against the applicant is to be regarded as disproportionate interference with his right to freedom of expression and was therefore not “necessary in a democratic society”. Accordingly, there has been a violation of Article 10 of the Convention. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 76. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 77. Basing his claim on the sum awarded to the applicant in Morice, the applicant claimed EUR 15,000 in respect of non-pecuniary damage. He argued that the disciplinary proceedings had resulted in widespread media coverage in the area covered by the Nîmes Court of Appeal and in virulent comments on the Internet that were liable to damage his reputation and honour. He added that the Court of Cassation judgment had received maximum publicity (in the official reports of the Criminal Division ’ s decision, the Court of Cassation ’ s news bulletin and on the court ’ s website), producing a considerable impact within the judicial circles in which he worked. 78. The Government considered that sum to be excessive, pointing out that the applicant had received the lightest possible disciplinary penalty. They also observed that, in the case of Bono v. France ( no. 29024/11, § 60, 15 December 2015), which concerned a heavier disciplinary penalty imposed on a lawyer, the Court had awarded EUR 5,000 in respect of non ‑ pecuniary damage. In their submission, an amount of EUR 4,000 would be sufficient. 79. The Court considers that in the circumstances of the case the finding of a violation in this judgment constitutes in itself sufficient just satisfaction. B. Costs and expenses 80. The applicant did not submit any claim in respect of costs and expenses. Accordingly, the Court makes no award under this head. | The Court held that there had been a violation of Article 10 (freedom of expression) of the Convention. It noted in particular that the penalty had amounted to an interference with the applicant’s exercise of the right to freedom of expression, which had been prescribed by law and pursued the aims of protecting the reputation or rights of others and maintaining the authority and impartiality of the judiciary. It also found that the contested remarks had been made as part of a debate on the functioning of the criminal justice system, in the context of media coverage of a case. Taken in their context, they did not amount to an insulting or racially motivated accusation, but concerned the impartiality and representative nature of the assize court jury; in other words, the lawyer had made a general statement about the organisation of the criminal courts. Capable of causing offence, these remarks were nonetheless a value judgment with a sufficient factual basis, and formed part of the defence of the lawyer’s client. Lastly, the Court considered that the sentence, consisting in the lightest possible penalty, had nonetheless been disproportionate and had not been necessary in a democratic society. |
298 | Prevention of terrorism | II. RELEVANT DOMESTIC LAW AND PRACTICE A. Administrative liability 27. Article 125 of the Turkish Constitution provides as follows: “All acts or decisions of the administration are subject to judicial review ... The administration shall be liable to indemnify any damage caused by its own acts and measures.” 28. The above provision is not subject to any restrictions even in a state of emergency or war. The latter requirement of the provision does not necessarily require proof of the existence of any fault on the part of the administration, whose responsibility is of an absolute, objective nature, based on a concept of collective liability and referred to as the theory of “social risk”. Thus the administration may indemnify people who have suffered damage from acts committed by unknown or terrorist authors when the State may be said to have failed in its duty to maintain public order and safety, or in its duty to safeguard individual life and property. 29. The principle of administrative liability is reflected in the additional Article 1 of Law no. 2935 of 25 October 1983 on the State of Emergency, which provides: “... actions for compensation in relation to the exercise of the powers conferred by this Law are to be brought against the administration before the administrative courts.” B. Criminal responsibility 30. The Turkish Criminal Code makes it a criminal offence – to deprive an individual unlawfully of his or her liberty (Article 179 generally, Article 181 in respect of civil servants), – to oblige an individual through force or threats to commit or not to commit an act (Article 188), – to issue threats (Article 191), – to make an unlawful search of an individual’s home (Articles 193 and 194), – to commit arson (Articles 369, 370, 371, 372), or aggravated arson if human life is endangered (Article 382), – to commit arson unintentionally by carelessness, negligence or inexperience (Article 383), or – to damage another’s property intentionally (Articles 526 et seq.). 31. For all these offences complaints may be lodged, pursuant to Articles 151 and 153 of the Code of Criminal Procedure, with the public prosecutor or the local administrative authorities. The public prosecutor and the police have a duty to investigate crimes reported to them, the former deciding whether a prosecution should be initiated, pursuant to Article 148 of the Code of Criminal Procedure. A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings. 32. If the suspected authors of the contested acts are military personnel, they may also be prosecuted for causing extensive damage, endangering human lives or damaging property, if they have not followed orders in conformity with Articles 86 and 87 of the Military Code. Proceedings in these circumstances may be initiated by the persons concerned (non-military) before the competent authority under the Code of Criminal Procedure, or before the suspected persons’ hierarchical superior (sections 93 and 95 of Law no. 353 on the Constitution and Procedure of Military Courts). 33. If the alleged author of a crime is an agent of the State, permission to prosecute must be obtained from local administrative councils (the Executive Committee of the Provincial Assembly). The local council decisions may be appealed to the Council of State; a refusal to prosecute is subject to an automatic appeal of this kind. C. Provisions on compensation 34. Any illegal act by civil servants, be it a crime or a tort, which causes material or moral damage may be the subject of a claim for compensation before the ordinary civil courts. 35. Proceedings against the administration may be brought before the administrative courts, whose proceedings are in writing. 36. Damage caused by terrorist violence may be compensated out of the Aid and Social Solidarity Fund. D. Provisions on emergency measures 37. Extensive powers have been granted to the Regional Governor of the State of Emergency by decrees enacted under Law no. 2935 on the State of Emergency (25 October 1983), especially Decree no. 285, as amended by Decrees nos. 424 and 425, and Decree no. 430. 38. Decree no. 285 modifies the application of Law no. 3713, the Anti-Terror Law (1981), in those areas which are subject to the state of emergency, with the effect that the decision to prosecute members of the security forces is removed from the public prosecutor and conferred on local administrative councils. These councils are made up of civil servants and are under the authority of the provincial governors who also head the security forces. 39. Article 8 of Decree no. 430 of 16 December 1990 provides as follows: “No criminal, financial or legal responsibility may be claimed against the State of Emergency Regional Governor or a Provincial Governor within a state of emergency region in respect of their decisions or acts connected with the exercise of the powers entrusted to them by this decree, and no application shall be made to any judicial authority to this end. This is without prejudice to the rights of individuals to claim indemnity from the State for damage suffered by them without justification.” According to the applicant, this Article grants impunity to the Governors and reinforces the powers of the Regional Governor to order the permanent or temporary evacuation of villages, to impose residence restrictions and to enforce the transfer of people to other areas. Damage caused in the context of the fight against terrorism would be “with justification” and therefore immune from suit. THE LAW I. the court’s assessment of the facts 40. The Court reiterates its settled case-law that under the Convention system prior to 1 November 1998 the establishment and verification of the facts was primarily a matter for the Commission (former Articles 28 § 1 and 31). While the Court is not bound by the Commission’s findings of fact and remains free to make its own assessment in the light of all the material before it, it is however only in exceptional circumstances that it will exercise its powers in this area (see, among other authorities, the Akdivar and Others v. Turkey judgment of 16 September 1996, Reports of Judgments and Decisions, 1996-IV, p. 1214, § 78). 41. The Government argued that the Commission gave undue weight to the evidence of the applicant and the other villager witnesses whose evidence was in their view unreliable and inconsistent. The Court observes that the Government’s points concerning these witnesses were taken into consideration by the Commission in its report, which approached its task of assessing the evidence with the requisite caution, giving detailed consideration to the elements which supported the applicant’s claims and those which cast doubt on their credibility. It does not find that the criticisms made by the Government raise any matter of substance which might warrant the exercise of its own powers of verifying the facts. In these circumstances, the Court accepts the facts as established by the Commission (see paragraphs 9-20 above). II. THE GOVERNMENT’S PRELIMINARY OBJECTION 42. The Government submitted that the applicant had not used any domestic remedy, not even lodging a criminal complaint, in respect of her allegations. Her only excuse for this was an alleged fear of reprisals. The applicant had available to her an administrative remedy regarding the strict liability of the State for protecting the citizen from damage, as well as the possibility pursuing a civil action for damages. 43. The Court reiterates that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention obliges applicants to use first the remedies that are normally 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, in practice as well as in theory, failing which they will lack the requisite accessibility and effectiveness. Article 35 § 1 also requires that the 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 laid down in domestic law, but not that recourse should be had to remedies which are inadequate or ineffective (see the Aksoy v. Turkey judgment of 18 December 1996, Reports 1996-VI, pp. 2275-76, §§ 51-52, and the Akdivar and Others v. Turkey judgment of 16 September 1996, Reports 1996-IV, p. 1210, §§ 65 ‑ 67). 44. The Court emphasises 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. In reviewing whether it has been observed, it is essential to have regard to the circumstances of the individual case. This means, amongst other things, that the Court must take realistic account of the general legal and political context in which remedies operate, as well as the personal circumstances of the applicant (see the Akdivar and Others v. Turkey judgment, cited above, p. 1211, § 69, and the Selçuk and Asker v. Turkey judgment of 24 April 1998, Reports 1998-I, p. 907, §§ 65-66). 45. Regard must therefore be had in this case to the situation which existed in south-east Turkey at the time of the events complained of by the applicant, which was characterised by violent confrontations between the security forces and members of the PKK (see the Mentes and Others v. Turkey judgment of 28 November 1997, Reports 1997-VIII, p. 2707, § 58). In such a situation, as the Court has recognised in previous cases, there may be obstacles to the proper functioning of the system of the administration of justice (see the Akdivar and Others v. Turkey judgment, cited above, pp. 1211, § 70). 46. The Court recalls that, despite the extent of the problem of village destruction, there appeared in these previous cases to be no example of compensation being awarded in respect of allegations that property had purposely been destroyed by members of the security forces or of prosecutions having been brought against them in respect of such allegations. Furthermore, there had consistently been a general reluctance on the part of the authorities to admit that this type of practice by members of the security forces had occurred. The Government have provided no information since that would lead the Court to reach any different conclusion (see the Selçuk and Asker v. Turkey judgment, cited above, p. 908, § 68). 47. Accordingly, the Court finds that it has not been demonstrated by the Government with sufficient certainty that effective and accessible domestic remedies existed for complaints such as the applicant’s. Having regard to the circumstances in which her house and property, along with others in her village, were destroyed, the Court considers it understandable if the applicant considered it pointless to attempt to secure satisfaction through national legal channels. The insecurity and vulnerability of the applicant following the destruction of her home is also of some relevance in this context (see the Selçuk and Asker judgment, cited above, p. 908, § § 70-71). 48. The Court concludes that there existed special circumstances which dispensed the applicant from the obligation to exhaust domestic remedies. It follows that the Government’s preliminary objection on non-exhaustion must be dismissed. III ALLEGED VIOLATION OF ARTICLE 3 of the CONVENTION 49. The applicant invoked Article 3 of the Convention, which provides: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 50. The applicant submitted that the circumstances in which she had been forced from her house, which was burned in front of her eyes, and forcibly evicted so that she was left destitute and without security amounted as a minimum to inhuman and degrading treatment. 51. The Government rejected this complaint as being without any basis. 52. Article 3, as the Court has frequently underlined, enshrines one of the fundamental values of democratic society. Even in the most difficult of circumstances, such as the fight against terrorism or organised crime, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment. No provision is made, as in other substantive clauses of the Convention and its Protocols, for exceptions and no derogation from it is possible under Article 15 (see, inter alia, the Aksoy v. Turkey judgment, p. 2278, § 62). 53. The Court recalls that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the 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, amongst other authorities, the Tekin v. Turkey judgment of 9 June 1998, Reports 1998-IV, § 52). 54. The applicant in the present case was aged over 70 at the time of the events. Her home and property were destroyed before her eyes, depriving her of means of shelter and support, and obliging her to leave the village and community, where she had lived all her life. No steps were taken by the authorities to give assistance to her in her plight. 55. Having regard to the manner in which her home was destroyed and her personal circumstances therefore, the Court finds that the applicant must have been caused suffering of sufficient severity for the acts of the security forces to be categorised as inhuman treatment within the meaning of Article 3 (see also the Selçuk and Asker v. Turkey judgment, cited above, p. 910, §§ 77-78). 56. The Court concludes that there has been a violation of Article 3 of the Convention. IV. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION and article 1 of protocol no. 1 57. The applicant complained of the destruction of her home and property, invoking Article 8 of the Convention and Article 1 of Protocol No. 1, which provide: 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 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.” 58. The applicant submitted that the destruction of her home, property and possessions represented a serious violation of her right to respect for private and family life, her right to respect for home and her right to peaceful enjoyment of property. Further, the expulsion from her home and the fact that she cannot return to her village represented a serious interference with her lifestyle and a continuing violation of her right to peaceful enjoyment of her possessions. She contended that the expulsion from her village constituted separate and additional violations of both Articles above. 59. The Government submitted the applicant’s allegations had no factual foundation and that there was no substantiation of her claims that the security forces had burned and destroyed her house and goods. 60. The Court has found it established that the applicant’s house and property were deliberately destroyed by the security forces, obliging her to leave her village. There is no doubt that these acts, in addition to giving rise to a violation of Article 3, constituted particularly grave and unjustified interferences with the applicant’s right to respect for her private life, family life and home and with her peaceful enjoyment of her possessions (see also the Mentes and Others v. Turkey judgment, cited above, p. 2711, § 73; the Selçuk and Asker v. Turkey judgment, cited above, p. 911, § 86). 61. The Court, accordingly, finds violations of Article 8 of the Convention and Article 1 of Protocol No. 1. V. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 62. The applicant complained that she has not had an effective remedy within the meaning of Article 13 of the Convention, which provides: “Everyone whose rights and freedoms as set forth in this 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.” 63. The applicant, referring to the previous village destruction cases, submitted that she had no effective remedy available to her in respect of her complaints. There were undoubted practical difficulties and inhibitions barring villagers like the applicant from obtaining redress in south-east Turkey, where broad emergency powers had been conferred on the Emergency Governors and their subordinates. Public prosecutors had never brought any prosecutions concerning the village destructions and in this case conducted no investigation, referring the matter to an Administrative Council, which was a non-judicial body lacking in independence. 64. The Government argued that the applicant could have taken administrative or civil proceedings seeking damages or made a criminal complaint to the public prosecutor, which constituted effective remedies within the meaning of Article 13 of the Convention. 65. 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 might happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their Convention obligations under this provision. The scope of the obligation under Article 13 varies depending on the nature of the applicant’s complaint under the Convention. Nevertheless, the remedy required by Article 13 must be “effective” in practice as well as in law, in particular in the sense that its exercise must not be unjustifiably hindered by the acts or omissions of the authorities of the respondent State (see the Aksoy v. Turkey judgment, cited above, p. 2286, § 95; the Aydın v. Turkey judgment of 25 September 1997, pp. 1895-96, § 103; and the Kaya v. Turkey judgment of 19 February 1998, Reports 1998-I, pp. 329-30, § 106). 66. Where an individual has an arguable claim that her home and possessions have been purposely destroyed by agents of the State, Article 13 requires, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible and including effective access for the complainant to the investigation procedure (see the Mentes and Others v. Turkey judgment, cited above, p. 2715, § 89). 67. On the basis of the evidence adduced in the present case, the Court has found that the applicant’s home and property were destroyed, disclosing violations of Articles 3 and 8 of the Convention and Article 1 of Protocol No. 1. The applicant’s complaints in this regard are therefore “arguable” for the purposes of Article 13 (see the Boyle and Rice v. the United Kingdom judgment of 27 April 1988, Series A no. 131, p. 23, § 52; the Kaya judgment, cited above, § 107, and the Yaşa v. Turkey judgment of 2 September 1998, Reports 1998-VI, p. 2442, § 113). 68. The Court refers to its findings above that it has not been established with sufficient certainty that the remedies referred to by the Government provided in the circumstances of this case any effective prospect of obtaining redress (see paragraph 47 above). Furthermore, while the applicant did not approach any domestic authority with her complaints before introducing her application to the Commission, it appears that, following communication of this application to the Government on 27 February 1995, the public prosecutor summoned the applicant (see paragraphs 20 and 22). A statement taken by him dated 10 October 1995 has been provided, thumbprinted by the applicant, in which she maintained her claim that soldiers had burned her home. It is not apparent however that the public prosecutor took any other investigative step, before issuing a decision of non-competence and referring it to the Administrative Council. The Court has already found in a number of cases that this body made up of civil servants, hierarchically dependent on the governor, an executive officer linked to the security forces under investigation, cannot be regarded as independent (see the Güleç v. Turkey judgment of 27 July 1998, Reports 1998-IV, pp. 1731-33, §§ 77-82, and the Oğur v. Turkey [GC] no. 21594/93, §§ 85-93, ECHR 1999-III). No thorough or effective investigation was therefore conducted into the applicant’s allegations. 69. The Court concludes therefore that there has been a breach of Article 13 of the Convention. Vi. ALLEGED VIOLATION OF ARTICLE 18 OF THE CONVENTION 70. The applicant invoked Article 18 of the Convention which provides: “The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.” 71. The applicant argued that the enforced evacuation of 2-3 million people from villages in the south-east of Turkey, allegedly for security reasons, disclosed an arbitrary exercise of power, outside the framework of domestic legal safeguards and in deliberate subversion of the rule of law and the rights guaranteed under the Convention. 72. The Government denied this assertion. 73. Having regard to its findings above, the Court does not consider it necessary to examine this complaint separately. ViI. Alleged practices by the authorities in violation of the convention 74. The applicant maintained that there existed in Turkey an officially tolerated practice of destroying villages and failing to provide effective remedies, which aggravated the breach of which she had been victim. Referring to other cases concerning events in south-east Turkey in which the Commission and the Court had also found breaches in similar cases, the applicant submitted that they revealed a pattern of denial by the authorities of allegations of serious human-rights violations as well as a denial of remedies. 75. Having regard to its findings under Articles 3, 8 and 13 of the Convention and Article 1 of Protocol No. 1 above, the Court does not find it necessary to determine whether the failings identified in this case are part of a practice adopted by the authorities. VIII. ALLEGED VIOLATION OF former ARTICLE 25 OF THE CONVENTION 76. Finally, the applicant complained that she had been subject to serious interference with the exercise of her right of individual petition, in breach of former Article 25 § 1 of the Convention (now replaced by Article 34), which provided: “The Commission may receive petitions addressed to the Secretary General of the Council of Europe from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in [the] Convention, provided that the High Contracting Party against which the complaint has been lodged has declared that it recognises the competence of the Commission to receive such petitions. Those of the High Contracting Parties who have made such a declaration undertake not to hinder in any way the effective exercise of this right.” 77. The applicant submitted that she had been summoned by the public prosecutor, who asked her about her application to the Commission and put pressure on her. 78. The Government argued that the public prosecutor was justified in summoning the applicant in order to pursue his own investigation into her complaints. He had to question her about her application as it was the basis for opening his own file. 79. The Court reiterates that it is of the utmost importance for the effective operation of the system of individual petition instituted by former Article 25 (now replaced by Article 34) that applicants or potential applicants should be able to communicate freely with the Convention organs without being subjected to any form of pressure from the authorities to withdraw or modify their complaints (see the Akdivar and Others v. Turkey judgment, cited above, p. 1219, § 105; the Aksoy v. Turkey judgment cited above, p. 2288, § 105; the Kurt v. Turkey judgment of 25 May 1998, Reports 1998-III, p. 1192, § 159; and Ergı v. Turkey judgment of 28 July 1998, Reports 1998-IV, p. 1784, § 105). In this context, “pressure” includes not only direct coercion and flagrant acts of intimidation but also other improper indirect acts or contacts designed to dissuade or discourage applicants from pursuing a Convention remedy (see the above mentioned Kurt v. Turkey judgment, loc. cit. ). Furthermore, whether or not contacts between the authorities and an applicant are tantamount to unacceptable practices from the standpoint of former Article 25 § 1 must be determined in the light of the particular circumstances of the case. In this respect, regard must be had to the vulnerability of the complainant and his or her susceptibility to influence exerted by the authorities (see the Akdivar and Others and Kurt v. Turkey judgments, cited above, p. 1219, § 105 and pp. 1192-93, § 160, respectively). In previous cases, the Court has had regard to the vulnerable position of applicant villagers and the reality that in south-east Turkey complaints against the authorities might well give rise to a legitimate fear of reprisals, and it has found that the questioning of applicants about their applications to the Commission amounted to a form of illicit and unacceptable pressure, which hinders the exercise of the right of individual petition in breach of former Article 25 of the Convention ( ibid .). 80. In the instant case, the Court recalls that the Government had not provided any information to the Commission about the authorities’ contacts with the applicant and that the Commission reached its finding of undue interference on the basis of the oral testimony of the applicant and her son. The statement now provided to the Court (see paragraphs 24-26) indicates that the applicant was shown the statement made by her to the Human Rights Association (HRA) and the letter of authority concerning her legal representation before the Commission. It also appears that she was asked to verify her thumbprint and to verify the contents of the statement as accurate. The text of the statement also implies that the applicant was questioned as to whether she wanted to maintain an application to the Commission in Europe and whether she wished to pursue a complaint against the HRA lawyer. Though the applicant maintained that her statement to the HRA was accurate and repeated the substance of her allegation against the security forces, it does not appear that the public prosecutor pursued any questions with a view to adding to the factual detail of the applicant’s complaints. 81. In these circumstances, the Court is not satisfied that the interview related solely to the public prosecutor’s duty to collect information about the applicant’s complaints for the purpose of his own investigation. It also trespassed into verifying the authenticity of the applicant’s application and whether she wanted to continue it. The applicant not unreasonably must have felt intimidated by this interview and felt under pressure to withdraw complaints considered as being against the State. This constituted undue interference with her petition to the Convention organs. 82. The respondent State has therefore failed to comply with its obligations under former Article 25 § 1 of the Convention. Ix. APPLICATION OF ARTICLE 41 OF THE CONVENTION 83. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Pecuniary damages 84. The applicant claimed pecuniary damage in respect of the loss of her house, household goods, food stuffs, loss of income and costs incurred for alternative accommodation of 76,164.84 pounds sterling (GBP). 85. The Government argued the applicant’s claims were out of all proportion to the value of the items listed and were, in any event, unsubstantiated and largely imaginary. Furthermore, the applicant’s allegations that her home and possessions had been destroyed by security forces were unfounded and therefore, there was no requirement to award any compensation. Any just satisfaction should not exceed reasonable limits or lead to unjust enrichment. 86. The Court recalls its finding that the applicant’s home and possessions were destroyed by security forces (see § 60 above). In view of this finding it is undoubtedly necessary to award compensation for pecuniary damage. However, as the applicant has not substantiated her claims as to the quantity and value of her lost property with any documentary or other evidence, the Court’s assessment of the amounts to be awarded must, by necessity, be speculative and based on principles of equity. 1. House and outbuildings 87. The applicant claimed damages in respect of a house covering 250 square metres, which she valued at GBP 3,224.37 and a barn measuring 250 square metres and valued at GBP 2,149.58. 88. The Government disputed that the applicant, a villager in the rural area of Hazro, would own a house of the dimensions claimed. 89. The Commission has not made any findings as to the nature and size of the applicant’s house and outbuildings. 90. The Court notes that the Government have not provided an inspection report of the site to contradict the applicant’s figures, as in the Bilgin case (see the Bilgin v. Turkey judgment of 16 November 2000, § 142). Making its assessment on an equitable basis therefore, the Court awards an amount of GBP 5,000 in respect of the destroyed buildings, which sum is to be converted into Turkish liras at the rate applicable at the date of payment. 2. Other property 91. The applicant submitted claims in respect of 300 acres of irrigated arable land, 50 acres of dry arable land, a 20 acre fruit orchard, 30 acres of vineyards, a 50 acre tobacco field and 100 pear trees, assessed altogether at GBP 33,960.16; livestock worth in total GBP 3,731.62, household goods worth in total GBP 2,129.55 and food stuffs and tobacco stores worth an estimated value of GBP 4,824.38. 92. The Government submitted that the applicant’s claims were highly exaggerated and failed to reflect economic or any other reality. 93. The Court recalls that it has been found established that the contents of the applicant’s house had been destroyed and that, after her house had been burned, she had been obliged to leave Çitlibahçe (see paragraph 60), which must have entailed some consequential losses. The Court further recalls the Commission’s finding that the damaged household goods in the applicant’s home included a fridge, television, kitchen utensils, household goods, and produce, including tobacco, wheat, barley, lentils, and winter provisions (see paragraphs 16 and 18). 94. In the absence of any independent and conclusive evidence as to the applicant’s claims for other property and on the basis of principles of equity, the Court awards an amount of GBP 4,000, such sum to be converted into Turkish liras at the rate applicable at the date of payment. The Court has not awarded any sum in respect of the cultivated land and orchards in respect of which it has not been established that the applicant has been expropriated nor in respect of the livestock as it has not been established that this livestock perished as a consequence of the destruction of the applicant’s house and outbuildings. 3. Loss of income 95. The applicant claimed an amount of GBP 22,904.33 in compensation for loss of income from farming. 96. The Government disputed that any award of such a speculative nature should be made. 97. The Court is satisfied that the applicant must have suffered loss of income as a result of being forced from her home and village. In the absence of independent evidence on the size of the applicant’s landholdings and income derived therefrom, and having regard to equitable considerations, the Court awards under this head an amount of GBP 3,000, to be converted into Turkish liras at the rate applicable at the date of payment. 4. Alternative accommodation 98. The applicant claimed the reimbursement of rent to an amount of 1,401,960,860 Turkish liras (TRL) which she paid in Diyarbakır between August 1993 and June 1997 and 1,561,000,000 TRL for rent paid in İstanbul since June 1997, which corresponds to GBP 3,204.61 for a 60 month period. 99. The Government considered these claims excessive. 100. In the absence of documentary substantiation of this part of the applicant’s claim and having regard to the information at its disposal concerning the rates for rented accommodation, the Court awards the applicant on an equitable basis for costs of alternative housing an amount of GBP 600, such sum to be converted into Turkish liras at the rate applicable at the date of payment. B. Non-pecuniary damage 101. Referring to the destruction of her home and possessions, expulsion from her village and her inability to return there, the applicant claimed GBP 50,000 for non-pecuniary damage. 102. The Government, rejecting that any violations had occurred, submitted that no award for non-pecuniary damage should be awarded and that, if such an award was to be made, the Court should take into account the economic circumstances prevailing in Turkey. 103. The Court considers that an award should be made in respect of non-pecuniary damage bearing in mind the seriousness of the violations which it has found in respect of Articles 3, 8 and 13 of the Convention and Article 1 of Protocol No. 1 (see §§ 56, 61 and 69). Additionally, the applicant was hindered in the effective exercise of her right of petition under the Convention (see § 82). 104. The Court awards the applicant GBP 10,000 for non-pecuniary damage, to be converted into Turkish liras at the rate applicable at the date of payment. C. Costs and expenses 105. The applicant claimed a total of GBP 17,881.40 for fees and costs incurred in bringing the application, less legal aid received from the Council of Europe of 7,500 French francs (FRF). A sum of GBP 5,075.16 was claimed in respect of fees and costs incurred by lawyers in Turkey and GBP 3,000 in respect of the Kurdish Human Rights Project (KHRP). 106. The Government submitted that the claims for costs and fees were excessive and unsubstantiated. They disputed that any sums should be awarded in respect of the role of the KHRP. 107. The Court is not persuaded that the fees claimed in respect of the KHRP were necessarily incurred. Deciding on an equitable basis and having regard to the details of the claims submitted by the applicant, the Court awards the applicant the sum of GBP 14,900 together with any value-added tax that may be chargeable, less the 7,500 FRF received by way of legal aid from the Council of Europe, such sum to be paid into the sterling bank account in the United Kingdom as set out in her just satisfaction claim. D. Default interest 108. The Court considers it appropriate to take the statutory rate of interest applicable in the United Kingdom at the adoption of the present judgment, namely 7.5% per annum. | The Court found in particular that the destruction of the applicant’s home and possessions by security forces amounted to inhuman treatment contrary to Article 3 (prohibition of inhuman or degrading treatment) of the Convention. It held that, even in the most difficult of circumstances, such as the fight against organised terrorism and crime, the Convention prohibits in absolute terms treatment contrary to this provision. Noting the circumstances in which the applicant’s home and possessions had been destroyed as well as her personal circumstances, the Court considered that the destruction of the applicant’s home and possessions by security forces must have caused her suffering of sufficient severity to categorise the acts complained of as inhuman. Moreover, having established that security forces were responsible for the destruction of the applicant’s home and possessions, the Court also held that there had been a violation of Article 8 (right to respect for home) of the Convention and a violation of Article 1 (protection of property) of Protocol No. 1 to the Convention. |
113 | Domestic violence / abuse | II. RELEVANT DOMESTIC LAW AND PRACTICE Probation 61. Imprisonment is used in Scotland only where there is no alternative. One alternative is probation, which was at the relevant time imposed under section 384 of the Criminal Procedure ( Scotland ) Act 1975. When an offender is placed on probation he is allowed to retain his liberty during the period of probation but must comply with the requirements of the probation order. In all cases the order requires the offender to be of good behaviour, conform to the directions of the supervising officer and to inform the supervising officer if he changes residence or employment. Other requirements may be imposed, such as conditions as to the place of residence. If the offender fails to comply with requirements of the probation order, that failure may be reported to the sentencing court by the supervisory officer or other responsible officials of the Social Work Department. The supervising officer has a degree of discretion where there is an apparent breach of the order. He may warn the probationer about the conduct if he considers a warning is likely to alter the probationer’s behaviour. If he reports the matter to the court, the court then investigates the matter. If the failure is proved to its satisfaction, the court can impose a variety of penalties including sentencing the probationer to imprisonment for the offence for which he was placed on probation. Child care provisions 62. The care and protection of children in Scotland was governed for most of the relevant period by the Social Work ( Scotland ) Act 1968 (the “1968 Act”). 63. There was a duty on local authorities under section 15(1) of the 1968 Act to receive a child under 17 into care when it appeared to an authority that his parent or guardian was unable, by reasons of illness, mental disorder or other circumstance, from providing proper accommodation, maintenance and upbringing. The test was whether the intervention was necessary in the interests of the welfare of the child. Compulsory measures of care were also required under section 32 for children in need, including those who were suffering unnecessarily or were the victims of cruelty. Under section 37(1), anyone with reasonable cause to believe a child fell into this category could inform the Reporter to the Children’s Panel of the matter. 64. The Children’s Panel was a tribunal specifically designed to cope with cases involving children. The Reporter had investigative powers to establish the condition of the welfare of the child and had three options: to take no further action, to refer the case to the Social Work Department for them to give guidance or support, or to convene a Children’s Hearing. The Children’s Panel had the power to order the child to submit to a supervision requirement in accordance with such conditions as it saw fit or to reside in a special establishment. 65. After the entry into force of the Children Act 1975, the local authority had a duty to cause inquiries to be made, unless it did not deem them necessary. 66. Under section 37(2) of the 1968 Act, a police constable or other person authorised by a court or justice of the peace could take a child to “a place of safety”, e.g. if offences had been committed in relation to the child, including cruelty or the infliction of unnecessary suffering. Remedies available to victims of abuse Civil actions 67. Physical or sexual abuse of a child will generally constitute a civil wrong (such as assault), as well as a criminal offence, and give rise to an action for damages by the perpetrator. 68. Actions in civil damages may also lie against the social work department (local authority) either in respect of alleged wrongdoing (e.g. negligence, or wilful abuse of power) for its own actions or vicariously for the actions of its staff. 69. Under Scots law, a body carrying out statutory functions will be liable in damages to a person affected by its performance or non-performance of those functions (in the absence of a wilful disregard of its duties) only if the statute expressly or impliedly provides for such a liability, or the relationship between the statutory body and the person in question is of such a nature as to create a common law duty of care, and the statutory body violated that duty (i.e. was negligent). 70. As set out in Z. and Others v. the United Kingdom [GC], (no. 29392/95, ECHR 2001-V), negligence arises in specific categories of situations. These categories are capable of being extended. There are three elements to the tort ( delict ) of negligence: a duty of care, breach of the duty of care and damage. The duty of care may be described as the concept which defines the categories of relationships in which the law may impose liability on a defendant in damages if he or she is shown to have acted carelessly. To show a duty of care, the claimant must indicate that the situation comes within an existing established category of cases where a duty of care has been held to exist. In novel situations, in order to show a duty of care, the claimant must satisfy a threefold test, establishing: – that damage to the claimant was foreseeable; – that the claimant was in an appropriate relationship of proximity to the defendant; and – that it is fair, just and reasonable to impose liability on the defendant. The leading case is Caparo Industries v. Dickman ([1990] 2 AC 605). 71. If the courts decide that as a matter of law there is no duty of care owed in a particular situation, that decision will (subject to the doctrine of precedent) apply in future cases where the parties are in the same relationship. 72. The decision in X and Others v. Bedfordshire County Council ([1995] 3 AER 353) is the leading authority in the United Kingdom in this area. The House of Lords there held that local authorities could not be sued for negligence or for breach of statutory duty in respect of the discharge of their functions concerning the welfare of children. The children in that case had suffered severe neglect and abuse from their parents and had alleged that the local authority had failed to protect them, inter alia, by not exercising their power to take them into care at an earlier stage. As regards the claims that the local authority owed a duty of care to the applicants pursuant to the tort of negligence, Lord Browne-Wilkinson in his leading judgment found that no duty of care arose as it was not fair, just or reasonable to impose one on the local authority in their exercise of this aspect of their duties. 73. More recently, in the case of W. and Others v. Essex County Council ([1998] 3 AER 111) in a case concerning the claims of a family, parents and children, that they had suffered abuse and damage due to the foster placement in their home by the local authority of a 15 year old boy who was a suspected sexual abuser, the Court of Appeal held that a duty of care lay towards the children of the family, while the House of Lords on 16 March 2000 ([2000] 2 WLR 601) held that the parents could also arguably claim that they were owed a duty of care. The House of Lords had also given judgment on 17 June 1999 in Barrett v. the London Borough of Enfield ([1999] 3 WLR 79). That case concerned the claims of the plaintiff, who had been in care from the age of ten months to seventeen years, that the local authority had negligently failed to safeguard his welfare causing him deep-seated psychiatric problems. The local authority had applied to strike out the case as disclosing no cause of action. The House of Lords, upholding the plaintiff’s appeal, unanimously held that the case of X and Others v. Bedfordshire County Council did not in the circumstances of this case prevent a claim of negligence being brought against a local authority by a child formerly in its care. Criminal Injuries Compensation 74. The Criminal Injuries Compensation Authority (known at the relevant time as the Criminal Injuries Compensation Board – CICB) may make an award where it is satisfied on the balance of probabilities that an applicant is a victim of a criminal offence and suffered the harm alleged. Payments of some 210 million GBP are paid out each year. However, under the rules in force until 1 October 1979, there was a complete bar on claims where the victim and the assailant were living together at the same time as members of the family. Judicial review 75. The acts, omissions and decisions of social work agencies carrying out statutory functions in connection with the welfare of children in Scotland are subject to judicial review by the Court of Session. Decisions by the local authority, for example, concerning the place of residence of children or recording the name of an abuser on a register have been quashed. Damages may be awarded in such proceedings. Local Government Ombudsman 76. Persons aggrieved by the actions or omissions of social work agencies may complain to the Commissioner for Local Administration in Scotland whose functions include investigation of written complaints by persons who claim to have suffered from the maladministration of local authorities (Part II of the Local Government (Scotland) 1975 as amended). The Local Government Ombudsman may recommend an appropriate remedy, including the payment of compensation. Though the local authority is not legally obliged to pay the compensation recommended, it is the general practice to do so. 77. There are restrictions on the investigations which may be conducted. Section 24(4) of the 1975 Act above requires a person to bring a complaint within 12 months from the day on which the complainant had notice of the matters concerned, though there is a discretion to consider complaints outside this time-limit if the Ombudsman considers it reasonable to do so. He may not investigate any matter in which the person aggrieved has or had a remedy by way of proceedings in any court of law (section 24(6)c). THE LAW I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION 78. Article 3 of the Convention provides: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” A. The parties’ submissions 1. The applicants 79. The applicants submitted that taken as a whole the evidence established that they were abused by W.H., that the abuse continued after January 1977, that there were material faults in the handling of the situation by the social services and that they sustained loss and damage as a result. They submitted that the local authority was aware of proven sexual abuse in January 1977 in relation to E. and L. and that this had been ongoing for some time before January 1977. They therefore knew of the risk of future ill-treatment to the children and ought to have been aware of the continuation of actual abuse. 80. The local authority failed however to take the protective measures necessary and provided for in the statutory framework. Already in January 1977 there were grounds for referral of the children to the Reporter to the Children’s Panel due to the serious concerns for their welfare (the mother was unable to cope, school attendance was atrocious, E. had attempted suicide, and E. and L. had been sexually abused). A hearing would then have been held and the situation properly investigated. The failure to refer the children precluded further steps being taken to protect their welfare. 81. There was also a failure properly to supervise W.H.’s probation. It was noted that he had been found in the home and yet no further investigation into the situation occurred. No consideration was given either to a referral to the Reporter on the basis that a convicted sexual offender had been in contact with the household. Nor did L.’s known behaviour (running away, truancy and offending) lead the social services to hold a multidisciplinary conference to investigate the cause of her behaviour while information about the background of sexual abuse by W.H. was not passed on by the social services to relevant agencies including the Children’s Panel when it dealt with L. concerning truancy in 1978 and care measures in 1979. 82. The applicants submitted that the local authority should have been aware of the risk of continued abuse, arguing that there was recognition at the time that sexual abuse occurred in families, that W.H. was found guilty of serious sexual offences of abuse which had been going on for some time and the recorded suspicion that he continued to cohabit in the home. It should also have been apparent to the local authority that there was a possible connection between the disturbed behaviour of E. and L. and ongoing sexual abuse. No steps were taken to talk individually to the children, social work concerns seeming to concentrate on matters of rent and finance. Visits by social workers were also made at regular and pre-arranged times which allowed W.H. to evade notice most of the time. 2. The Government 83. The Government did not consider that it would be appropriate for the Court in assessing to what extent the applicants has suffered ill-treatment to go beyond the conclusions of the domestic courts, which had found W.H. guilty of specific offences against E., L. and T. in 1977 and 1989, as this would involve finding W.H. guilty of serious criminal offences in proceedings to which he was not a party. As the second applicant H.’s allegations referred most vividly to ill-treatment at an early age, only mentioning in sweeping terms alleged continuation of abuse after the first conviction in 1977, his statements in their view did not provide an adequate basis for making specific findings about ill-treatment after 7 January 1977. The Government also pointed to the evidential difficulties arising from the allegations which concerned events occurring more than 20 years ago and the incomplete evidence which was available. However, they accepted that the conduct for which W.H. was convicted in respect of E., L. and T. amounted to inhuman or degrading treatment. 84. The Government understood that the applicants were alleging that from January 1977, and not before, the social services were or should have been aware that there was a risk of sexual abuse from W.H. continuing. They submitted that, following his conviction in January 1977, the Social Work Department had no evidence that W.H. was continuing to reside in the home. Although Mr R. had a suspicion that the mother was still cohabiting with W.H., he had visited the house very frequently without seeing W.H. and, in the view of the social work consultant Ms Anne Black, given the low level of awareness about child sexual abuse at the time, she would not have expected him to pursue his suspicions further. None of the applicants, when seen by the social workers or interviewed for various purposes, gave any hint that W.H. was still living in their home or continuing to abuse them. Though the social worker Mr M. recalled that he found W.H. leaving the home on two to three occasions, the notes indicated that the mother and W.H. both denied that he was living there, and he took the view that W.H.’s visits during the day while the children were at school was not tantamount to living there and did not constitute sufficient evidence of a breach of his probation to justify further action. 85. There were no other features which would have led the social workers to suspect that the applicants were still suffering abuse. They were concerned in the problems of school attendance and the difficulties arising from the mother’s illness and lack of money, and it was not unreasonable for the social workers to believe that the children’s problems at the time were associated with general problems arising from their environment. They submitted therefore that the social services did not have knowledge of any continuing abuse and, having regard to practice and understanding at the time, they could not legitimately be criticised for failing to appreciate that W.H. was continuing to abuse the applicants. 86. The Government agreed with the applicants that the social services’ actions were nonetheless inadequate in certain respects, particularly with regard to the support offered to the applicants after W.H.’s conviction in 1977. The most serious omission was the failure to make a reference to the Reporter of the Children’s Hearing after that conviction. This would have been likely to have led to a supervision order in respect of L., leading to closer contact with her and the family. Further, there should have been greater vigilance in supervising W.H. with less reliance on the assurances of W.H. and the mother that he was not living in the home, and the background report on E. prepared for court in June 1977, and the social enquiry report on L. prepared in January 1978 and in April 1979 should have referred to the previous circumstances surrounding the disclosure of abuse and the conviction of W.H.; there should have been social work input at the case conference meeting held in relation to L. in March 1979; and the visit by the police to L. in April 1979 should have led to discussion about the situation at home. 87. However, notwithstanding these failings, it could not be said that any different conduct on the part of the authorities would have necessarily led to discovery of any further incidents of abuse by W.H. There had been ongoing contact between the applicants and the social services over this period without any disclosures being made. Similarly, even if the possibility of a breach of probation proceedings had been more seriously considered, the social services still had had no concrete evidence that he was living in the home. In the circumstances, it could not be said that there was a violation of Article 3 in respect of the applicants. B. The Court’s assessment 1. General principles 88. Article 3 enshrines one of the most fundamental values of a democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment. 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 together with Article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment, including such ill-treatment administered by private individuals (see A. v. the United Kingdom judgment of 23 September 1998, Reports of Judgments and Decisions 1998 ‑ VI, p. 2699, § 22). These measures should provide effective protection, in particular, of children and other vulnerable persons, and include reasonable steps to prevent ill-treatment of which the authorities had or ought to have had knowledge ( mutatis mutandis, Osman v. the United Kingdom, judgment of 28 October 1998, Reports 1998-VIII, § 116). Thus a failure, over four and a half years, to protect children from serious neglect and abuse of which the local authority were aware disclosed a breach of Article 3 of the Convention in the case of Z. and Others v. the United Kingdom ([GC] no. 29392/95, ECHR 2001-V, §§ 74-75). 2. Application in the present case 89. The Court recalls that the four applicants allege that they suffered sexual and physical abuse from W.H. over a long period of time. There is no doubt that the treatment described (see paragraph 43) falls within the scope of Article 3 of the Convention as inhuman and degrading treatment. Certain of the assaults on E., L. and T. were subject to criminal proceedings and W.H. was convicted in January 1977 and July 1989 in respect of seven offences. 90. The Government have argued that no findings of ill-treatment should be made beyond those of the criminal courts as this would be tantamount to finding W.H. guilty of further criminal offences in proceedings to which he is not a party. The Court notes that the Government do not contest the applicants’ allegations or argue that they are false or erroneous or unsubstantiated. The Criminal Injuries Compensation Board indeed made substantial awards to E., L. and T., which would imply that the allegations of long standing abuse were upheld. It is true that no award was made to the second applicant, H., and that no charges concerning him were ever brought against W.H.. It does not appear that H. made any disclosure about physical abuse until relatively late, in the context of the civil proceedings brought in 1992. However, the statements of the other applicants, his sisters, support his claims concerning the violence and physical battering that occurred in the home and the psychological reports submitted are consistent with a history of abuse. 91. The Court is satisfied that it may make a finding on the materials before it, which are uncontroverted, that the applicants suffered abuse as described. It does not consider that this may be construed as any determination of guilt of criminal offences on the part of W.H., any more than the accepted findings of ill-treatment of the child applicants in the case of Z. and Others v. the United Kingdom (cited above) disclosed any attribution of criminal responsibility on the part of the children’s parents. Criminal law liability is distinct from international law responsibility under the Convention, this Court not being concerned with reaching any findings as to guilt or innocence under domestic law (see, for example, Avşar v. Turkey, no. 25657/94, ECHR 2001, § 284). 92. The question therefore arises whether the local authority (acting through its Social Work Department) was, or ought to have been, aware that the applicants were suffering or at risk of abuse and, if so, whether they took the steps reasonably available to them to protect them from that abuse. 93. The parties appear agreed that it is the period after January 1977 which is in issue, no disclosures or evidence of sexual or physical abuse arising before E.’s overdose and L’. running away from home in November 1976 and January 1977 respectively. Though in certain statements E. has a recollection of making a complaint about W.H. in or about 1974, her memory is uncertain on the details and the applicants do not rely on this as proving knowledge of the abuse before 1977. The parties do disagree whether the authorities should have been aware of the abuse that continued thereafter. 94. The Court recalls that until T. made disclosures of sexual abuse to her social worker in 1988 there is no indication that any of the children in the house made any complaint about W.H.’s ongoing assaults after January 1977. The Government take the view that there was nothing to alert the social workers that he continued to be a risk and that in the light of knowledge and practice at the time the fact that he had been found in the family home after the conviction in January 1977 would not have been regarded as any significant cause for alarm or have provided sufficient ground for action against him. 95. However, the Court notes that the Government accept that even if it was not a formal condition of his probation it would have been understood that W.H. was no longer permitted to reside in the applicant’s home. An examination of the materials reveals the following factors: – W.H. had been charged with a series of serious sexual offences against two children of the family indicating a background of repetitive offending; – the disclosures made by E. in hospital indicated that there was also an element of physical abuse present in the home; – E. and L. both showed serious levels of distress and disturbance arising out of the situation of known abuse in the home, which had contributed to E. taking an overdose of pills and L. running away; – the social enquiry report dated 28 January 1977 produced by the social worker Mr R. noted that W.H. did not appear to accept the serious nature of the charges and that the mother also did not accept the charges against him and talked of marriage; – that report concluded that it would be necessary for firm control to be exercised over the accused for a period of time; – the notes of Mr R. gave the opinion in March 1977 that the mother was still cohabiting; – the affidavits of the social worker Mr M. indicate that he regarded W.H. as dishonest and likely not to tell the truth when it suited him; – Mr M. in the same affidavits recalled meeting W.H. leaving the home two or three times when he called unexpectedly; – a social enquiry report dated 1 June 1977 drawn up in respect of E.’s appearance for criminal damage noted that she had left home after a scene with the man cohabiting with her mother, at a date unspecified but which would appear to be about March 1977 (see paragraph 22); 96. The Court is satisfied that from these elements that the social services should have been aware that the situation in the family disclosed a history of past sexual and physical abuse from W.H. and that, notwithstanding the probation order, he was continuing to have close contact with the family, including the children. Even if the social services were not aware he was inflicting abuse at this time, they should have been aware that the children remained at potential risk. The fact that at the relevant time there was not the knowledge of the prevalence of, and persistence of, sexual offenders victimising children within a family that there exists now, is not significant in this case where, as the applicants emphasise, the social services knew that there had been incidences of sexual abuse resulting in criminal offences and were under an obligation to monitor the offender’s conduct in the aftermath of the conviction. 97. Yet the social services failed to take steps which would have enabled them to discover the exact extent of the problem and, potentially, to prevent further abuse taking place. The Government have accepted that after the initial disclosures the social services should have worked with both E. and L. who had shown significant distress at the situation at home which could have led to further understanding of family dynamics; and, most importantly, that the social services should have referred L. to the Reporter of the Children’s Hearing, which could have led to a supervision requirement over one or more of the children who had been living with a known and convicted offender. 98. In addition, the Government have accepted that more should have been done to investigate the possible breach by W.H. of the probation order, that there was a consistent failure to place the full and relevant details of the family situation before the Sheriff’s Court or Children’s Hearing when the applicant children were the subject of a specific examination in the context of offending and truancy (see paragraphs 22, 26 and 31), and that there was no effective co-operation or exchange of information between the school authorities which were attempting to deal with a persistent truancy problem and the social services who had access to the information about the wider family situation and history. It is also not apparent that E.’s disclosures at the hospital in December 1976 were passed to the social services or that, if they were, they led to any response. 99. The Court recalls that the Government argued that notwithstanding any acknowledged shortcomings it has not been shown that matters would have turned out any differently, in other words, that fuller co-operation and communication between the authorities under the duty to protect the applicants and closer monitoring and supervision of the family would not necessarily have either uncovered the abuse or prevented it. The test under Article 3 however does not require it to be shown that “but for” the failing or omission of the public authority ill-treatment would not have happened. A failure to take reasonably available measures which could have had a real prospect of altering the outcome or mitigating the harm is sufficient to engage the responsibility of the State. 100. The Court is satisfied that the pattern of lack of investigation, communication and co-operation by the relevant authorities disclosed in this case must be regarded as having had a significant influence on the course of events and that proper and effective management of their responsibilities might, judged reasonably, have been expected to avoid, or at least, minimise the risk or the damage suffered. 101. There has, accordingly, been a breach of Article 3 in respect of the applicants in this case. II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 102. Article 8 of the Convention provides as relevant: “1. Everyone has the right to respect for his private and family life, ... 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 103. The applicants referred to the ill-treatment and assaults to which they were victim and claimed that the authorities had failed in their positive obligation to protect them from damage to their private life. 104. The Government submitted that the deterrent sanctions against sexual and physical abuse and the statutory system of child protection fulfilled any positive obligation imposed by this provision to protect the applicants from abuse by W.H. 105. Referring to its finding of a violation of Article 3 above, the Court finds that no separate issue arises under this Convention provision. III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION 106. 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.” A. The parties’ submissions 1. The applicants 107. The applicants submitted that Article 13 required that they have available to them a means for establishing the liability of State officials for acts or omissions involving a breach of their rights and the possibility of obtaining compensation for the wrong suffered. Advisory remedies such as complaints to the ombudsman were not effective, while the CICB could not attribute blame to the local authority or hold them to account. The compensation paid by the CICB to three applicants related to a separate wrong and not to the substance of their complaint before the Court. It also did not cover pecuniary damage for loss of earnings. The applicants were precluded from suing the local authority for damages in negligence due to the effect of the X. and Others v. Bedfordshire County Council case (cited above). 2. The Government 108. The Government submitted that the applicants did have at their disposal an effective remedy in respect of any alleged failure of the local authority to protect them from abuse. In their view, there was a margin of appreciation available to Contracting States as to how to satisfy the two main elements - a mechanism for establishing liability and the availability of compensation at least for the non-pecuniary damage suffered thereby. Where the damage was caused directly by a perpetrator of abuse and the liability of the local authority was subsidiary or derivative, the requirement for compensation could be met through remedies against the abuser himself or by the State providing awards under a compensation scheme such as the CICB. The applicants could also have obtained a determination of liability through judicial review proceedings, civil proceedings against the local authority (which they chose to withdraw) and the local authority ombudsman. It was not apparent that the applicants’ civil claims would have been rejected for lack of a cause of action as they arguably raised operational matters not affected by the ruling in the X. and Others case, though in the Government’s view it would have failed on the merits. In any event, such proceedings would have provided a procedure by which the applicants’ claims could have been tested in a judicial procedure. As the applicants E., L. and T. had in this case received GBP 25,000, they had already received an effective compensatory remedy. B. The Court’s assessment 109. As the Court has stated on many occasions, 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 might happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their Convention obligations under this provision. The scope of the obligation under Article 13 varies depending on the nature of the applicant’s complaint under the Convention. Nevertheless, the remedy required by Article 13 must be “effective” in practice as well as in law. In particular its exercise must not be unjustifiably hindered by the acts or omissions of the authorities of the respondent State (see Aksoy v. Turkey, judgment of 18 December 1996, Reports 1996-VI, p. 2286, § 95; Aydın v. Turkey, judgment of 25 September 1997, Reports 1997-VI, pp. 1895-96, § 103; Kaya v. Turkey, judgment of 19 February 1998, Reports 1998-I, pp. 329-30, § 106). 110. Where alleged failure by the authorities to protect persons from the acts of others is concerned, Article 13 may not always require that the authorities undertake the responsibility for investigating the allegations. There should however be available to the victim or the victim’s family a mechanism for establishing any liability of State officials or bodies for acts or omissions involving the breach of their rights under the Convention. Furthermore, in the case of a breach of Articles 2 and 3 of the Convention, which rank as the most fundamental provisions of the Convention, compensation for the non-pecuniary damage flowing from the breach should in principle be available as part of the range of redress (see Z. and Others v. the United Kingdom [GC], no. 29392/95, ECHR 2001-V, § 109; Keenan v. the United Kingdom, no. 27229/95, (Sect. 3), ECHR 2001-III, § 129). 111. In the present case, the Court has found that the Government failed in their obligations under Article 3 of the Convention to take reasonable steps to protect the applicants from inhuman and degrading treatment. The applicants’ complaints in this regard are therefore “arguable” for the purposes of Article 13 (see Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no. 131, p. 23, § 52; the Kaya judgment, cited above, § 107, and Yaşa v. Turkey, judgment of 2 September 1998, Reports 1998-VI, p. 2442, § 113). 112. Though awards were made to three applicants by the CICB and the applicants accept that this may be relevant to any subsequent question of just satisfaction, the Board cannot be regarded as providing a mechanism for determining the liability of the social services for any negligence towards the children. In any event, while it provided some compensation to E., L. and T., no award at all was made to H. and the awards that were made did not take into consideration any pecuniary loss flowing from the abuse suffered. Similarly, while a complaint to the local authority ombudsman, at the appropriate time, might have led to an investigation of certain aspects of social services management of the case, it would not have provided a binding determination, the ombudsman only having the power to make recommendations. Furthermore, it would appear that, time considerations aside, the ombudsman in response to the applicants’ complaints gave his view that he did not have jurisdiction since it appeared that they had the possibility of taking action in the courts. 113. The Court recalls that, in general, actions in the domestic courts for damages may provide an effective remedy in cases of alleged unlawfulness or negligence by public authorities (see, for example, Hugh Jordan v. the United Kingdom, no. 24746/94, (Sect. 3), judgment of 4 May 2001, §§ 162-163, extracts published in an annex to McKerr v. the United Kingdom, ECHR 2001-III). In the present case, the applicants did lodge a civil action in negligence in the Scottish courts but withdrew their claims on 4 January 1996 pursuant to counsel’s advice that they were doomed to failure in the light of the X. and Others case decided by the House of Lords on 29 June 1995. This decision, which was the subject of consideration by the Grand Chamber in the above-mentioned Z. and Others v. the United Kingdom case, had held that no duty of care existed in respect of the child applicants’ claims that the local authority in that case had been negligent in failing to remove them from their home where they were victims of abuse and neglect. 114. The Government submitted that it was not correct to assert that this House of Lords decision prevented all claims in negligence against local authorities in the exercise of their child protection duties, and argued that it could not be regarded as beyond doubt that these applicants would have failed as, in the case of these applicants, the social services arguably were negligent in the way they approached operational, as well, as policy matters. 115. It is true that since the case of X. and Others v. Bedfordshire County Council there have been further cases in the English courts which indicate that a duty of care may arise where, for example, the social services have failed to prevent foreseeable damage to children either already in their care or affected in other ways by their exercise of their duties (see paragraph 73). However, these developments took place some years after the X. and Others case, which at the time gave the impression that the highest judicial authority had ruled out the possibility of suing local authorities in the exercise of their child protection functions on grounds of public policy. If taking action at the present time, the applicants might, at least on arguable grounds, have a claim to a duty of care under domestic law, reinforced by the ability under the Human Rights Act to rely directly on the provisions of the Convention. The Court is not satisfied that this was the case at the relevant time in 1996. While the Government have also made reference to the possibility of judicial review proceedings, these would only have been available to challenge the social services’ actions at the time that they occurred. The applicant children were not in a position where they could make use of such redress. 116. The Court accordingly finds that the applicants did not have at their disposal the means of obtaining a determination of their allegations that the local authority failed to protect them from inhuman and degrading treatment. There has been in that respect a violation of Article 13 of the Convention. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 117. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 1. The parties’ submissions 118. The applicants submitted that they were entitled to awards for pecuniary and non-pecuniary damage. While they accepted that the CICB awards could be taken into account in assessing loss, these did not provide full compensation for the severe abuse which took place over many years. They claimed in respect of the failure to protect them from abuse and for anxiety and frustration an additional GBP 20,000 for E., GBP 37,000 for L. and GBP 5,000 for T., while H. who had not previously obtained any compensation claimed GBP 20,000. The applicants claimed for pecuniary damage sums for loss of earnings because of the effect that the abuse had had on their wage earning potential due to their resulting educational and psychological difficulties – GBP 25,927.55 for E., who has only been able to obtain occasional poorly paid seasonal work, GBP 20,000 for H., who has only been able to obtain poorly paid and physically demanding work, GBP 78,548.15 for L. who has only been able to work on a part time basis and GBP 68,760.64 for T., who has been unable to work for long periods. The calculations submitted by the applicants were stated as taking into account, inter alia, the length of time over which the local authority were at fault and the earnings in fact obtained by the applicants. 119. The Government submitted that any finding of a violation would in itself constitute just satisfaction. They did not consider that any clear causal connection could be shown in respect of any alleged pecuniary damage and submitted that the applicants’ calculations were artificial and hypothetical. As regards any non-pecuniary damage it would be necessary to identify precisely the damage suffered by the applicants which would not have occurred but for the alleged violation, which was in the circumstances of this case difficult bearing in mind the background of abuse and deprivation already suffered by the applicants prior to January 1977. Furthermore, the compensation paid by the CICB should be deducted from any award. 2. The Court’s assessment 120. As regards the applicants’ claims for pecuniary loss, the Court’s case-law establishes that there must be a clear causal connection between the damage claimed by the applicant and the violation of the Convention and that this may, in the appropriate case, include compensation in respect of loss of earnings (see, amongst other authorities, Barberà, Messegué and Jabardo v. Spain, judgment of 13 June 1994 (Article 50), Series A no. 285 ‑ C, pp. 57-58, §§ 16-20; Cakıcı v. Turkey, judgment of 8 July 1999, Reports 1999-IV, § 127). 121. A precise calculation of the sums necessary to make complete reparation (restitutio in integrum ) in respect of the pecuniary losses suffered by applicants may be prevented by the inherently uncertain character of the damage flowing from the violation (Young, James and Webster v. the United Kingdom (former Article 50), judgment of 18 October 1982, Series A no. 55, p. 7, § 11). An award may still be made notwithstanding the large number of imponderables involved in the assessment of future losses, though the greater the lapse of time involved the more uncertain the link becomes between the breach and the damage. The question to be decided in such cases is the level of just satisfaction, in respect of both past and future pecuniary loss, which it is necessary to award to each applicant, the matter to be determined by the Court at its discretion, having regard to what is equitable (Sunday Times v. the United Kingdom (former Article 50) judgment of 6 November 1989, Series A no. 38, p. 9, § 15; Lustig-Prean and Beckett v. the United Kingdom (Article 41), judgment of 25 July 2000, §§ 22-23). 122. In the present case, the applicants have submitted reports and assessments arguing that their wage-earning capacity, even for those of them who are currently in employment, has been seriously damaged by the past abuse which they suffered. The Court observes however that its finding of a violation relates to the period after January 1977, when the local authority should have been aware that they were at risk of abuse. The applicants had already suffered long periods of violence and assault - E. and H. from 1967, L. from about 1969 and T. from 1971. As E. left home in or about March 1977, H. in or about 1978, L. in 1979 and T. in 1984. The period of abuse suffered by the oldest three applicants therefore after January 1977 was relatively short compared with the prior period. 123. While the reports submitted by the applicants attempt to attribute pecuniary loss to the local authority by taking into account this time element, the Court considers that the psychological injury and the ongoing impact on their ability to lead normal lives would almost certainly have existed even if no abuse had occurred after 1977. It appears to this Court impossible to assess what additional damage was caused after that date. The Court also considers that it must have regard to the fact that, though the local authority did fail to take reasonable steps to avoid the risk, this is not a case where those failings can be regarded as being causally connected with the totality of any damage suffered during that period. If the local authority had acted with more care in monitoring and supervising the family, though this would have increased the likelihood of uncovering the ongoing abuse, it can only be speculative as to at what stage this would have occurred and how effective the measures taken would have been. 124. In the light of these uncertainties and the difficulties of attributing any specific degree of damage to the failings of the local authority, the Court has decided to award a global figure, for pecuniary and non-pecuniary damage together, taking into account as conceded by the applicants the awards made in respect of the non-pecuniary damage by the CICB. On an equitable basis therefore, it awards the sum of 16,000 euros (EUR) each to E., H. and L. and the sum of EUR 32,000 to T. B. Costs and expenses 125. The applicants claimed a total of GBP 52,146.65 (inclusive of VAT), including GBP 29,554.74 for solicitors’ fees, covering their work on behalf of the applicants from 1994 (applications to the CICB, the Legal Aid Board, local authority ombudsman and the European Commission and Court of Human Rights), GBP 21,150 for counsels’ fees, GBP 4,022.91 fees to the social work consultant for his reports and GBP 1,350 for medical reports on the applicants. 126. The Government submitted that the sums claimed were excessive and that if an award was made it should not be more than GBP 20,000. 127. Having regard to the complexity of the case and the amounts awarded in other cases, and making an assessment on an equitable basis, the Court awards EUR 64,000, inclusive of VAT. C. Default interest 128. 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 social services had failed to protect the children, in violation of Article 3 (prohibition of inhuman or degrading treatment) of the Convention, and that there had been no effective remedy, in violation of Article 13 (right to an effective remedy) of the Convention. |
81 | Parental authority, child custody and access rights | II. RELEVANT DOMESTIC LAW 81. Section 1684 of the German Civil Code provides: Contact of the child with its parents “(1) The child has the right to contact with each parent; each parent has a duty and a right of contact with the child. (2) The parents must refrain from everything that renders more difficult the relationship of the child to the other parent or the upbringing. Similar provisions apply if the child is in the charge of another person. (3) The family court may decide on the scope of the right of contact and make more detailed provisions on its exercise, including provisions affecting third parties. It may enjoin the parties by orders to fulfil the duty defined in subsection (2). If the obligation in accordance with subsection (2) is considerably violated permanently or repeatedly, the family court may also order custodianship for the implementation of contact ( contact custodianship). Access custodianship includes the right to demand surrender of the child to implement access and to determine where the child is to be for the duration of access. The order is to be time-limited... (4) The family court may restrict or exclude the right of contact or the enforcement of earlier decisions on the right of contact, to the extent that this is necessary for the best interests of the child. A decision that restricts the right of contact or its enforcement for a long period or permanently may only be made if otherwise the best interests of the child would be endangered. The family court may in particular order that contact may take place only if a third party who is prepared to cooperate is present. .. .” 82. Under section 1626a of the Civil Code as in force until 18 May 2013, the parents of a minor child born out of wedlock exercised joint custody if they made a declaration to that effect or if they married. Otherwise the mother obtained sole custody. 83. Section 155 of the Act on Procedure in Family Matters ( Gesetz über das Verfahren in Familiensachen und in den Angelegenheiten der freiwilligen Gerichtsbarkeit ) as in force since 1 September 2009 reads as follows: “(1) Parent and child matters referring to the child ’ s place of abode, contact rights or the surrender of the child, as well as proceedings based on a threat to the child ’ s welfare must be conducted as a matter of priority and expediently. (2) In proceedings pursuant to subsection (1) the court shall discuss the case with the parties at a hearing. The hearing shall take place at the latest one month after the proceedings have been instituted. The court shall hear the Youth Office during this hearing. This hearing may only be postponed for compelling reasons. Proof of the reasons for the need for postponement must be furnished when the request for postponement is made. (3) ...” 84. Section 89 provides Administrative fines ( Ordnungsmittel ) “(1) In case of non-compliance with an enforcement order for the surrender of persons and for the regulation of contact, the court may impose an administrative fine ( Ordnungsgeld ) on the obligated party and in the event that the administrative fine cannot be collected it may order arrest for disobedience to court orders ( Ordnungshaft ). Where the imposition of an administrative fine lacks prospect of success, the court may order arrest. The order is taken by court decision. (2) The decision ordering the surrender of a person or the regulation of contacts shall indicate the consequences of any non-compliance with the enforcement order. (3) The amount of an individual administrative fine shall not exceed EUR 25,000 ... (4) No administrative measure shall be imposed if the obligated person submits reasons establishing that he cannot be held liable for the non-compliance ... ” 85. According to section 90 of that same law, decisions on contact rights shall not be executed by use of direct force against a child. 86. The Act on Protracted Court Proceedings and Criminal Investigations ( Gesetz über den Rechtsschutz bei überlangen Gerichtsverfahren und strafrechtlichen Ermittlungsverfahren, henceforth: the Remedy Act) entered into force on 3 December 2011. According to section 198, paragraph 1, of the Courts Constitution Act as amended by the Remedy Act, a party to proceedings who suffers a disadvantage from protracted proceedings is entitled to adequate monetary compensation. A prior objection to delay ( Verzögerungsrüge ), which has to be raised before the court whose proceedings are allegedly unduly delayed, is a prerequisite for a subsequent compensation claim. According to its Article 23 the Remedy Act applies to pending as well as to terminated proceedings whose duration may still become or has already become the subject of a complaint with this Court. In pending proceedings the objection to delay should be raised without delay, when the Remedy Act entered into force. In these cases the objection preserved a subsequent compensation claim even retroactively. For further details compare Taron v. Germany (dec.), no. 53126/07, §§ 29-26, 29 May 2012). THE LAW I. SCOPE OF THE COMPLAINT 87. In his submissions to the Court, the applicant complained about the domestic courts ’ failure to implement his contact rights in proceedings instituted on 19 May 2005. 88. The Government pointed out that the proceedings between 19 May 2005 and 22 March 2010 could not be re-examined by the Court as they had been the subject matter of the judgment given by the Court on 21 April 2011 ( Kuppinger, cited above). 89. The applicant submitted in reply that the previous proceedings before the Court exclusively concerned his complaint under Article 6 § 1 of the Convention about the excessive length of the proceedings, but not the complaint about the excessive length and lack of effectiveness under Article 8 of the Convention. The instant case thus clearly concerned distinct subject matter. 90. Article 35 § 2 ( b ) of the Convention provides: “The Court shall not deal with any application submitted under Article 34 that ... is substantially the same as a matter that has already been examined by the Court ... ” 91. The Court observes that in its judgment given on 21 April 2011 ( Kuppinger, cited above ), a Committee of the Court examined the applicant ’ s complaints under Articles 6 and 8 about the length of contact proceedings lasting from 19 May 2005 until 22 March 2010. The Court chose to examine this complaint solely under Article 6 of the Convention (see Kuppinger, cited above, § 37). The Court reiterates that a complaint is characterised by the facts alleged in it, not by the legal grounds or arguments relied on ( see, among other authorities, Guerra and Others v. Italy, 19 February 1998, § 44, Reports of Judgments and Decisions 1998 ‑ I; and Previti v. Italy (dec.), no. 45291/06, 8 December 2009 ). It follows that the complaint about the conduct of contact proceedings prior to 22 March 2010 is substantially the same as a matter that has already been examined by the Court in the above - mentioned judgment. 92. It follows that the complaint concerning the proceedings between 19 May 2005 and 22 March 2010 must be rejected under Article 35 §§ 2 (b) and 4 of the Convention as being substantially the same as a matter that has already been examined by the Court and that the Court is only competent to examine the proceedings which took place after that date. II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 93. Regarding the proceedings which took place after 22 March 2010, the applicant complained that the domestic authorities failed to implement his contact rights with his son, thus violating his right to respect for his family life as provided in Article 8 of the Convention, which reads as follows: “1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” 94. The Government contested that argument. 95. 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. A. Merits 1. Execution of the interim decision of 12 May 2010 ( a ) The applicant ’ s submissions 96. According to the applicant, the administrative fine imposed by the Frankfurt/Main District Court was ineffective and obviously inappropriate for implementing his contact rights. As was to be expected, the fine did not have any impact on the mother ’ s behaviour. There was, furthermore, no indication that the appointment of a contact custodian would change the mother ’ s refusal of contact. The applicant furthermore claimed that the length of the administrative fine proceedings had been excessive. (b) The Government ’ s submissions 97. The Government considered that the District Court had taken measures which could reasonably be expected to enable effectively the implementation of the contact decision of 12 May 2010. The sum of EUR 300, even though it may appear a small amount at first glance, represented an appropriate measure for promoting the child ’ s mother ’ s willingness to cooperate. Given the highly escalated conflict between the parents, it was already doubtful whether an administrative measure provided for by law could actually represent an appropriate means to enforce contact. The fact that his mother was exposed to administrative fine proceedings had rather intensified the child ’ s rejection of the applicant. Given the extremely complex and contentious situation, the District Court ’ s assessment of the degree of the mother ’ s accountability was comprehensible. Furthermore, it had to be taken into account that the measure was primarily aimed at sanctioning past behaviour, as the appointment of a contact custodian meant that further contraventions of the decision on contact rights were not to be expected. 98. The Government further submitted that the District Court took the decision on the administrative measures three and a half months after the applicant ’ s request. The fact that the District Court awaited the return of the case file before taking its decision on 12 November 2010 was not cause for objection given the complexity of the proceedings and the fact that the main proceedings had already been terminated on 1 September 2010. The joinder of the two requests lodged by the applicant on 21 July and 11 August 2010 served the purpose of enhancing the efficiency of the proceedings. The District Court judge had granted the case the highest priority and had even postponed her own holiday plans in order to be able to schedule the hearing at the earliest possible date. (c) The Court ’ s assessment 99. The Court reiterates that the mutual enjoyment by parent and child of each other ’ s company constitutes a fundamental element of “family life” within the meaning of Article 8 of the Convention (see, among other authorities, Monory v. Romania and Hungary, no. 71099/01, § 70, 5 April 2005 and Tsikakis v. Germany, no. 1521/06, § 74, 10 February 2011 ). 100. Furthermore, even though the primary object of Article 8 is to protect the individual against arbitrary action by public authorities, there are, in addition, positive obligations inherent in effective “respect” for family life. In relation to the State ’ s obligation to implement positive measures, the Court has held that Article 8 includes for parents a right that steps be taken to reunite them with their children and an obligation on the national authorities to facilitate such reunion (see, among other authorities, Ignaccolo-Zenide v. Romania, no. 31679/96, § 94, ECHR 2000-I; Nuutinen v. Finland, no. 32842/96, § 127, ECHR 2000-VIII; and Iglesias Gil and A.U.I. v. Spain, no. 56673/00, § 49, ECHR 2003-V). 101. In cases concerning the enforcement of decisions in the sphere of family law, the Court has repeatedly found that what is decisive is whether the national authorities have taken all necessary steps to facilitate the execution that can reasonably be demanded in the special circumstances of each case (see, mutatis mutandis, Hokkanen v. Finland, 23 September 1994, § 58, Series A no. 299 ‑ A; Ignaccolo-Zenide, cited above, § 96; Nuutinen, cited above, § 128; and Sylvester v. Austria, nos. 36812/97 and 40104/98, § 59, 24 April 2003). 102. In this context, the adequacy of a measure is to be judged by the swiftness of its implementation, as the passage of time can have irremediable consequences for relations between the child and the parent who do not cohabit (see Ignaccolo-Zenide, cited above, § 102). 103. Finally, the Court has held that although coercive measures against children are not desirable in this sensitive area, the use of sanctions must not be ruled out in the event of unlawful behaviour by the parent with whom the child lives (see Ignaccolo-Zenide, cited above, § 106; and Eberhard and M. v. Slovenia, no. 8673/05 and 9733/05, § 130, 1 December 2009 ). 104. Turning to the circumstances of the instant case, the Court notes that the Frankfurt Court of Appeal decided on 12 May 2010 that the applicant had the right to see his son for three hours on each of six specific dates between May and August 2010. These contact meetings were to be followed by unsupervised visits. On 21 July 2010 the applicant asked the District Court to impose an administrative fine of at least EUR 3,000 on the mother, as none of the visits had taken place as scheduled. On 11 August 2010 the applicant lodged a further request for the remaining dates. On 12 November 2010 the District Court, jointly ruling on both requests, imposed an overall administrative fine of EUR 300 on the mother for having contravened six times the decision on contact rights. Even though the mother paid this sum in June 2011, none of the supervised visits took place as scheduled. 105. Under the general principles set out above, it is the Court ’ s task to determine whether the domestic authorities took all necessary steps to facilitate the execution of the contact order of 12 May 2010 as could reasonably be demanded in the special circumstances of this case. The Court notes, at the outset, that the District Court ’ s decision contains no information on the financial situation of the mother. Nevertheless, it cannot but observe that the overall administrative fine of EUR 300 appears to be rather low, given that the pertinent provisions allowed for the imposition of a fine of up to EUR 25,000 for each individual case of non-compliance. It is thus doubtful whether this sanction could reasonably have been expected to have a coercive effect on the child ’ s mother, who had persistently prevented contact between the applicant and his son. The Court takes note of the District Court ’ s reasoning that even though the child ’ s mother was accountable for the failed contact, her personal responsibility proved to be minor, as the demands on her educational capabilities had been high and as she had been obliged “not only to reconsider her own stance on the problems within a few weeks, but also to change the child ’ s established pattern of behaviour” (see paragraph 30, above). 106. The Court observes in this context that the parties had agreed to institute supervised contact as early as 2005 and that the Frankfurt/Main District Court had first ordered such contact on 22 May 2007 (see Kuppinger, cited above, §§ 7, 16). Having regard to the fact that the mother must have been made aware during the previous court proceedings of her general obligation to allow the applicant contact to his son, it is difficult to follow the District ’ s Court ’ s reasoning that the mother had to reconsider her stance on the problems “within a few weeks”. The Court further observes that the decision contains no information on whether the mother had at least attempted to meet her obligations under the contact order by encouraging the child to meet the applicant. The Court finally observes that the Frankfurt Court of Appeal, in its decision given on 17 September 2014 (see paragraph 80, above), conceded that the administrative fine imposed on the mother might have been insufficient. 107. Even if it is possible that more severe sanctions would not have changed the mother ’ s general stance towards the applicant ’ s contact rights, this did not dispense the domestic authorities from their obligation to undertake all appropriate steps to facilitate contact. Finally, the Court is not convinced by the Government ’ s argument that it was unlikely that the situation would repeat itself, given that the family court had, in the meantime, set up contact custodianship. Even if a contact custodian had more effective means at his disposal than a mere supervisor, it is hardly conceivable that he would be able to achieve his task of implementing contact rights without a certain degree of cooperation on the mother ’ s side. 108. With regard to the swiftness of the enforcement proceedings, the Court observes that the proceedings lasted more than ten months from 21 July 2010, when the applicant lodged his first request to impose an administrative fine, until 1 June 2011, when the overall fine was paid. The Court notes that the District Court did not give a separate decision on the applicant ’ s first request, but awaited the submissions in reply to the subsequent requests before giving a decision. Given the special urgency of the subject matter, the Court is not convinced that the joinder, which caused a delay of several weeks, best served the interest of the efficiency of the proceedings. Furthermore, a delay of approximately one month occurred when the District Court awaited the return of the main case file from the Court of Appeal, even though the main proceedings before that Court had already been terminated six weeks before. It follows that this delay could have been avoided by a swifter dispatch of the case file. 109. Having regard to the facts of the case, including the passage of time, the best interests of the child, the criteria laid down in its own case ‑ law and the parties ’ submissions, the Court, notwithstanding the State ’ s margin of appreciation, concludes that the German authorities have failed to make adequate and effective efforts to execute the contact order of 12 May 2010. 110. There has accordingly been a violation of Article 8 of the Convention. 2. Execution of the decision of 1 September 2010 ( a ) The applicant ’ s submissions 111. According to the applicant, the implementation of contact custodianship had failed because of the custodian ’ s inappropriate and unprofessional behaviour. The proceedings on the discharge of the contact custodian had been inefficient and excessively long. The District Court had failed to take the necessary steps of contacting potential custodians who had previously expressed their readiness to accept this task. Furthermore, the District Court had failed to comply with its obligation under section 155 of the Act on Procedure in Family Matters to schedule a hearing within a month of receipt of the applicant ’ s request. Accordingly, the District Court could have taken a decision in 2010. 112. The applicant further submitted that the refusal to impose further administrative fines was arbitrary and did not comply with the domestic law. (b) The Government ’ s submissions 113. The Government submitted that the domestic courts did not fail to comply with their obligations under Article 8 of the Convention in respect of the proceedings on the applicant ’ s request to discharge the contact custodian and on his request for further administrative fines to be imposed on the mother. 114. The implementation of contact custodianship had failed on account of an open dispute between the applicant and the custodian. The proceedings on the discharge of the custodian had not been excessively long. The District Court ’ s attempts to organise a replacement for the custodian had ultimately failed due to a dispute between the applicant and the potential contact custodians. As the contact custodianship ended on 31 March 2011, the decision of 29 June 2011 was of a purely declaratory nature. The Government pointed out in this context that non-compliance with section 155 of the Act on Procedure in Family Matters was not a decisive factor in the current proceedings, because this provision was merely a recommendation and did not stipulate swiftness at all costs. The decisive factor was always the best interest of the child. 115. The Government also submitted that the applicant ’ s further requests for administrative fines clearly lacked any prospect of success as the contact order given on 1 September 2010 only provided for unsupervised contact following a preparatory phase of supervised contacts. It must thus have been clear for the applicant that the decision did not grant him the right to unsupervised contact without an initial phase of supervised contact. The Government further submitted that the proceedings were processed without any undue delay. (c) The Court ’ s assessment 116. The Court observes, at the outset, that the applicant did not lodge an appeal and thus did not exhaust domestic remedies against the District Court ’ s decision of 26 August 2011 not to impose further administrative fines on the child ’ s mother. It follows that the Court is only called upon to examine the applicant ’ s Article 8 complaint with regard to the length issue. 117. The Court observes that the proceedings on the discharge of the contact custodian were instigated on 15 November 2010, when the applicant lodged his request, and were terminated on 29 June 2011, when the District Court established that contact custodianship had expired on 31 March 2011. The proceedings thus lasted seven months and two weeks before the District Court. The Court notes that, under the pertinent legislation, a contact custodian could only be dismissed if a new custodian was appointed at the same time. The Court further notes that the District Court made considerable efforts to find a contact custodian, which were ultimately to no avail. The proceedings on the applicant ’ s requests to impose further administrative fines lasted from 10 May 2011, when the applicant lodged his first request, and ended on 26 August 2011, when the District Court rejected the requests. Proceedings thus lasted three months and seventeen days. In the light of all circumstances of the case, the Court does not find this length of proceedings to be excessive. 118. In the light of these considerations, the Court cannot find that the conduct of the proceedings on the discharge of the contact custodian and on the applicant ’ s requests to impose further administrative fines violated the applicant ’ s rights under Article 8 of the Convention. 3. Proceedings on the review of contact regulations (a) The Government ’ s submissions 119. The Government submitted that the length of the proceedings on the review of contact regulation was primarily caused by the applicant ’ s own conduct. While the applicant was free to make use of all procedural means available to him, the ensuing delays were not imputable to the domestic courts. (b) The applicant ’ s submissions 120. The applicant contested that the length of the proceedings was imputable to him. The proceedings on the modification of contact rights were ineffective and lasted an excessively long time. In particular, the District Court had failed to summon other possible contact custodians after the agreement with Ms Z. had failed. The necessity to hear an expert opinion was caused by the excessive length of the prior proceedings and therefore also imputable to the domestic courts. (c) The Court ’ s assessment 121. The Court notes that the proceedings on the review of contact regulations were instituted ex officio by the District Court on 11 February 2011 and were terminated before that court on 12 November 2013. The appeal proceedings were terminated by the decision given by the Frankfurt Court of Appeal on 17 September 2014. Therefore, the proceedings lasted two years and nine months before the first instance court and some ten months before the Court of Appeal. The Court observes that the applicant lodged two motions, and the defending party one motion, for bias against the District Court Judge, each of which caused a delay of several weeks. A further delay of almost five months was caused by the fact that the applicant rejected the court ‑ appointed expert on grounds of bias. While this rejection was ultimately successful, it has not been established that the grounds for the suspicion of bias lay within the sphere of the District Court or could have been known to the District Court prior to his appointment. Hearings were postponed twice upon the request of the applicant, who finally stated that he was unfit to appear in court. The Court further observes that the applicant did not appear at any of the hearings scheduled by the Court of Appeal and rejected the Chamber of the Court of Appeal for failure to comply with his request to postpone a hearing. 122. In the light of these facts, the Court cannot find that the length of the proceedings before the family courts, even though considerable, was due to the courts ’ lack of special diligence. In particular, the applicant ’ s alleged inability to take part in the scheduled hearings cannot be held imputable to the family courts. The Court concludes that it has not been established that the family courts have failed to comply with the procedural aspect of Article 8 of the Convention with regard to the proceedings instituted on 11 February 2011. III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 123. The applicant also complained that the length of the court proceedings concerning contact rights had exceeded a reasonable time in breach of Article 6 § 1 of the Convention, the relevant part of which reads as follows: “In the determination of his civil rights and obligations ..., everyone is entitled to a... hearing within a reasonable time by a ... tribunal...” 124. The Court notes that, under the Remedy Act, the applicant was entitled to lodge a claim for just satisfaction, but failed to do so. However, he disputes the effectiveness of the Remedy Act. Referring to a judgment in which a Court of Appeal awarded an applicant monetary compensation amounting to EUR 1, 500 for the excessive length of contact proceedings lasting two years and eight months, and which had been confirmed by the Federal Court of Justice on 13 March 2014 (III ZR 91/13), the applicant submitted that the domestic courts had failed to take into account relevant case-law of the Court when assessing just satisfaction claims under the Remedy Act. 125. The Court reiterates that in the area of the exhaustion of domestic remedies there is a distribution of the burden of proof. It is incumbent on the Government claiming non-exhaustion to satisfy the Court that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant ’ s complaints and offered reasonable prospects of success. However, once this burden of proof has been satisfied, it falls to the applicant to establish that the remedy advanced by the Government was in fact exhausted or was for some reason inadequate and ineffective in the particular circumstances of the case or that there existed special circumstances absolving him or her from the requirement (see, Akdivar and Others v. Turkey, 16 September 1996, § 68, Reports of Judgments and Decisions 1996 ‑ IV; and Eberhard and M., cited above, § 147 ). 126. The Court notes that the applicant had access to the claim for just satisfaction, which became available to him under the transitory provision of the Remedy Act upon its entry into force on 3 December 2011. The Court has previously found that the Remedy Act was in principle capable of providing adequate redress for the violation of the right to a trial within a reasonable time and that an applicant could be expected to make use of this remedy, even though it became available to him only after he had lodged his complaint with the Court ( see Taron, cited above, § § 40 -43 ). The Court considers that the applicant has not submitted any reason which would allow the conclusion that the just satisfaction claim would not have had a reasonable prospect of success if pursued by the applicant in respect of the alleged unreasonable length of the court proceedings. The mere allegation that one Court of Appeal, in a court decision confirmed by the Federal Court of Justice, may have failed to take into account relevant case-law of the Court when assessing the amount of damages to be awarded under the Remedy Act, is not sufficient to call into question the general effectiveness of the legal remedy as a whole. 127. This part of the application must thus be rejected for non ‑ exhaustion of domestic remedies in accordance with Article 3 5 §§ 1 and 4 of the Convention. IV. ALLEGED VIOLATION OF ARTICLE 13 IN CONJUNCTION WITH ARTICLE 8 OF THE CONVENTION 128. The applicant complained of a violation of his right to an effective remedy against the excessive length of the proceedings before the family courts. He relied on Article 13 in conjunction with Article 8 of the Convention. 129. The Government contested that argument. A. Admissibility 130. 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 Government ’ s submissions 131. Referring to the Court ’ s decision in the case of Taron ( cited above, §§ 39-45 ), the Government submitted that the Court had already established that the Remedy Act was generally suited to provide effective redress against excessive length of proceedings. While the evaluation of the domestic remedy, which had been in force for two years, was still pending, the existing case-law showed that the new remedy was functioning well in practice. This had been confirmed by the final resolution issued by the Committee of Ministers in the Rumpf case ( see Rumpf v. Germany, no. 46344/06, 2 September 2010 and Resolution CM/ResDH(2013)244 ). 132. According to the Government, the new legal remedy was effective also in cases concerning contact with children, as it had a general preventive effect besides offering monetary redress. The two - stage legal remedy available under the amended Courts Constitution Act had a general, preventive effect by virtue of its very existence. In addition, the instrument of an objection to delay had a warning function, since it pointed out to the trial court which proceedings were already protracted from an applicant ’ s point of view and thus allowed that court to expedite the proceedings. Furthermore, the compensation claim under the Remedy Act also had a preventive function, as it could already be lodged while proceedings were pending. Finally, the plaintiff had the option of obtaining monetary compensation for any disadvantages resulting from a violation of the right to a decision within a reasonable time. 133. The Government observed that the proceedings which were the subject matter of the instant complaint had been pending since May 2010 and thus fell under the transitional provision of Article 23 of the Remedy Act. Accordingly, the objection to delay was not yet available at that stage of the proceedings. However, the draft legislation had already been published at that time; furthermore, especially in regard to family law, the appeal courts had already generally recognised the legal institution (which was not regulated by law) of a complaint on account of inactivity in order to avert the danger of creating irreversible effects. Finally, the applicant himself had lodged several objections to delay during the proceedings at hand. 2. The applicant ’ s submissions 134. According to the applicant, the Remedy Act did not comply with the prerequisites laid down in the Court ’ s case-law. The Court had held in several judgments that a purely compensatory remedy was not sufficient to address violations resulting from the length of proceedings in which the conduct of the proceedings may have an impact on the applicant ’ s family life (the applicant referred to the Court ’ s judgments in the cases of Macready v. the Czech Republic, nos. 4824/06 and 15512/08, 22 April 2010 and Bergmann v. the Czech Republic, no. 8857/08, 27 October 2011 ). 135. The Remedy Act was not yet in force when the proceedings at issue were instituted and the applicant would only have been in a position to lodge a compensation claim under its transitory provisions. However, after consideration, the applicant had abstained from making use of this possibility also in view of its lack of effectiveness. The solution of compensation provided by the Remedy Act did not satisfy the requirements of an effective preventive remedy, because it did not lead to an order of binding measures to expedite proceedings. Neither did the objection to delay fulfil these requirements, as it constituted neither a legal claim for a declaration of a violation of the Convention nor a right to effective redress, as the law did not provide for a possibility of an effective appeal. 3. The Court ’ s assessment (a) General principles 136. The Court reiterates that Article 13 of the Convention gives direct expression to the States ’ obligation, enshrined in Article 1 of the Convention, to protect human rights first and foremost within their own legal system. It therefore requires that the States provide a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief (see, among other authorities, Kudła v. Poland [GC], no. 30210/96, § 152, ECHR 2000 ‑ XI). In the present case, having regard to its conclusion with regard to the conduct of the proceedings before the family courts (compare, in particular, paragraph 1 0 9, above), the Court considers that the applicant had an arguable claim of a violation of Article 8 relating to the conduct of the proceedings on contact rights. 137. The Court further reiterates its case-law according to which remedies available to a litigant at domestic level for raising a complaint about the length of proceedings are “effective” within the meaning of Article 13 of the Convention if they prevent the alleged violation or its continuation, or provide adequate redress for any violation that has already occurred. A remedy therefore fulfils these criteria if it can be used either to expedite a decision by the courts dealing with the case, or to provide the litigant with adequate redress for delays that have already occurred (see Mifsud v. France (dec.) [GC], no. 57220/00, § 17, ECHR 2002 ‑ VIII; and Sürmeli v. Germany [GC], no. 75529/01, § 99, ECHR 2006 ‑ VII ). However, in proceedings in which the length of the proceedings has a clear impact on the applicant ’ s family life (and which thus fall to be examined under Article 8 of the Convention) the Court has considered that a more rigid approach is called for, which obliges the States to put into place a remedy which is at the same time preventive and compensatory (see Macready, cited above, § 48; and Bergmann, cited above, §§ 45-46 ). The Court has observed in this respect that the State ’ s positive obligation to take appropriate measures to ensure the applicant ’ s right to respect for family life risked becoming illusory if the interested parties only had at their disposal a compensatory remedy, which could only lead to an a posteriori award for monetary compensation (see Macready, ibid. ). (b) Application to the instant case 138. Turning to the circumstances of the instant case, the Court observes that the proceedings at issue concerned the applicant ’ s contact rights with his young child. It is thus clear that the case falls within the category of cases which risk being predetermined by their length. Under the principles set out above, it thus has to be determined whether German law provided, at the relevant time, a remedy against the length of proceedings which did not only offer monetary redress, but which was also effective to expedite proceedings before the family courts. (i) The Remedy Act 139. With regard to the effectiveness of the remedy introduced by the Remedy Act, the Court observes at the outset that this remedy only became available in December 2011 and thus at a time when the instant proceedings had already continued for one and a half year and were pending before the Court. The applicant chose not to avail himself of the possibility to request monetary compensation under its transitory provisions. The Court reiterates that it has previously found that there were no reasons to believe that the new remedy would not afford an applicant an opportunity to obtain adequate and sufficient compensation for his grievances (see Taron, cited above, § 40 ). It has not, however, examined the question of whether the Remedy Act could also be regarded as effectively expediting the proceedings if the right to respect for family life otherwise risked becoming illusory. 140. With regard to the warning function attributed by the respondent Government to the objection to delay, the Court accepts that such an objection may, in a specific case, encourage a trial court to expedite proceedings. It notes, however, that the Remedy Act does not attach any sanction to the failure to comply other than the possibility to lodge a compensation claim. The Court is, furthermore, not convinced that the possibility to lodge a compensation claim can be regarded as having a sufficient expediting effect on pending proceedings in cases concerning contact rights to young children, if this is necessary to prevent a violation of the right to respect for family life. 141. In the light of these considerations, the Court is not convinced that the provisions introduced by the Remedy Act meet the specific requirements for a legal remedy designed to meet the State ’ s positive obligations under Article 8 of the Convention in proceedings relating to a parent ’ s contact rights with his young child. (ii) The complaint alleging inaction 142. The Court has previously considered that the complaint alleging inaction, which did not have a statutory basis in domestic law, but had been accepted by a number of appeal courts prior to the entry into force of the Remedy Act, could not be regarded an effective remedy against the excessive length of civil proceedings, having regard to the uncertainty about the admissibility criteria for such a complaint and to its practical effect on the specific proceedings (see Sürmeli, cited above, §§ 110 ‑ 112). The Court observes that the Government have not put forward any arguments which would allow a different conclusion to be drawn in the instant case. It follows that the complaint alleging inaction cannot be regarded as an effective remedy in this specific case. (iii) Section 155 of the Act on Procedure in Family Matters 143. The Court finally observes that the Government submitted in a different context that section 155 of the Act on Procedure in Family Matters, which obliging family courts to treat contact proceedings as a priority and expediently, was merely a recommendation and did not stipulate swiftness “ at all costs” (see paragraph 114, above). They did not allege that this provision could serve as an effective remedy within the meaning of Article 13 of the Convention. The Court appreciates that this provision may encourage the courts to comply with their duty to exercise special diligence in contact proceedings. However, in the absence of any statutory sanction for non ‑ compliance, the Court agrees that this tool cannot be regarded as an effective preventive remedy against the excessive length of contact proceedings. 144. Accordingly, the applicant did not have an effective remedy within the meaning of Article 13 of the Convention which could have expedited the proceedings on his contact rights. 145. There has therefore been a violation of Article 13 in conjunction with Article 8 of the Convention. V. APPLICATION OF ARTICLE 41 OF THE CONVENTION 146. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 147. The applicant claimed the sum of at least EUR 30,000 in respect of non-pecuniary damage. The applicant submitted that he had suffered non-pecuniary damage because of the excessively long and ineffective proceedings on contact rights which had been pending before the family courts since 2005 and which led to his permanent separation from his child. The applicant considered as an aggravating factor that the Court ’ s judgment of 21 April 2011 (see Kuppinger, cited above) did not have an enduring effect on the processing of the proceedings by the family court. 148. The Government pointed out that the excessive length of the original proceedings had already been considered by the Court in its previous judgment (see Kuppinger, cited above). In the present case, only the proceedings on review of contact regulations were of an exceptional length which was, however, still justified under the circumstances of this particular case. By way of an alternative, the Government drew attention to the fact that the Court had previously decided not to award any compensation for non-pecuniary damage in a comparable case (the Government referred to Berlin v. Luxembourg, no. 44978/98, § 72, 15 July 2003 ). 149. The Court notes that the applicant has been awarded EUR 5,200 in respect of non ‑ pecuniary damage for the length of the proceedings between the years 2005 and 2010 (see Kuppinger, cited above, § 61). Ruling on an equitable basis, it awards the applicant EUR 1 5, 000 in respect of non-pecuniary damage for the violation of his rights under Articles 8 and 13 of the Convention in the instant case. B. Costs and expenses 150. The applicant also claimed a total of EUR 4,524.61 for costs and expenses incurred before the domestic courts (including costs for the proceedings before the Federal Constitutional Court in the amount of EUR 2,032.40) and EUR 4,404.13 for those incurred before the Court. He submitted that the child ’ s mother had failed to reimburse him the costs of the first administrative fine proceedings. 151. The Government affirmed that the applicant had failed to submit fee agreements justifying the bills relating to the costs of the proceedings before the Court and before the Federal Constitutional Court. They further submitted that the costs before the family courts were not incurred in an attempt to redress the violation of Article 8. Furthermore, the applicant had an enforceable claim against the mother for reimbursement of the costs of the first administrative fine proceedings. 152. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred in an attempt to redress the violation of the Convention rights and are reasonable as to quantum. The Court observes that it has found a violation of Article 8 of the Convention only with respect to the first administrative fine proceedings and that the applicant has obtained an enforceable title against the child ’ s mother for reimbursement of the costs incurred by these proceedings. In the light of this, the Court considers it reasonable to award the sum of EUR 2,032.40 for costs and expenses in the domestic proceedings and of EUR 4,404.13 for the proceedings before the Court. C. Default interest 153. 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 as regards the execution of an interim decision of May 2010 granting the applicant the right to see his son. It found that the German authorities had failed to take effective steps to execute the decision in question. The Court further held that there had been no violation of Article 8 as regards both the execution of an order on contact custodianship of September 2010 and the proceedings on the review of the contact regulations. Lastly, the Court held that there had been a violation of Article 13 (right to an effective remedy) in conjunction with Article 8 of the Convention, finding, in particular, that he did not have an effective remedy under German law against the length of proceedings which did not only offer monetary redress, but which could have expedited the proceedings on his contact rights before the family courts. |
874 | Private persons | II. RELEVANT DOMESTIC LAW AND PRACTICE A. The relevant powers of the Council 35. The Criminal Justice and Public Order Act 1994 (“the 1994 Act”) came into force on 3 February 1995. The relevant parts of section 163 provide as follows: “1. Without prejudice to any power which they may appear to exercise for those purposes under any other enactment, a local authority may take such of the following steps as they consider will, in relation to their area, promote the prevention of crime or the welfare of the victims of crime – (a) providing apparatus for recording visual images of events occurring on any land in their area; (b) providing within their area a telecommunications system which, under Part II of the Telecommunications Act 1984, may be run without a licence; (c) arranging for the provision of any other description of telecommunications system within their area or between any land in their area and any building occupied by a public authority. 2. Any power to provide, or to arrange for the provision of, any apparatus includes power to maintain, or operate, or, as the case may be, to arrange for the maintenance or operation of, that apparatus.” 36. The relevant part of section 111(1) of the Local Government Act 1972 provides as follows: “Without prejudice to any powers exercisable apart from this section but subject to the provisions of this Act and any other enactment passed before or after this Act, a local authority shall have the power to do anything ... which is calculated to facilitate, or is conducive or incidental to the discharge of any of their functions.” 37. Essex Police Policy Guidelines dated June 1995 concern the involvement of the police in the installation and operation of CCTV systems in their remit. In the section concerning the release to the media of video footage, it was pointed out that care should be taken not to jeopardise any existing or future legal proceedings, that licence agreements covering all appropriate terms and conditions of release should be drawn up and that care should always be taken to ensure that victims or other innocent parties featured were aware of its potential use and, where possible, their consent obtained. Where possible, the identity of victims, police employees and suspects (where identification might jeopardise criminal proceedings) should be masked. 38. As an extension of the Crime Reduction Programme announced in July 1998, government funding for CCTV systems was introduced in March 1999 and the sum of 153 million pounds sterling (GBP) has been made available over a period of three years, of which over GBP 40 million has already been allocated to more than 200 CCTV schemes. One of the requirements of such funding is that the scheme should be regulated by a suitable code of practice to ensure that it operates fairly and with proper respect for personal privacy. In the first year of operation of the CCTV system in Brentwood, there was a 34% reduction in crime. B. Judicial review 39. Where a public authority has exceeded its powers or has acted irrationally or has reached a decision in breach of the rules of procedural fairness, then a person aggrieved may challenge the decision by means of a judicial review. If a decision is so disproportionate to its intended objective as to be irrational, the Court will strike it down. The English courts do not recognise proportionality as a separate head of judicial review. However, in the case of R. ( Alconbury Developments Ltd) v. Secretary of State for the Environment, Transport & the Regions ([2001] 2 Weekly Law Reports 1389), Lord Slynn of the House of Lords stated obiter dictum : “I consider that even without reference to the Human Rights Act 1998 the time has come to recognise that this principle [of proportionality] is part of English administrative law, not only when judges are dealing with Community acts but also when they are dealing with acts subject to domestic law.” C. Private-law remedies 40. The remedy of breach of confidence is made up of three essential elements: the information itself must have “the necessary quality of confidence about it”; the information “must have been imparted in circumstances importing an obligation of confidence”; and there must have been an “unauthorised use of that information to the detriment of the party communicating it” ( Coco v. A.N. Clark Engineers Ltd [1969] Reports of Patent Cases 41, at p. 47). A fuller description of this cause of action together with more recent domestic case-law are detailed in Earl and Countess Spencer v. the United Kingdom (applications nos. 28851/95 and 28852/95, Commission decision of 16 January 1998, Decisions and Reports (DR) 92 ‑ A, p. 56). 41. Where a public official abuses his position by performing an administrative act maliciously, or which he knows he has no power to do, and causes foreseeable harm, then the injured person may recover damages on the basis of misfeasance in public office. 42. The remedy of defamation is well established in English law. Every person is entitled to his good name and to the esteem in which he is held by others and has a right to claim that his reputation shall not be disparaged by defamatory statements made about him to a third person or persons without lawful justification or excuse. 43. The essential elements of malicious falsehood are that a defendant has published words about the claimant that are false, that they were published maliciously and that special damage has followed as a direct and natural result of their publication ( Kaye v. Robertson [1991] Fleet Street Reports 62). 44. The tort of nuisance consists of an unwarranted interference with the use or enjoyment of land (see, for example, Thomas v. National Union of Mineworkers [1986] Law Reports: Chancery Division 20). Trespass consists of an unjustifiable intrusion by one person upon the land in the possession of another. The domestic courts have been developing the concept of a tort of harassment causing personal injury (see, for example, Burnett v. George [1992] 1 Family Law Reports 525, and Khorasandjin v. Bush [1993] 3 All England Law Reports 669). 45. Depending on the circumstances in which any film has been made or published, the unauthorised taking or publication of pictures might be prevented (or damages recovered) on the grounds of copyright, breach of contract or inducing breach of contract. D. Statutory protection for privacy 46. Statute law provides certain protection in the form of the Protection from Harassment Act 1997. Statutory regulation of surveillance is provided by the Interception of Communications Act 1985, by the Intelligence Services Act 1994 and by the Police Act 1997. The purpose of the Regulation of Investigatory Powers Act 2000 is to ensure that the relevant investigatory powers of the authorities are used in accordance with human rights. Many users of CCTV will have to comply with the provisions of the Data Protection Act 1998. Specific statutory protection of privacy is accorded in certain other contexts such as the anonymity of rape victims (Sexual Offences (Amendment) Act 1976) and the prohibition of the publication of the names or photographs of children involved in legal proceedings (Children and Young Persons Act 1933). 47. The Human Rights Act 1998 came into force in October 2000. It requires that, so far as it is possible to do so, primary and subordinate legislation be read and given effect in a manner compatible with the European Convention on Human Rights and further provides that it is unlawful for a public authority to act in a way incompatible with a Convention right. In Douglas v. Hello! Ltd ([2001] 1Weekly Law Reports 992), Sedley LJ indicated that he was prepared to find that there was now a qualified right to privacy under English domestic law, although other members of the Court of Appeal (Brooke LJ and Keene LJ) did not find it necessary to rule on that point. E. The media commissions 48. The Broadcasting Standards Commission (BSC) was established by section 106 of the Broadcasting Act 1996 with effect from April 1997. It is the duty of the BSC to draw up and publish a code giving guidance as to the principles to be observed and practices to be followed in connection with the avoidance of unjust or unfair treatment in programmes or the unwarranted infringement of privacy in programmes (section 107 of the 1996 Act). In this respect, paragraph 16 of the code points out that broadcasters should take care with material recorded by CCTV cameras to ensure identifiable individuals are treated fairly and that “any exceptions to the requirement of individual consent would have to be justified by an overriding public interest”. The BSC is also required to consider and adjudicate on complaints relating to unjust or unfair treatment in programmes, or to unwarranted infringement of privacy in programmes (sections 110 and 111 of the 1996 Act). 49. The BSC has powers, inter alia, to direct broadcasting bodies to publish the findings of the BSC or a summary of them (section 119), but it has no powers to direct a broadcasting body not to broadcast a programme. 50. The Independent Television Commission (ITC) is a public body set up by the Broadcasting Act 1990 to licence and regulate commercially funded television (excluding television services provided by, inter alia, the BBC). The Act requires the ITC to draw up and enforce a code governing programming standards and practice, which code covers issues of privacy. The ITC adjudicates upon complaints made under the code and, where a breach is confirmed, the ITC may impose sanctions such as requiring on-screen apologies, ordering fines and revoking licences. 51. The Press Complaints Commission (PCC) is a non-statutory body set up by the newspaper industry for the purposes of self-regulation. The PCC operates a voluntary code of practice, which code includes provisions relating to privacy. If a newspaper is found to be in breach of the code, the newspaper is to publish the adjudication of the PCC. The PCC has no legal powers to prevent publication of material, to enforce its rulings or to grant any legal remedies to a complainant. THE LAW I. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 52. The applicant complained that the disclosure by Brentwood Borough Council of the relevant CCTV footage, which resulted in the publication and broadcasting of identifiable images of him, constituted a disproportionate interference with his right to respect for his private life guaranteed by Article 8 of the Convention. The relevant parts of Article 8 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 ... public safety or ... for the prevention of disorder or crime ...” A. The existence of an interference with private life 1. The parties' submissions 53. The Government contended that the applicant's right to private life had not been engaged. They mainly argued that the incident in question did not form part of his private life given the substance of what was filmed and the location and circumstances of the filming. The applicant's actions were already in the public domain. Disclosure of those actions simply distributed a public event to a wider public and could not change the public quality of the applicant's original conduct and render it more private. The Government also maintained that the applicant waived his rights by choosing to do what he did, where he did, and submitted that the fact that the applicant did not complain about being filmed, as such, amounted to an acknowledgment that the filming did not engage his right to the protection of his private life. They further considered that the question of whether there was an interference with his private life was not clear cut and submitted that certain factors should be borne in mind in this respect, including the nature of the impugned act and the parties' conduct. 54. The applicant maintained that the disclosure of the footage constituted a serious interference with his private life. The relevant footage related to an attempted suicide, he was unaware that he was being filmed and the footage showed the immediate aftermath of this episode while he still held the knife. The footage was disclosed to the written and audiovisual media with large audiences, without his consent or knowledge and without masking at all or adequately his identity. His image, even in those circumstances, was broadcast to millions and he was recognised by a large number of persons who knew him, including family members, friends and colleagues. While he was not complaining about being filmed by CCTV (as this saved his life), he took issue with the disclosure by the Council of the CCTV material which resulted in the impugned publications and broadcasts. 55. While the CCTV material disclosed did not show him actually cutting his wrists, the applicant argued that it concerned a period immediately following his suicide attempt and thus related to that personal and private matter. He may have been in the street, but it was late at night, he was not taking part in a public demonstration (the main reason for demonstrating is to be seen) and, given his psychological state, it could not be said that he was there voluntarily at all. He was unaware that he was being filmed and the disclosure took place without his knowledge or consent and the footage was later broadcast, and the stills published, without his permission and in a manner which did not exclude his identification by family, friends, neighbours and colleagues. The BSC, the ITC and the High Court found that his privacy had been invaded and, given those findings, the PCC's view to the contrary was not tenable. 56. In addition, the applicant maintained that the jurisprudence of the Convention institutions accepted that the occurrence of an event in a public place was only one element in the overall assessment of whether there was an interference with private life, other relevant factors including the use made of the material obtained and the extent to which it was made available to the public. In contrast to that jurisprudence, not only was disclosure of the CCTV material specifically foreseen by the Council, but that disclosure was made to the media. Moreover, the applicant contended that it could not be said that he “unequivocally” waived his rights under the Convention on 20 August 1995. 2. The Court's assessment 57. Private life is a broad term not susceptible to exhaustive definition. The Court has already held that elements such as gender identification, name, sexual orientation and sexual life are important elements of the personal sphere protected by Article 8. That 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” (see P.G. and J.H. v. the United Kingdom, no. 44787/98, § 56, ECHR 2001-IX, with further references). 58. In P.G. and J.H. (§ 57) the Court further noted as follows: “There are a number of elements relevant to a consideration of whether a person's private life is concerned in measures effected outside a person's home or private premises. Since there are occasions when people knowingly or intentionally involve themselves in activities which are or may be recorded or reported in a public manner, a person's reasonable expectations as to privacy may be a significant, although not necessarily conclusive, factor. A person who walks down the street will, inevitably, be visible to any member of the public who is also present. Monitoring by technological means of the same public scene (for example, a security guard viewing through closed-circuit television) is of a similar character. Private life considerations may arise, however, once any systematic or permanent record comes into existence of such material from the public domain.” 59. 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 the association “ Ligue des droits de l'homme ” v. Belgium, applications nos. 32200/96 and 32201/96, Commission decision of 14 January 1998, DR 92-B, 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. Accordingly, in both Rotaru and Amann (to which P.G. and J.H. referred) 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 ( 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). While the permanent recording of the voices of P.G. and J.H. was made while they answered questions in a police cell 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 (see P.G. and J.H., cited above, §§ 59-60). 60. However, the Court notes that the present applicant did not complain that the collection of data through the CCTV-camera monitoring of his movements and the creation of a permanent record of itself amounted to an interference with his private life. Indeed, he admitted that that function of the CCTV system, together with the consequent involvement of the police, may have saved his life. Rather, he argued that it was the disclosure of that record of his movements to the public in a manner in which he could never have foreseen which gave rise to such an interference. 61. In this connection, the Court recalls both Lupker and Friedl decided by the Commission, which concerned the unforeseen use by the authorities of photographs which had been previously voluntarily submitted to them ( Lupker and Others v. the Netherlands, no. 18395/91, Commission decision of 7 December 1992, unreported) and the use of photographs taken by the authorities during a public demonstration ( Friedl v. Austria, judgment of 31 January 1995, Series A no. 305-B, opinion of the Commission, p. 21, §§ 49-52). In those cases, the Commission attached importance to whether the photographs amounted to an intrusion into the applicant's privacy (as, for instance, by entering and taking photographs in a person's home), whether the photograph related to private or public matters and whether the material thus obtained was envisaged for a limited use or was likely to be made available to the general public. In Friedl the Commission noted that there was no such intrusion into the “inner circle” of the applicant's private life, that the photographs taken of a public demonstration related to a public event and that they had been used solely as an aid to policing the demonstration on the relevant day. In this context, the Commission attached weight to the fact that the photographs taken remained anonymous in that no names were noted down, the personal data recorded and photographs taken were not entered into a data-processing system and no action had been taken to identify the persons photographed on that occasion by means of data processing (ibid.). Similarly, in Lupker, the Commission specifically noted that the police used the photographs to identify offenders in criminal proceedings only and that there was no suggestion that the photographs had been made available to the general public or would be used for any other purpose. 62. The present applicant was in a public street but he was not there for the purposes of participating in any public event and he was not a public figure. It was late at night, he was deeply perturbed and in a state of distress. While he was walking in public wielding a knife, he was not later charged with any offence. The actual suicide attempt was neither recorded nor therefore disclosed. However, footage of the immediate aftermath was recorded and disclosed by the Council directly to the public in its CCTV News publication. In addition, the footage was disclosed to the media for further broadcasting and publication purposes. Those media included the audiovisual media: Anglia Television broadcast locally to approximately 350,000 people and the BBC broadcast nationally, and it is “commonly acknowledged that the audiovisual media have often a much more immediate and powerful effect than the print media” ( Jersild v. Denmark, judgment of 23 September 1994, Series A no. 298, pp. 23-24, § 31). The Yellow Advertiser was distributed in the applicant's locality to approximately 24,000 readers. The applicant's identity was not adequately, or in some cases not at all, masked in the photographs and footage so published and broadcast. He was recognised by certain members of his family and by his friends, neighbours and colleagues. As a result, the relevant moment was viewed to an extent which far exceeded any exposure to a passer-by or to security observation (as in Herbecq and the association “ Ligue des droits de l'homme ”, cited above) and to a degree surpassing that which the applicant could possibly have foreseen when he walked in Brentwood on 20 August 1995. 63. Accordingly, the Court considers that the disclosure by the Council of the relevant footage constituted a serious interference with the applicant's right to respect for his private life. B. Whether the interference was in accordance with the law and pursued a legitimate aim 64. The Government submitted that any interference was “in accordance with the law” in that it fell within section 163 of the Criminal Justice and Public Order Act 1994 (“the 1994 Act”) and section 111 of the Local Government Act 1972 (“the 1972 Act”), both of which provisions complied with the Convention's “quality of law” requirements. They added that any interference pursued a legitimate aim: as accepted during the judicial review proceedings, the Council's intention in installing and operating the CCTV system and in disclosing footage to the media was the detection and prevention of crime, thereby securing public safety and private property. 65. The applicant considered that the interference in question was not “in accordance with the law” because it was not foreseeable. He argued that the scope and conditions of the exercise of the discretionary power of disclosure in the 1972 and 1994 Acts were not indicated with sufficient clarity and thereby failed to protect him against arbitrary interferences with his rights. He also considered that the disclosure of the CCTV material had no legitimate aim because any connection between the aim of detecting and deterring crime and his conduct was too remote. 66. The Court has noted the terms of section 163 of the 1994 Act and section 111(1) of the 1972 Act and the judgment of, in particular, the High Court. That court noted that the purpose of section 163 of the 1994 Act was to empower a local authority to provide CCTV equipment in order to promote the prevention of crime and the welfare of victims of crime. It further noted that the publicising of information about the successful operation of the CCTV system reinforced the deterrent effect of its operation. The Council had the power to distribute the CCTV footage to the media for transmission by virtue of section 111(1) of the 1972 Act in the discharge of their functions under section 163 of the 1994 Act. 67. Accordingly, the Court considers that the disclosure did have a basis in law and was, with appropriate legal advice, foreseeable (see The Sunday Times v. the United Kingdom (no. 1), judgment of 26 April 1979, Series A no. 30, p. 31, § 49). It also regards the disclosure as having pursued the legitimate aim of public safety, the prevention of disorder and crime and the protection of the rights of others. C. Whether the interference was justified 1. The parties' submissions 68. The Government considered that any interference was proportionate. They pointed out that the domestic courts had already assessed the reasonableness of the disclosure, and that this Court should not substitute its own assessment for that of the domestic institutions. 69. As to the reasons why any such interference was proportionate, the Government emphasised the obligation to protect the life and property of citizens. Given the margin of appreciation open to States to implement the most suitable measures to combat crime, the Government's view of CCTV as a powerful weapon in that battle should be accepted. Disclosure of CCTV footage complemented this aim: the policy was to give CCTV as prominent a role as possible in order to avoid covert surveillance, to inspire public confidence and support for the system and to deter criminals. This aim of deterrence was expressly accepted by the High Court as one of the bases of the Council's conduct, and crime had decreased since the installation of the CCTV system. An important element of the publicity given to CCTV had been the release of footage to the media and the CCTV footage of the applicant was an entirely suitable illustration of the type of situation constituting good publicity for CCTV. It was not a private tragedy sensationalised by the disclosure of the footage since it did not show the applicant's attempted suicide and it was not apparent from the footage disclosed that he had made such an attempt or tried to injure himself in any way. This was not obvious to the Council operator, who did not know on the relevant evening that the applicant had tried to commit suicide. Rather, the footage evidenced the police defusing a potentially dangerous situation. 70. In addition, they argued that cooperation with the media to publicise the CCTV system would be undermined if it were necessary to obtain the consent of everyone who appeared on the images; the Government referred to scenes on crowded streets and to footage which might include missing persons whose consent could not be obtained. 71. Moreover, the Government submitted that the nature of the impugned act and the parties' conduct were relevant considerations in this context also. As to the impugned act, they pointed out that the disclosed footage was obtained neither covertly, intrusively or selectively and the degree of intrusion was limited. The applicant, the Government suggested, courted attention by going to a busy junction at the centre of Brentwood clearly brandishing a knife, and he compounded the publicity thereafter by his voluntary appearances in the media. Indeed, it was during those appearances that his identity was first made known to the public and that the first public reference was made to his attempted suicide. The Council, the Government contended, acted in good faith in the public interest with no commercial motive. Since it had no facilities to mask faces on CCTV footage, it released the footage to the media on the understanding that the relevant television companies would mask the applicant's image. The fact that those companies did not do so, or did so inadequately, was not the responsibility of the Council. 72. The applicant maintained that the interference was not proportionate given the serious nature of the interference. The Council should have, and could have, taken reasonable steps to identify the applicant and inform themselves of his situation. It should have, since the purpose of disclosing the film was to advertise widely the benefits of CCTV and not to identify a criminal. It could have, because there was only one person visible, whose identification would have been possible through the police, who had been called by the CCTV operator to the scene. 73. Moreover, he considered that the Council's attempt at ensuring the masking of the relevant image was inadequate. If the Council did not have the facilities themselves, they should have ensured that the media properly carried out the masking. Written agreements would be a step in the right direction, but none were completed prior to the disclosures in his case. 74. Furthermore, the applicant submitted that there was no sufficiently important countervailing public interest. He was not a public figure and he had no public role. The disclosure was made not to catch a criminal or find a missing person but to satisfy the general aim of publicising the effectiveness of the CCTV system, with which aim properly masked images or other less intrusive footage would have been consistent. 75. The applicant contested the Government's assertion that the High Court had assessed the proportionality of the interference. He also rejected their contention that he courted attention on 20 August 1995. He further disputed their questioning of his motivation by their reference to his voluntary media appearances in 1996: his image had already been published and broadcast without his consent and he was identified by those who knew him. He then correctly pursued any remedies available, which procedures were public, and he could not be criticised for speaking about his predicament to responsible media. He faced the classic dilemma of one whose privacy has been interfered with: seeking a remedy and defending one's position by speaking out inevitably led to further publicity. 2. The Court's assessment 76. In determining whether the disclosure was “necessary in a democratic society”, the Court will consider whether, in the light of the case as a whole, the reasons adduced to justify the disclosure were “relevant and sufficient” and whether the measures were proportionate to the legitimate aims pursued. 77. In cases concerning the disclosure of personal data, the Court has recognised that a margin of appreciation should be left to the competent national authorities in striking a fair balance between the relevant conflicting public and private interests. However, this margin goes hand in hand with European supervision (see Funke v. France, judgment of 25 February 1993, Series A no. 256-A, p. 24, § 55) and the scope of this margin depends on such factors as the nature and seriousness of the interests at stake and the gravity of the interference (see Z v. Finland, judgment of 25 February 1997, Reports of judgments and Decisions 1997-I, p. 348, § 99). 78. Z v. Finland related to the disclosure in court proceedings without the applicant's consent of her health records, including her HIV status. The Court noted that the protection of personal data was of fundamental importance to a person's enjoyment of his or her right to respect for private life and that the domestic law must therefore afford appropriate safeguards to prevent any such disclosure as may be inconsistent with the guarantees in Article 8 of the Convention. In so finding, the Court referred, mutatis mutandis, to Articles 3 § 2 (c), 5, 6 and 9 of the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (European Treaty Series no. 108, Strasbourg, 1981). It went on to find that the above considerations were “especially valid” as regards the protection of the confidentiality of information about a person's HIV status, noting that the interests in protecting the confidentiality of such information weighed heavily in the balance in determining whether the interference was proportionate to the legitimate aim pursued. Such interference could not be compatible with Article 8 of the Convention unless it was justified by an overriding requirement in the public interest. Any State measures compelling disclosure of such information without the consent of the patient and any safeguards designed to secure an effective protection called for the most careful scrutiny on the part of the Court. 79. As to the present case, the Court would note at the outset that the applicant was not charged with, much less convicted of, an offence. The present case does not therefore concern disclosure of footage of the commission of a crime. The Court has also noted, on the one hand, the nature and seriousness of the interference with the applicant's private life (see paragraph 63 above). On the other hand, the Court appreciates the strong interest of the State in detecting and preventing crime. It is not disputed that the CCTV system plays an important role in these respects and that that role is rendered more effective and successful through advertising the CCTV system and its benefits. 80. However, the Court notes that the Council had other options available to it to allow it to achieve the same objectives. In the first place, it could have identified the applicant through enquiries with the police and thereby obtained his consent prior to disclosure. Alternatively, the Council could have masked the relevant images itself. A further alternative would have been to take the utmost care in ensuring that the media, to which the disclosure was made, masked those images. The Court notes that the Council did not explore the first and second options and considers that the steps taken by the Council in respect of the third were inadequate. 81. As to the first option, it is true that individuals may not give their consent or that such an exercise may not be feasible where the footage includes images of numerous persons. In such circumstances, it could be argued that a consent-based system of disclosure could in practice undermine any action aimed at promoting the effectiveness of the CCTV system. However, in the present case, such limitations were not particularly relevant. The relevant footage clearly focused on and related to one individual only. It is not disputed that the Council, whose CCTV operator had alerted the police and observed their intervention, could have made enquiries with the police to establish the identity of the applicant and thereby request his consent to disclosure. Indeed, it appears from the Council's own CCTV News article of 9 October 1995 that certain enquiries had been made with the police to establish that the relevant individual had been questioned and assisted, but not to establish his identity. 82. Alternatively, the Council could have masked such images itself. While the Government confirmed that the Council did not have a masking facility, the Court notes that the Council's own guidelines indicate that it was intended to have such a facility. Indeed, the Court notes that the Council itself directly disclosed in its own publication, the CCTV News, stills taken from the relevant footage and that no attempt was made to mask those images. 83. As to the third option of ensuring appropriate and sufficient masking by the media to whom footage is disclosed, the Court notes that the High Court found that Anglia Television and the producers of the BBC programme had been orally requested to mask the applicant. The Court considers, contrary to the view of the High Court, that it would have been reasonable for the Council to demand written undertakings of the media to mask images, which requirement would have emphasised the need to maintain confidentiality. Indeed the High Court suggested that lessons could be learnt from this “unfortunate incident” and that, with the benefit of hindsight, the Council might see if it could tighten up its guidelines to avoid similar incidents in the future. The Council itself clearly intended to have a written licence agreement with the producers of “Crime Beat” but this does not appear to have been concluded as no final and signed agreement was disclosed to the applicant or submitted by the Government to this Court. The Essex police guidelines recommend written agreements with clauses on masking. Moreover, there is no evidence that the Yellow Advertiser was requested to mask the applicant's image at all. 84. Furthermore, the relevant CCTV material was released with the aim of promoting the effectiveness of the CCTV system in the prevention and detection of crime and it was not therefore unlikely that the footage would be used in such contexts. This proved to be the case, most notably in the BBC's “Crime Beat” programme. In such circumstances, and even though the applicant does not directly complain about damage to his reputation, the Court considers that particular care was required of the Council, which would reasonably have included verifying with the police whether the individual had, in fact, been charged or not. It is difficult to accept the Government's explanation that the Council was unaware of his identity. As noted above, the Council's own CCTV News article of 9 October 1995 would seem to imply that the Council had established that the relevant individual had been questioned and given assistance for his problems and could therefore have verified whether the applicant had, in fact, been charged. Indeed, the Yellow Advertiser had established by 13 October 1995 that the applicant had not been charged by the police. 85. In sum, the Court does not find that, in the circumstances of this case, there were relevant or sufficient reasons which would justify the direct disclosure by the Council to the public of stills from the footage in its own CCTV News article without the Council obtaining the applicant's consent or masking his identity, or which would justify its disclosures to the media without the Council taking steps to ensure so far as possible that such masking would be effected by the media. The crime-prevention objective and context of the disclosures demanded particular scrutiny and care in these respects in the present case. 86. Finally, the Court does not find that the applicant's later voluntary media appearances diminish the serious nature of the interference or reduce the correlative requirement of care concerning disclosures. The applicant was the victim of a serious interference with his right to privacy involving national and local media coverage: it cannot therefore be held against him that he sought thereafter to avail himself of the media to expose and complain about that wrongdoing. 87. Accordingly, the Court considers that the disclosures by the Council of the CCTV material in the CCTV News and to the Yellow Advertiser, Anglia Television and the BBC were not accompanied by sufficient safeguards to prevent disclosure inconsistent with the guarantees of respect for the applicant' private life contained in Article 8. As such, the disclosure constituted a disproportionate and therefore unjustified interference with his private life and a violation of Article 8 of the Convention. D. Other complaints under Article 8 of the Convention 88. The applicant also appeared to suggest that the BBC, acting under Royal Charter, was a public authority as was Anglia Television which acted under the authority of the ITC constituted under the Broadcasting Act 1990. Even assuming that those media could rely on their rights under Article 10 of the Convention, their broadcasts, he argued, also constituted unjustified interferences with his private life. The Government did not consider that the applicant had, in fact, made that submission and, in any event, denied that either the BBC or Anglia Television could be regarded as State bodies or public authorities within the meaning of Article 8 § 2 of the Convention. They relied, inter alia, on relevant domestic provisions and the conclusions to be drawn from the inclusion in Article 10 of the Convention of the phrase concerning the licensing of broadcasting, television or cinema enterprises. The applicant also maintained that, given the significant impact on family members, the disclosure of the footage constituted a serious interference with his right to respect for his family life. 89. The Court notes that the question of whether the BBC was an “emanation of the State” was left open by the Commission in Huggett v. the United Kingdom (no. 24744/94, Commission decision of 28 June 1995, DR 82-A, p. 98). However, in the light of the Court's finding of a violation in relation to the disclosure by the Council (see paragraph 87 above), it does not consider it necessary to consider these complaints separately. 90. The applicant further argued that the State had failed to fulfil its positive obligation to protect his rights under Article 8 because he had no effective domestic remedy in respect of the disclosures. The Government maintained that there was no breach of any positive obligation and, more particularly, they argued that the applicant had available to him such remedies. The Court considers that the issue of the availability of a domestic remedy for the impugned disclosure by the Council is more appropriately considered under Article 13 of the Convention. II. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 8 91. The applicant complained under Article 13 of the Convention taken in conjunction with Article 8 that he had no effective domestic remedy in relation to the relevant disclosures by the Council. 92. The relevant part of 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 ... ” A. The parties' submissions 93. The Government explained that the need for a law of privacy had been the subject of much debate for many years, many private members' bills and a number of official reports. The debate continued. However, the absence of a general right to privacy in domestic law did not, of itself, show a lack of respect for the applicant's private life. The question was rather whether the regime of legal protection which existed adequately protected the applicant's rights and the Government considered that it did. They pointed out that the common law and statutory remedies collectively provided a comprehensive regime of legal protection for privacy and therefore performed substantially the same function as a law of privacy. 94. In particular, the Government pointed out that the applicant had been able to assert and vindicate his claims before the BSC, the ITC and the PCC. They accepted that it was not intended that the media commissions should provide a “legal remedy, in the sense of making pecuniary compensation available to an aggrieved individual who may have been injured by an infringement of the relevant codes”. However, they contended that Article 13 did not require in every case a “court” or that a pecuniary award be available. In addition, the Government argued that the remedy of judicial review was also, in principle, capable of providing an adequate remedy and the rejection of the applicant's case did not undermine the effectiveness of that remedy. 95. The Government also maintained that a number of other remedies were available to the applicant. They considered the breach-of-confidence remedy to be the most relevant, suggesting that the applicant would have been entitled to bring such an action if he had been filmed “in circumstances giving rise to an expectation of privacy on his part”. The Government underlined that this was an area of the law which was heavily dependent on policy considerations and, consequently, it was an area that had been, and would continue to be, developed by the courts. The Convention jurisprudence had had an important impact on such developments and would have an even stronger impact with the coming into force of the Human Rights Act 1998. They also submitted that the applicant could have brought an action for defamation or malicious falsehood if any item had been misreported so as to suggest that he had been involved in a criminal act of violence against some other person. 96. The applicant maintained that he had no effective domestic remedy. He had pursued the most relevant remedies (the media commissions and judicial review) but those remedies were ineffective: the “irrationality” criteria in judicial review could not be equated with the proportionality test under Article 8 and the media commissions could not award damages. 97. In addition, he argued that a breach-of-confidence action would have had no realistic prospect of success. He noted that the Government had not quoted a single case where an individual in a relatively similar situation had obtained even partial satisfaction through this remedy. He considered their assertion that an expectation of privacy would be sufficient to give rise to such a remedy to be inaccurate in domestic law, and he found it noteworthy that the Government did not contend that he had failed to exhaust domestic remedies by not taking such an action. Moreover, he considered that the other remedies to which the Government referred were not relevant to his case. Certain of the statutes came into force after the relevant time, other statutes (relating, for example, to secret surveillance) could have no conceivable impact in the present case, and the common-law remedies to which the Government referred (for defamation, malicious falsehood, harassment and breach of confidence) were simply not relevant to the applicant in the particular circumstances of his case. B. The Court's assessment 98. The Court notes that the applicant complained under Article 8 of the Convention taken alone and in conjunction with Article 13, inter alia, that he did not have effective domestic remedies. The Government did not argue that the applicant had failed to exhaust domestic remedies within the meaning of Article 35 § 1 of the Convention. In the admissibility decision in this case, the Court considered that there was a close connection between any issue raised under Article 35 § 1 and the merits of the applicant's complaints concerning a lack of an effective domestic remedy and it joined any issue of exhaustion of domestic remedies to the merits of the application. 1. The applicable legal principles 99. The Court reiterates that Article 13 guarantees the availability of a remedy at national level to enforce the substance of Convention rights and freedoms in whatever form they may happen to be secured in the domestic legal order. Thus, its effect is to require the provision of a domestic remedy allowing the “competent national authority” both to deal with the substance of the relevant Convention complaint and to grant appropriate relief (see Smith and Grady v. the United Kingdom, nos. 33985/96 and 33986/96, § 135, ECHR 1999-VI, and Murray v. the United Kingdom, judgment of 28 October 1994, Series A no. 300-A, pp. 37-38, § 100). That provision does not, however, require the certainty of a favourable outcome (see Amann, cited above, § 88, with further references) or require the incorporation of the Convention or a particular form of remedy, Contracting States being afforded a margin of appreciation in conforming with their obligations under this provision (see Vilvarajah and Others v. the United Kingdom, judgment of 30 October 1991, Series A no. 215, p. 39, § 122). 100. The Court further notes that in Smith and Grady, cited above, it described the test of “irrationality” applied in judicial review proceedings as follows: a court was not entitled to interfere with the exercise of an administrative discretion on substantive grounds save where the court was satisfied that the decision was unreasonable in the sense that it was beyond the range of responses open to a reasonable decision-maker. In judging whether the decision-maker had exceeded this margin of appreciation, the human rights' context was important, so that the more substantial the interference with human rights, the more the court would require by way of justification before it was satisfied that the decision was reasonable. It was, however, further emphasised by the Court in that case that, notwithstanding any human rights context, the threshold of irrationality which an applicant was required to surmount was a high one, as confirmed by the domestic judgments in that case. While those courts had commented favourably on those applicants' submissions challenging the justification of the relevant policy (against homosexuals in the armed forces), the domestic courts had, nevertheless, concluded that the policy could not be said to be beyond the range of responses open to a reasonable decision-maker and, accordingly, could not be considered to be “irrational”. In such circumstances, the Court considered it clear that, even assuming that the essential complaints of Ms Smith and Mr Grady before this Court were before and considered by the domestic courts, the threshold at which those domestic courts could find the impugned policy to be irrational had been placed so high that it effectively excluded any consideration by the domestic courts of the question of whether the interference with the applicants' rights answered a pressing social need or was proportionate to the national-security and public-order aims pursued, principles which lay at the heart of the Court's analysis of complaints under Article 8 of the Convention. It therefore concluded that Ms Smith and Mr Grady had no effective remedy in relation to the violation of their right to respect for their private lives in violation of Article 13 of the Convention. 2. Application of those principles to the present case 101. The Court observes, in the first place, that the present case is distinguishable from James and Others v. the United Kingdom (judgment of 21 February 1986, Series A no. 98, pp. 47-48, §§ 85-86), Leander v. Sweden (judgment of 26 March 1987, Series A no. 116, pp. 29-30, § 77) and The Sunday Times v. the United Kingdom (no. 2) (judgment of 26 November 1991, Series A no. 217, p. 32, § 61), which establish that Article 13 cannot be seen as guaranteeing a remedy against primary legislation or equivalent domestic norms. The legislation relevant to the present case did not require disclosure of the CCTV material and the complaint is about the Council's exercise of its powers to disclose. (a) The regime of legal protection for privacy 102. As in Winer v. the United Kingdom (no. 10871/84, Commission decision of 10 July 1986, DR 48, p. 154), the Government argued that the Court should analyse the protection of privacy by the “ regime of legal protection for privacy” as a whole, this regime effectively carrying out the role of a law of privacy. However, the Court's task is not to review the relevant law or practice in the abstract but rather to confine itself, without overlooking the general context, to examining the issues raised by the case before it (see Amann, cited above, § 88) and, in particular, to considering only those remedies which could have some relevance for the applicant (see N. v. Sweden, no. 11366/85, Commission decision of 16 October 1986, DR 50, p. 173; Winer, cited above; and Stewart-Brady v. the United Kingdom, nos. 27436/95 and 28406/95, Commission decision of 2 July 1997, DR 90 ‑ A, p. 45). The Court considers that it is not relevant, therefore, to examine remedies which were not in force at the relevant time or those which had no relevance to the facts of the applicant's case. 103. The Court notes in this regard that the applicant did not complain about malicious acts on the part of the Council, about untrue reports or, at least directly, about an attack on his reputation. It is not disputed that issues of trespass, harassment, nuisance, copyright, breach of contract or secret surveillance by security services have no relevance to the applicant's complaints. Similarly, the Government did not suggest that the Data Protection Act 1998, the Sexual Offences (Amendment) Act 1976, the Children and Young Persons Act 1933 had any relevance to the facts of the present case. The Human Rights Act 1998 did not come into force until October 2000, that is, after the relevant facts of the applicants' case. 104. The Court has therefore confined its assessment to the remedies which could be considered to have had some relevance to the applicant's complaints. (b) Judicial review 105. The Court has found that the applicant's right to respect for his private life (see paragraph 87 above) was violated by the disclosure by the Council of the relevant footage. It notes that at the material time the Convention did not form part of domestic law and questions as to whether the disclosure violated the applicant's rights under Article 8 and, in particular, as to whether the disclosure had been shown by the authorities to respond to a pressing social need or to be proportionate to any legitimate aim served, were not questions to which answers could be offered. As in Smith and Grady, cited above, the sole relevant issue before the domestic courts was whether the policy could be said to be “irrational”. As in Smith and Grady, the present High Court noted that the applicant had suffered an invasion of privacy but that, unless and until there was a general right of privacy in domestic law, reliance had to be placed on the guidance provided by codes of practice or otherwise to avoid such undesirable invasions of privacy. The High Court went on to examine a number of factors, including the important role of CCTV cameras in public places, the images captured by those cameras, the attempt (albeit unsuccessful) by the Council to ensure that the applicant's identity was masked and the fact that the footage was not sold for commercial gain. The High Court concluded that, while lessons could be learned from the unfortunate incident, including the necessity to tighten up the Council's guidelines to seek to avoid a similar incident in the future, it was satisfied that the Council could not be said to have acted “irrationally in the sense that they had taken leave of their senses or had acted in a manner in which no reasonable authority could sensibly have acted”. 106. In such circumstances, the Court considers that the threshold at which the High Court could find the impugned disclosure irrational was placed so high that it effectively excluded any consideration by it of the question of whether the interference with the applicant's right answered a pressing social need or was proportionate to the aims pursued, principles which as noted above lie at the heart of the Court's analysis of complaints under Article 8 of the Convention. As to the Government's reference to Alconbury Developments Ltd, cited above, the Court notes that that case post-dated the entry into force of the Human Rights Act 1998. Moreover, the relevant comment concerning the place of the principle of proportionality in domestic law was accepted by the Government to be obiter dictum. In any event, the Government do not suggest that this comment is demonstrative of the full application by domestic courts of the proportionality principle in considering, in the judicial review context, cases such as the present. 107. The Court finds therefore that judicial review did not provide the applicant with an effective remedy in relation to the violation of his right to respect for his private life. (c) The media commissions 108. The Court notes that the Government submitted that the proceedings before these commissions provided the applicant with an opportunity to assert and vindicate his rights. However, they accepted that those bodies were not “intended to provide a legal remedy, in the sense of making pecuniary compensation available to an aggrieved individual who may have been injured by an infringement of the relevant codes”. 109. The Court finds that the lack of legal power of the commissions to award damages to the applicant means that those bodies could not provide an effective remedy to him. It notes that the ITC's power to impose a fine on the relevant television company does not amount to an award of damages to the applicant. While the applicant was aware of the Council's disclosures prior to the Yellow Advertiser article of February 1996 and the BBC broadcasts, neither the BSC nor the PCC had the power to prevent such publications or broadcasts. (d) An action in breach of confidence 110. The Court considers the fact that the Government did not claim that the applicant had failed to exhaust this remedy to be particularly noteworthy, given the Commission's finding that Earl and Countess Spencer's application (cited above) was inadmissible on this ground. 111. The Court considers that the facts of this case are, in any event, sufficiently different from those in Earl and Countess Spencer, cited above, as to allow the Court to conclude that the present applicant did not have an actionable remedy in breach of confidence at the relevant time, even accepting the Government's description of that remedy. In the first place, Earl and Countess Spencer had a strong case on the facts that former friends had disclosed in secret indisputably private information previously given to them on a confidential basis by the applicants. The present applicant would have had much greater difficulty in establishing that the footage disclosed had the “necessary quality of confidence” about it or that the information had been “imparted in circumstances importing an obligation of confidence”. The Government argued before the Court under Article 8 that the applicant's right to respect for his private life had not even been engaged. They have cited no domestic case which could be considered similar or analogous to the present case and which would suggest that these two elements of the breach-of-confidence claim were satisfied. Douglas v. Hello! Ltd, cited above, post-dated the relevant facts of the present case and, as importantly, the entry into force of the Human Rights Act 1998. In any event, only one of three judges in that case indicated that he was prepared to find that there was now a qualified right to privacy in domestic law. Moreover, the Court is not persuaded by the Government's argument that a finding by this Court that the applicant had an “expectation of privacy” would mean that the elements of the breach-of-confidence action were established. The Court finds it to be unlikely that the domestic courts would have accepted at the relevant time that the images had the “necessary quality of confidence” about them or that the information was “imparted in circumstances importing an obligation of confidence”. Secondly, once the material in question was in the public domain, its re-publication was not actionable as a breach of confidence. Such an action could not have been contemplated before the applicant became aware of the disclosures by the Council of the CCTV material namely, prior to October or November 1995. Accordingly, a claim of breach of confidence would not have been actionable in respect of the Brentwood Weekly News or the Yellow Advertiser articles or in respect of the BBC broadcast. 112. Given these deficiencies, it not necessary to consider whether an award of damages would have been available in a breach-of-confidence action. The Court would confine itself to noting that, despite this being the second area of dispute between the parties in Earl and Countess Spencer, cited above, no attempt has been made by the Government in the present case to clarify how damages could have been awarded in the absence of a prior injunction. The applicant could only have applied for such an injunction after he became aware of the disclosures in late October or early November 1995 and therefore only against the Yellow Advertiser and the BBC. Although an award of an account of profits is not dependent on the grant of a prior injunction, the Government have referred to no case where this has been ordered in respect of a broadcast. While an account of profits in respect of the national press was a possibility open to Earl and Countess Spencer, the Yellow Advertiser had a local as opposed to a national circulation. 3. The Court's conclusion 113. In such circumstances, the Court finds that the applicant had no effective remedy in relation to the violation of his right to respect for his private life guaranteed by Article 8 of the Convention. The Court does not accept as relevant the Government's argument that any acknowledgment of the need to have a remedy will undermine the important conflicting rights of the press guaranteed by Article 10 of the Convention. As noted above, the Council, and therefore the media, could have achieved their objectives by properly masking, or taking appropriate steps to ensure such masking of, the applicant's identity. 114. Accordingly, there has been a violation of Article 13 of the Convention taken in conjunction with Article 8. III. APPLICATION OF ARTICLE 41 OF THE CONVENTION 115. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 116. The applicant claimed compensation for the non-pecuniary damage suffered by him and reimbursement of his pecuniary losses and his legal costs and expenses. The Government contested these claims. A. Non-pecuniary damage 117. The applicant claimed 7,500 pounds sterling (GBP) in respect of non-pecuniary damage. He underlined the distress, anxiety, embarrassment and frustration suffered by him as a consequence of the impugned disclosures: he had been the subject of taunts, jokes and abuse from neighbours, the assumption was made that he was part of a crime problem and he had to explain his personal problems to his family after the relevant coverage in the media. He emphasised that the footage related to a distressing time for him, that the dissemination was without his knowledge or consent, that the consequent publications and broadcasts were at local and national level and that he had no remedy in national law. The Government argued that the finding of a violation would constitute sufficient just satisfaction in itself or, alternatively, that a sum of approximately GBP 4,000 would be appropriate compensation. 118. The Court observes that some forms of non-pecuniary damage, including emotional distress, by their very nature cannot always be the object of concrete proof. However, this does not prevent the Court from making an award if it considers that it is reasonable to assume that an applicant has suffered injury requiring financial compensation (see Davies v. the United Kingdom, no. 42007/98, § 38, 16 July 2002). 119. The Court has noted above the reasons why it considered the interference with the applicant's private life to be a serious one and the personal consequences for the applicant of the wide dissemination of the footage, together with the absence of any effective remedy in these respects (on this latter point, see D.P. and J.C. v. the United Kingdom, no. 38719/97, § 142, 10 October 2002). It considers that the applicant must thereby have suffered significant distress, embarrassment and frustration which are not sufficiently compensated by a finding of violation. 120. The Court therefore awards the applicant on an equitable basis 11,800 euros (EUR) in respect of non-pecuniary damage. B. Pecuniary damage 121. The applicant also claimed reimbursement of pecuniary damage incurred by him as a direct result of the matters constituting a violation in this case. In particular, he claimed compensation in the sum of GBP 2,500 for expenses he incurred in pursuing his applications before the BSC, the ITC, the PCC, the High Court and this Court. This amount included his travel expenses (to attend meetings with his representatives and to attend hearings), loss of salary (due to the nature of his work, the applicant claimed to have lost wages for the periods he was obliged to attend meetings and hearings), together with postage and telephone costs. The Government pointed out that the applicant claimed those expenses without providing any evidence. They added that, in so far as they were incurred in domestic proceedings, they were not necessarily and reasonably incurred in the course of the Convention proceedings and therefore were not recoverable. 122. The Court observes that these claims of the applicant have not been sufficiently detailed by him, the applicant claiming a global figure for all such expenses, and that, importantly, he has not submitted any documents vouching such pecuniary losses. In such circumstances, the Court does not award the applicant compensation for pecuniary damage. C. Legal costs and expenses 123. The applicant further claimed reimbursement of his legal costs of both the domestic and Convention proceedings. 124. As to the domestic proceedings, the applicant claimed GBP 5,047.40 (inclusive of value-added tax (VAT)) in respect of proceedings before the PCC, the ITC and the BSC. This was based on a charge-out rate of GBP 140 per hour for a senior solicitor and GBP 100 per hour for a legal officer. In addition to telephone calls and letters, 3 hours 45 minutes were accorded to the PCC proceedings and 1 hour 55 minutes were accorded to the ITC proceedings, the applicant not specifying whether this represented the time of the solicitor or the legal officer. Additionally, the applicant claims for 13 hours 25 minutes of solicitor's time and 5 hours of a legal officer's time for the BSC proceedings. It appears that legal aid was available for the judicial review proceedings, and no claim was made in that respect. The Government rejected this claim, arguing that the costs were not necessarily or reasonably incurred in the course of Convention proceedings. 125. The applicant also claimed GBP 11,563.54 in respect of the costs to date of the Convention proceedings up to and including research on the submissions to be made under Article 41 of the Convention. This represented work done by a solicitor and a legal officer (at the hourly rates set out above) and by a Queen's Counsel. A detailed bill of costs was submitted which noted time spent at each stage and disbursements, including Counsel's fees. Counsel's fee note has also been submitted (in the amount of GBP 1,727.25). The Government submitted that the costs claimed should be reduced if the Court was to find only partially in favour of the applicant and by any legal aid paid to the applicant. 126. Finally, the applicant claimed GBP 19,000 approximately (inclusive of VAT) in respect of the “anticipated costs” of Convention proceedings after the admissibility stage and prior to this judgment. The Government commented that this aspect of his claim was too speculative and that any future costs should be addressed if and when they were incurred. 127. 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 Lustig-Prean and Beckett v. the United Kingdom (just satisfaction), nos. 31417/96 and 32377/96, § 32, 25 July 2000). The Court further notes that the costs of the domestic proceedings can be awarded if they are incurred by applicants in order to try to prevent the violation found by the Court or to obtain redress therefor (see, among other authorities, Le Compte, Van Leuven and De Meyere v. Belgium (Article 50), judgment of 18 October 1982, Series A no. 54, p. 8, § 17). Costs in respect of the domestic proceedings were in fact awarded at paragraphs 30 to 33 of Lustig-Prean and Beckett (just satisfaction), cited above. 128. Accordingly, the Court considers that it was reasonable, given the absence of other remedies, for the applicant to have sought some public recognition of the breach of his privacy and some vindication of his position before the media commissions. Indeed, the Government argued, in the context of Article 13, that these commissions formed part of the legal regime of privacy protection in the United Kingdom and allowed the applicant to “assert and vindicate” his rights. The applicant was in fact successful before the BSC and ITC, both bodies recognising that there had been a breach of privacy and their decisions being later published. He may have been unsuccessful before the PCC, but this does not imply that the costs incurred in this connection can be considered to have been unnecessarily incurred (see, for example, Findlay v. the United Kingdom, judgment of 25 February 1997, Reports 1997-I, p. 284, § 91). Nevertheless, the Court does not consider that all of the fees were reasonable as to quantum given the nature of the proceedings before those bodies and, in particular, it considers excessive the hours billed in respect of the BSC complaint and the level of involvement of both a legal officer and a senior solicitor. 129. Accordingly, the Court awards, on an equitable basis, EUR 3,000 in relation to the costs of the domestic proceedings. 130. As to the Convention proceedings, the Court has noted the detailed bill of costs of the applicant's representatives and that both of his complaints (under Article 8 taken alone and in conjunction with Article 13) have been found to disclose violations of the Convention. As to the Government's objections to his claim for anticipated costs, the Court would not make an award as regards costs in respect of post-admissibility observations since none were required to be, or were, submitted on the applicant's behalf. On the other hand, it considers that the costs of researching, drafting and filing the Article 41 submissions were necessarily incurred and are reasonable as to quantum. 131. The Court, accordingly, awards the applicant a total sum of EUR 15,800 in respect of the costs of the Convention proceedings less EUR 725 paid by the Council of Europe to the applicant in legal aid, the net award in respect of the Convention proceedings amounting to EUR 15,075. 132. The total award in respect of the legal costs and expenses of the domestic and Convention proceedings amounts therefore to EUR 18,075. D. Default interest 133. 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 the disclosure of the footage by the municipal council had not been accompanied by sufficient safeguards and constituted disproportionate and unjustified interference with the applicant’s private life, in breach of Article 8 (right to respect for private life) of the Convention. Furthermore, at the relevant time, the applicant had not had an effective remedy for breach of confidence, in violation of Article 13 (right to an effective remedy) read in conjunction with Article 8 of the Convention. |
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